Sex and the Law
Guide to under age sex (age of consent), consent, rape, sexual assault, outside sex, porn, abortions, confidentiality, marriage…. Boring but very important.
Little known fact: I have a law degree. Yes it’s Bish LLB (Hons). And for the first time in my working life it is relevant. These laws are the ones that people ask me about the most. They are for the UK (Great Britain and Northern Ireland).
Confidentiality for young people
Even if you are under 16, you have the right to a confidential service for condoms, contraception, check-ups and advice. Confidential means that clinics do not tell anyone they have seen you unless they need to protect you or someone else from a serious risk of harm. If they do have to tell someone they would always try to ask you first.
The legal age for marriage and civil partnerships is 16 with parental consent or 18 without. (In Scotland you don’t need parental consent at 16 – which is why Gretna Green is a famous place to get married). It’s legal for same sex couples to marry in the UK except in Northern Ireland.
A young woman under 16 can have an abortion without her parents knowing (if two doctors agree that she is mature enough and that it’s in her best interests). They are legal in Great Britain up to 24 weeks of pregnancy (terminations at this late stage of pregnancy are very rare).
In Northern Ireland abortion is not legally available unless in rare circumstances where the health of the foetus or the mother is at risk. Many women from Northern Ireland travel to other parts of the UK for a legal and free termination.
Young women usually want to tell parents or another responsible adult. Doctors will encourage this but will not force them to. It is a decision that only the woman can make: men have no legal say.
To find your local Reproductive Sexual Health or ‘Family Planning Clinic’ or Brook, where you can get referred for a termination (abortion) for free, click here. More about getting impartial advice about pregnancy and abortion here.
There are a number of laws to do with having sex outside. It can be illegal to show male or female genitals in public. It is illegal to have sex in a public toilet (even in a locked cubicle). It is also an offence to have sex in public if it is near a children’s play area.
People having sex outside can also be guilty of ‘outraging public decency’, unless they could have expected a reasonable degree of privacy and did what they could to prevent being seen.
That’s the legals, but what do you think? Should people have sex outside?
It is legal to look at porn so long as it does not feature: under 18s, sex with animals, torture, scenes of rape or sexual assault or violent scenes which are life threatening or likely to cause serious harm.
You need to be 18 to buy porn magazines or videos and most porn websites try to prevent under 18s from accessing them. Don’t film yourself having sex if you are under 18 because that’s child porn: seriously.
It’s also illegal to watch porn with someone under 18. (This is to try and prevent sexual abuse of children, but can apply even if you are both under 18 and both wanted to watch it.)
More about Porn Laws here
When having any kind of sexual contact with someone, both people must consent to it happening, otherwise it is against the law.
‘A person consents if [s]he agrees by choice, and has the freedom and capacity to make that choice.’ Just because someone isn’t protesting or saying no does not mean that they are agreeing to sex.
If someone is really drunk or stoned then they may lack the capacity to be able to consent, particularly if they pass out or forget what happened. This means that any sexual contact at that time could be unlawful; eg rape.
If there was any violence or perceived threat of violence, if the victim was trapped or locked in a room, if the victim couldn’t communicate their non-consent, if the victim was unconscious or if the victim was drugged, then the court may rule that there was no consent.
Also if the victim was tricked into sex (either about who or what it will involve) it is unlawful.
And consent is a continuing act, so someone may agree to something but if they then change their mind half way through, the other person must stop.
Rules about consent apply in marriage or any long term relationship. If someone (man or woman) does not want sex then you can not force them.
If you are in any doubt as to whether someone is consenting, or whether they have lost the capacity to consent, then don’t have sex. More about consent here.
Sex without consent
Sex without consent is against the law – there are lots of different crimes about this but all of them are really serious. Rape (penetration of mouth, vagina or anus with the penis), assault by penetration (with fingers or objects), sexual assault (any sexual touching at all), causing someone to have sex.
Apart from rape, the offender can be a man or a woman (or a transsexual male to female with a penis).
Those affected and want to report it or get support can report it to the Police, or a sexual assault referral centre. For more visit www.rapecrisis.org.uk
Under age sex
Young people are highly unlikely to be prosecuted for any of these offences below if the people involved were the same or similar age and if the sex was clearly agreed with no abuse or exploitation.
In the UK you have to be 16 to have sexual activity* with someone. So, a couple of 15 year olds would (technically) be breaking the law. If it was a 16 and 15 year old, the 16 year old would be breaking the law.
This applies to under 13s (which is a separate, more serious, offence) or between 13 to 16 (unless that person reasonably believes the other person to be over 16). This applies to men and women and is the same for all genders and sexualities.
Under age sex is illegal whether there was consent or not. So for example, it wouldn’t be a defence for an 18 year old to say that a 14 year old was agreeing to have sex. If the 14 was not agreeing to have sex that would be both rape/sexual assault and under age sex. Someone under 13 can’t consent to sex under the law so this would be treated as rape/sexual assault.
* Under the law (s78 Sexual Offences Act 2003 for you legal geeks) sexual activity is defined as what a reasonable person would consider sexual. So it’s not just penetrative sex that is illegal under 16, it could be masturbation, naked touching, or even touching over clothes.
There are a number of other offences to protect children and young people from abuse. (Again it’s unlikely that people of the same or similar age who clearly agreed and were not being abused would be prosecuted.)
Causing or inciting an under 16 to engage in sexual activity, either with them or someone else. (So this could include convincing someone to have sex with someone else (eg prostitution or group sex)).
It’s illegal to have sexual activity in front of someone under 16 (so someone masturbating on a webcam to someone under 16 is breaking the law).
It can be illegal to show porn to someone under 16 (if the purpose is for sexual gratification).
It is now illegal for someone over 18 to meet with someone under 16 after communicating with them on the internet for the purposes of sex (called ‘grooming’).
It’s illegal for anyone in a position of trust (eg teacher, youth worker) to have sex with someone they work with or look after who is under 18. There are also laws to prevent any sexual acts with someone under 18 who is a family member.
If you are really really interested in the law and sex here is the Sexual Offences Act 2003
© Justin Hancock 2015