Legal Issues: Children & Young People’s Sexual Health

From: Newcastle Sexual Health Forum (2000) Guidance on consent and child protection issues for those involved in promoting young people’s sexual health in Newcastle. Appendix 3

The Civil Law

In general, the consent of the child or young person can be obtained where:

a) The young person is over the age of 16 years. In these circumstances, so long as they are of sound mind, they have a statutory right to give consent under section 8 of the Family Law Reform Act 1969. Parental consent is not required.

Or

b) The child or young person is under the age of 16 years, but is deemed capable of giving consent in certain circumstances. This is commonly known as 'Gillick competency' (see below).

Normally, no medical examination should take place if a child or young person is competent to consent but refuses to do so.

However, those with parental responsibility (e.g. natural or adoptive parents, or the local authority in possession of a care order) can override the refusal in some cases, but only if the proposed treatment is not serious or controversial. In exceptional circumstances, the refusal to consent can be overridden by the High Court.

If consent is not available, doctors can only provide those elements of treatment that are immediately essential to secure the child or young person's welfare.

 Gillick Competency

In the case of Gillick v West Norfolk and Wisbech Area Health Authority (1985) 3 All ER 4092, the House of Lords reviewed the issue of consent with regard to young people under 16 years of age. It was held that the test to apply was whether the child had:

"Sufficient understanding and intelligence to enable him or her to understand fully what was proposed"

This test requires an appreciation of the consequences of treatment including possible side effects, and also the anticipated consequences of a failure to treat.

In the Gillick case, Lord Scarman identified the principle that parental rights yield to the young person's right to make their own decisions when they reach a sufficient understanding and intelligence to be capable of making up their own minds on such matters.

 The Criminal Law

This Appendix provides an overview of some of the Criminal Offences that may be encountered. It is not meant to be comprehensive.

Remember, it is not your job to decide whether or not an offence has been committed. In cases of doubt, advice should always be sought, preferably from the police or the Crown Prosecution Service.

 2.1 Offences relating to females

In all offences perpetrated by a male upon a female, the Sexual Offences Act 1993 abolished the legal presumption that a boy under the age of 14 was incapable of sexual intercourse. All references to a man, therefore include reference to a boy.

Intercourse with a girl under thirteen

It is a serious arrestable offence for a man to have sexual intercourse with a girl under the age of thirteen.

Intercourse with a girl under sixteen

It is an offence for a man to have unlawful sexual intercourse with a girl under the age of sixteen. It is no defence that the girl consented to the sexual intercourse.

There is a defence to this charge if the man is under the age of 24, has not been previously charged with a like offence, and believes the girl to have been the age of sixteen or over, and that he has reasonable grounds for that belief.

Heterosexual anal intercourse

Section 143 Criminal Justice and Public Order Act 1994, removed the prohibition of heterosexual anal intercourse in private between a man and a woman, where both parties are over the age of 18 and both consent.

2.2 Offences relating to males

Homosexuality

Consensual anal sex in private can now occur lawfully when the parties are over the age of eighteen. If either is under that age, then an offence will have been committed. Although, recent debate has taken place about lowering the age of consent to sixteen, the proposed reform was defeated.

Sexual intercourse is deemed not to have taken place in private if more than two males are present, or if it takes place in an area to which the public have access.

Gross Indecency

It is an offence for a man to commit an act of gross indecency with another man (either in public or private) or to be a party to the commission of such an act to procure it.

No offence is committed if both parties are over the age of eighteen and do in fact consent, and the act takes place in private.

 2.3 Offences relating to both sexes

Rape

It is an offence for a man to rape a woman or another man. Rape is committed if a man has sexual intercourse (whether vaginal or anal) with a person who, at the time, does not consent to it, and he either knows that the person does not consent or is reckless as to consent. ('Recklessness' has been defined as the 'couldn't care less' attitude).

Penetration is sufficient to constitute sexual intercourse; ejaculation is not necessary. Consensual sexual intercourse becomes rape if the participating party ceases to consent during intercourse.

The definition of rape was amended by the Criminal justice and Public Order Act 1994 to include rape by a husband of his wife.

 It is also an offence to aid, abet, procure or incite to commit rape.

Indecent Assault

It is an offence for any person (male of female) to make an indecent assault on either a male or female. This is an arrestable offence. Indecency is that which is an affront to modesty.

The test is whether what occurred was so offensive to contemporary standards of modesty and privacy as to be indecent.

Assault usually includes physical contact and this offence can include such acts as touching, kissing etc, as well as actual penetration (e.g. with a finger).

In the case of a girl or boy under the age of 16, consent to the act is no defence.

Buggery

It is an offence for a person to commit buggery with another person. This includes anal sex by a man with either a man or a woman and subject to the exceptions mentioned earlier.

Less commonly, the offence is also committed by either a man or a woman in any manner with an animal.

Buggery with a boy under the age of 16, or an animal or with any person who has not consented (rape) is a serious arrestable offence.

It is also an offence to assault another person with intent to commit buggery, or to procure a man to commit buggery.

Incest

It is an offence for a man to have sexual intercourse with a woman whom he knows to be his grand-daughter, daughter, sister or mother.

The term 'sister' also includes half-sister.