Working with Sexually Active Young People under the Age of 18

Last updated: December 1, 2008

2. Legislative Background

2.i Sexual Offences Act 2003

The aim of the legislation is to provide an effective legal framework governing sexual offences, taking into account technological advances and trends in offending. Changes include a new offence of grooming. This could include developing a relationship through the Internet in order to abuse (e.g. meeting or travelling to meet a child after communicating with them on at least two occasions); befriending a young person by indulging/ coercing him/ her with gifts, treats, money, or drugs; developing a trusting relationship with the child’s family). Also new offences of facilitating a child sex offence; offences relating to the abuse of trust; offences against those with mental disabilities and familial sex offences. In brief:

under 13’s cannot consent to sexual activity by law. It only has to be proved that sexual activity took place for an offence to have been committed.
between 13 ?16 years, children and young people are legally incapable of giving consent. However the issue may be debated according to the circumstances of the case.
from 16 years and over, a young person can give valid consent to any sexual activity. Young people 16 and 17 are not deemed to be able to give consent if the activity is with an adult in a position of trust or a family member as defined by the Sexual Offences Act, 2003.
young people still have a right to confidential advice on contraception, condoms, pregnancy and abortion, even if they are under 16.
although the age of consent remains at 16, the law is not intended to prosecute mutually agreed teenage sexual activity between young people of a similar age, unless it involves abuse or exploitation.
there is no minimum age to rape. If two 12 years olds ‘consensually’ experiment with penetrative sex, with nothing to suggest exploitation, the perpetrator commits an offence of rape.

2.ii Criminal Justice Act 2003

This greatly increases the protection afforded to victims, and the new regulations are capable of permitting evidence to be introduced as hearsay evidence where the victim is in fear, subject to certain important safeguards.

2.iii Fraser Guidelines

The Fraser guidelines give guidance on providing advice and treatment to young people under 16 years of age. These hold that sexual health services can be offered without parental consent providing that: -

The young person understands the advice that is being given
The young person cannot be persuaded to inform or seek support from their parents, and will not allow the worker to inform the parents that contraceptive/protection e.g. condom advice is being given
The young person is likely to begin or continue having intercourse with or without contraception or protection by a barrier method
The young person’s physical or mental health are likely to suffer unless they receive contraceptive advice or treatment
It is in the young person’s best interest to receive contraceptive/safe sex advice and treatment without parental consent.

(The Fraser Guidelines, also known as the Gillick Competency test. In 1980‘s the House of Lords ruled that young people under 16, who are fully able to understand what is proposed, and its implications, are competent to consent to medical treatment regardless of age).