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16 and 17 year olds & the Sexual Offences Act 2003

Comment 5th July 2010

Repeal of Part 1, Section 45, Clauses 1 and 2, and related

This section extends the definition of "child" from the Protection of Children Act (1978) to cover persons of 16 and 17 years. This age group is thereby covered by child pornography laws in the aforementioned 1978 act and elsewhere. It is thusly illegal to make "indecent" images of 16 and 17 year olds (or indeed in most cases for 16 and 17 year olds to make such images of themselves.) [The term "indecent" is undefined in law.]

The main problem with this legislation is that it is logically and morally incompatible with the age of sexual consent being 16 years. A recording or depiction of a lawful act should not be unlawful; neither should persons who are legally recognised as sexual beings – and therefore adults in that regard – be prohibited from recording or depicting themselves, or consenting to be recorded or depicted, as sexual beings. While the motivation behind the extension of protection to 16 and 17 year olds was well-meaning, it does not make rational or moral sense that an image or recording of a person with whom one can legally have sexual intercourse should be legally defined as "child pornography". The protection of children and young people from exploitation is paramount to a just and decent society; however, the laws by which we live our lives should also make a modicum of sense. This inconsistency in the legislation could alternatively be rectified equally well by raising the age of sexual consent to 18.

Why does this matter?

The law is morally incompatible with other extant legislation, and criminalises behaviour (through its recording/witnessing) that is not in and of itself unlawful.


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