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Consent and the 2003 Sexual Offences Act

Comment 6th July 2010

 

 

The 2003 Sexual Offences act contains, alongside its important provisions against rape and sexual assault, several more worrying provisions that restrict consensual sexual activity.  Putting aside the obviously contentious question of what exactly the age of consent should be – (perhaps the best option is a flexible limit, set nominally at sixteen but allowing for the law to take seriously the views of the crime's purported victim, whatever their age might be, on a case by case basis) – there are a number of troubling inconsistencies in that concept's application, where the law chooses to ignore the free agency of a person that it elsewhere accepts.

   I have in mind three supposed offences that are dealt with in the act: abuse of position of trust, familial child sex offences, and sex with an adult relative. First, positions of trust. There can be no doubt that, where one person is in a position of trust over another, the relationship between the two is complicated immensely. The relationship between a sixteen year old girl and her teacher could never be the same as the relationship between that girl and a different man of the same age. Having said this, however, it is vital we remember that attempting to cut through these complications by the power of the law and of the state is a very dangerous idea.  We are talking about the fine nuances of emotion and of power in the interaction of two human beings.  The law is a bluntforce weapon of last resort, and should be kept as such.  There are already plentiful provisions in the act against sexual abuse – if abuse exists, those may be invoked, but if not, then it is the prerogative of individuals and citizens to determine their own lives and the courses of their relationships. 

     There is another possible reading of the 'breach of trust' offence, focusing not so much on any harm to the child under trust but rather on the adult's lack of responsibility towards the trust itself. Trust is breached when sexual activity occurs, and that in itself is enough to warrant legal repercussions.  But why should this be so? Anyone in a position of trust over a child has a duty of care towards them, as well as a duty to do well what ever it is they are supposed to be doing – teaching or medical practiciong or whatever.  How sexual activity is supposed to breach these duties is far from clear.  Consensual sex is consensual sex, and it is a breach of a human freedom to outlaw it, positions of trust or no. 

Much the same applies to familial child sex offences. Yes, it is a far from ordinary relationship for a child of consenting, and it poses its own difficulties. But it is best for people to deal with such difficulties either alone or with others, and without the interference of the law unless it is absolutely required.  The only other objection to these 'offences', if they are committed against children of consenting age – and the only objection whatsoever to the sex with adult relatives offence – is simply that such sexual activity is incest, and that incest is Very Wrong and Icky. This is not a reasonable excuse for the exercise of power over any member of a civilised community, against their will.

 

 

 

 

Why does this matter?

My idea is important because human freedom is threatened, and any threat to human freedom is important. It is also important because around it turns the difference between treating young people as free citizens with their own desires and capabilities, or treating them merely as potential victims.  It also contains the difference between treating those who hold positions of trust over children as mere providers of specific services, or treating them as human beings who are able to, and sufficiently responsible to, assist children and interact with them in  a full human relationship. It is the difference between legislating by principle or by prurient disgust. My idea is important because there ought not to be any restrictions under threat of any punishment on how two people may willingly share themselves with one another. 

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