We bid you be of hope (again) – A case of sexual consent

Abstract

The age of consent is a polarised concept which has caused a dissonance between the law and society for the past one hundred fifty years. s9 Sexual Offences Act 2003 epitomises the discord when it creates an offence of Sexual Activity with a Child which envisages that a girl under the age of 16 (and even those under 13) can consent to penetrative sexual acts with an adult. This article contends that whilst it is meritorious of Parliament to create an offence of strict liability which renders liable, any person having sexual intercourse with a girl under 16, the symbolic value of the broad offence label does little to communicate the full extent of the guilty conduct of the perpetrator (where penetration is involved). It argues that the label in fact perpetuates attitudes toward girls under 16: that they are self-determinate, sexually autonomous miscreants sent to inveigle ordinary men with their youthful and phlegmatic erotism. It contends that girls between 13 and 16 are learning to become autonomous adults and the fragility of their vulnerability throughout this process is something which Parliament has a duty to protect. It suggests that the law should thus, deem those under the age of 16 as lacking the legal capacity to consent to sexual intercourse which would give rise to a rebuttable presumption of non-consent under the auspices of the Rape offence.