One of the biggest challenges for anyone today is understanding the idea of consent in a sexual context. Parents, schools, young people and the legal authorities today need to help adolescents safely navigate the twilight zone between 16 years and 18 years of age. In this zone it is legal to have sex but not to share nude pictures. Internet technology makes the creation and transmission of sexually arousing images available to anyone with a smartphone, including any child. Sex crime is up 53% since 2006-7 according to the 2015-16 figures put out by the Scottish Government. This huge rise also coincides with the advent of greater internet access.
However the age of consent for sexual intercourse is 16 years. Many adolescents do not realize that despite being over the age of consent for sex, they are not allowed in law to take erotic selfies and send them until they are 18 years of age. Possession of photos of ‘children’ without consent is illegal. A child under 13 does not, under any circumstances, have the legal capacity to consent to any form of sexual activity.
The law in this area was intended primarily to apply to adult men and the small proportion of women with an interest in grooming children with whom they were planning to have sexual contact or who seek to involve children in prostitution or pornography. The law in England and Wales states “Children involved in prostitution are primarily victims of abuse and people who take advantage of them by exploiting them, are child abusers.”
Now the strict interpretation of ‘child’ means that teenagers exploring their sexual curiosity, with the help of new technology, can be charged with a serious sexual offence.
Of course prosecutors are careful to look at all the circumstances and only mark a case for prosecution if it is in the public interest to do so.
They will take into account such factors as the age difference between the parties, parity between the parties in regard to sexual, physical, emotional and educational development and the nature of their relationship.
In 2014 in England, a schoolgirl was investigated after sending a topless photo of herself to her boyfriend. He later received a caution having forwarded the image to his friends after he and the girl ceased to be a couple. A new law, Abusive Behaviour and Sexual Harm Act, deals with ‘revenge porn’ i.e. the transmission of sexual images without permission. See separate page on revenge porn on it.
The issue here is the absence or breach of consent. A ‘zero tolerance’ approach to such activity appears to have been adopted by the prosecution authorities and the police in the UK as well.
This is a general guide to the law and does not constitute legal advice.