The story of Alison & Peter – the complexities of consent in...

The story of Alison & Peter – the complexities of consent in the 21st Century

2
SHARE

Introduction

We looked a little while ago at some of the problems thrown up by technology and teenagers. Specifically, the fact that teenagers could be prosecuted for extremely serious sexual offences for swapping ‘sexy selfies’.

A good example of the muddle that the law is in was given by the Daily Mirror on 13th May 2015.

 

Facts

‘Alison’ is 17 and her boyfriend ‘Peter’ is 22 (both are pseudonyms). Alison sent some ‘intimate photographs’ of herself to Peter’s phone. She said (not unreasonably, you may think) “We can have sex, how is sending him a few pictures of myself [be] such a crime“?

Both were arrested and interviewed (with the consequence that their DNA will be on the database, amongst other consequences). Fortunately, due to her age, Alison was not prosecuted, but Peter was – for possession of child pornography.

We don’t know the outcome of the case, but there does not appear to be any defence. If so, the sentence will be governed by the Sentencing Guidelines for Sexual Offences (page 79). We don’t know the details of the photos, but on the basis it involved non-penetrative activity, the starting point would be 6 months in prison. He will be subject to the Sexual Offenders Register.

 

Why is this a crime?

It appears to be an oddity in the law – the age of consent is 16 (generally), so why is it unlawful to take a photo of doing something that is perfectly lawful?

This change was introduced by s45 Sexual Offences Act 2003. The official reason was (I think) to comply with the optional 3rd Protocol to the UN Convention on the Rights of the Child which was to outlaw child pornography (with a child defined in the main convention as someone aged under 18).

There is a limited exemption for people who are married or are living ‘together as partners in an enduring family relationship‘. Whilst it is understandable why this defence is here, it makes it even less clear what the ‘harm’ that the statute is trying to avoid is here.

One obvious issue is whether this is lawful under Arts 8 (and less clearly 10) ECHR. This was argued in the case of DM [2011] EWCA Crim 2752. The argument was that a prosecution (where everything was consensual) was a breach of someone’s private life, as well as their right to lawfully give and receive information.

This did not succeed (probably unsurprisingly). It was described as ‘a bold submission‘, which doesn’t seem to me to be completely fair – it’s a fairly obvious submission, and one which clearly has some merit. It is unclear why the interference in the rights of the two people who are able to consent to sexual activity is a proportionate one – it seems to me to be irrational on the face of it. One keeps coming back to the question that Alison asks – why is this unlawful – if you can consent to sex, why can’t you consent to having a sexual photograph of yourself taken?

It may be that there is some good reason for it, but it deserves a fuller analysis than it received. Consent is a complicated enough question at the moment anyway, without this added complication. It is to be hoped that the ECHR give the matter consideration at some point, although I won’t be holding my breath.

 

SHARE
Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

2 COMMENTS

  1. This is a question that has been proffered for years. The fact is that both of the above individuals are above the age of consent as prescribed by the SOA 2003, however, where they document it they can simultaneously become criminals. Whether or not a ’17 year old’ is mature enough to make rational decisions concerning all the negative implications of producing these images/videos is one which needs to be explored. Of course, as is documented highly, a child is someone under the age of 18. Therefore, is it not palpable that the laws in place prevent the production and distribution of photos/videos which might construed as a form of child exploitation? Often, people do not fully understand who they are conversing with – a big problem.

    There has been academic debate with regards to this quandary. The question that is often tendered is: if one has the relevant cognitive ability to consent to sex, why can he/she, while fully understanding the consequences and risk not elect, at his or her choice, to engage in such communications? Of course, there is an interrelationship with morality and legality, and while the law does, ostensibly seen obfuscating and outlandish, it does, inter alia, protect fundamental exploitation and transmission of pornography which is rightly outlawed. After all, there are some cases where images have ended up on forums often used by child sex-offenders.

    It remains bewildering that amidst the deluge of case law, it is plausible that cases of consensual sex would meet the “public interest” demand, it certainly seems counterproductive to prosecute a party for a case of consensual sexting, unless, of course, it involved grooming or sexual abuse of a minor? It seems in the case, and the cases alike, that the issue was with one of the participants: in the scenario above, Peter is 22, he is therefore an adult. Is it therefore in the public interest to prosecute wherein a party is considerably over the age of consent, and majority? A 22 year old should know better than for example, a 17 year old in the same situation?

    The fact is, if it goes unprosecuted due to lack of public interest, does it not open up an arena for predators to strike against 16 and 17 year olds, who, as observed, are classified as children?
    Of course, this isn’t concerned with consent, however, can it be said that there is certainty in law? Many teenagers are unaware that while it is illegal to have sex until the age of 16, one must have attained the age of majority before sexting is permitted by law? This most certainly needs to be conversed more effectively, by schools/education providers perhaps?

    The fact remains: a person under the age of 18 is a child. Would it be proper or improper to allow it? While it seems that the law is practical in its application, clearly there are instances where it is beyond belief to prosecute, wherein there is mutual consent. This law does not just cause misperception here in the UK, other jurisdictions are known to be nonplussed by its effects.

  2. Hi dan,

    I wrote a similar post about sexting on my blog last week, what shocked me was the incident last year between two teenagers which resulted in Nottinghamshire Police force writing to the schools in its remit and notifying them that teenagers who “sext” and send indecent images to their partners or otherwise face prosecution and registration on the sex offenders list. In that case the girlfriend who sent the image and boyfriend who recieved, we’re both given a police caution.
    It seems on the face of it that the legislation was imemented originally to protect children, but doesn’t specify that they cannot also be the offenders. Surely there is a need to reform the approach?
    After all two consent parties, at the age of consent face prosecution when they aren’t even aware they are breaking the law!

LEAVE A REPLY