The age of consent for sexual activity is 16 in England and Wales and applies to heterosexual and same sex relationships. If the older person in the relationship is deemed to be in a position of trust, then the age of consent rises to 18. There is an absolute bar to a defence where the child is under the age of 13 when the sexual activity occurs.
In law, a child aged 12 or younger cannot consent to sexual activity in any circumstances and this is therefore regarded as rape, whether they looked older or ”consented ” to or initiated sexual activity. It cannot be stressed enough; if the child is 12 or younger, then it is illegal in every case.
The legislation
The Sexual Offences Act 2003 contains four offences regarding those committed on children under the age of 13. These are:
- Section 5: Rape – it is an offence for an individual to intentionally penetrate with his penis, the vagina, anus, or mouth.
- Section 6: Assault by penetration – it is an offence for an individual to intentionally sexually penetrate the vagina or anus with a part of their body, or anything else.
- Section 7: Sexual assault – it is an offence to sexually touch a child under the age of 13.
- Section 8: it is an offence to cause or incite a child under 13 to engage in sexual activity.
The issue of consent
Consent in relation to any of the offences listed above is immaterial and provides no defence to the crime. In any event, children under the age of 13 cannot consent in any circumstance to any sexual activity. It is also no defence for a defendant to have had a ‘reasonable belief’ that the child was not under 13.
For children aged between 13 and 15, there is a defence that there was a ‘reasonably objective belief that the other party was aged 16 or over, and they consented to the sexual activity taking place’. During their investigations, the police will scrutinise social media accounts and text messages for anything to support the case the accused knew the other party was under 16.
Penalties
For the prosecution case to successfully achieve a conviction, they need to prove that the sexual activity actually took place and that it was intentional, and, the age of the child on the date the sexual activity took place.
Sections 5 and 6 can only be dealt with in the Crown Court and carry a maximum custodial sentence of life imprisonment. Section 7 is triable either way. This means that it can be dealt with in a Magistrate’s Court or Crown Court. The more serious the offence, the greater the likelihood it will be heard in the Crown Court, where the maximum prison sentence is 14 years. Section 8 offences will be heard in the Crown Court only if penetration has occurred, for which a life sentence is the maximum that can be handed down. If the sexual activity has not involved penetration, the offence is classified as triable either way, where a defendant can receive a maximum custodial sentence of 14 years.
In all cases, upon release, the offender will be placed on the Sex Offenders Register.
Contact Our Sexual Offences Defence Lawyers (Yorkshire, London, Birmingham, Manchester)
Our expert Sexual Offence Defence Solicitors are available 24 hours a day, 7 days a week, ready to advise and assist. For more information, please contact Stuart Sutton on 07798 753 720 or get in touch via our online contact form.
