The law on sex factsheet

Last updated April 2015

This factsheet summarises some of the key points of UK law relating to sexual behaviour. It does not constitute legal advice.

PLEASE NOTE An up-to-date PDF version of this factsheet is not currently available but will be available later in 2015.

RELATED FACTSHEET Sex and the Law, Northern Ireland (PDF)

Contents

The age of consent for sex

England and Wales

The age of consent to any form of sexual activity is 16 for both men and women. The age of consent is the same regardless of the gender or sexual orientation of a person and whether the sexual activity is between people of the same or different gender.

It is an offence for anyone to have any sexual activity with a person under the age of 16. However, Home Office guidance [1] is clear that there is no intention to prosecute teenagers under the age of 16 where both mutually agree and where they are of a similar age.

It is an offence for a person aged 18 or over to have any sexual activity with a person under the age of 18 if the older person holds a position of trust (for example a teacher or social worker) as such sexual activity is an abuse of the position of trust.

The Sexual Offences Act 2003 provides specific legal protection for children aged 12 and under who cannot legally give their consent to any form of sexual activity. There is a maximum sentence of life imprisonment for rape, assault by penetration, and causing or inciting a child to engage in sexual activity.

Scotland

The age of consent to any form of sexual activity is 16 for both men and women, so that any sexual activity between an adult and someone under 16 is a criminal offence. The age of consent is the same regardless of gender or sexual orientation.

There are possible defences if the sexual activity does not involve penetrative or oral sex. These are if the older person believed the young person to be aged 16 or over and they have not previously been charged with a similar offence, or the age difference is less than two years.

Sexual intercourse (vaginal, anal) and oral sex between young people aged 13–15 are also offences, even if both partners consent. A possible defence could be that one of the partners believed the other to be aged 16 or over.

Guidance from the Scottish Government acknowledges that not every case of sexual activity in under-16s will have child protection concerns, but young people may still be in need of support in relation to their sexual development and relationships.[2]

A range of specific offences protect children under 13, who cannot legally give their consent to any form of sexual activity. The maximum penalty could be life imprisonment for rape, sexual assault, sexual assault by penetration, or causing a young child to participate in sexual activity. There is no defence that the accused believed that the child was older.

Northern Ireland

The age of consent to any form of sexual activity is 16 for both men and women. The age of consent is the same regardless of gender or sexual orientation.

The Sexual Offences (Northern Ireland) Order 2008 introduced a series of laws to protect children under 16 from abuse. However, the law is not intended to prosecute mutually agreed teenage sexual activity between two young people of a similar age, unless it involves abuse or exploitation.

Specific laws protect children under 13, who cannot legally give their consent to any form of sexual activity. There is a maximum sentence of life imprisonment for rape and assault by penetration. There is no defence of mistaken belief about the age of the child, as there is in cases involving 13–15 year olds.

Article 79 of The Sexual Offences (Northern Ireland) Order 2008 amended “relevant offence” for section 5(1) of the Criminal Law Act (Northern Ireland) 1967 to exclude the duty to report information about the commission of an offence under Article 20. This therefore means that there is no statutory duty under criminal law to report to the police cases of sexual activity involving children under the age of 16 under articles 16 to 19 of the Order, where the other party is aged under 18.

This exclusion does not apply to information about offences against children under 13, as set out in Articles 12 to 15 of the Order.

Separate guidance has been issued by the Department of Health, Social Services and Public Safety to inform practitioners and professionals about the implications of the law on child protection procedures.[3] Attention is also drawn to the Regional Area Child Protection Policy and Procedures.

Contraception and under 16s

Health professionals in the UK may provide contraceptive advice and treatment to young people under 16 if, in their clinical judgement, they believe it is in the young person’s best medical interests and the young person is able to give what is considered to be informed consent.[2, 4, 5, 6]

The various sexual offences laws in force in the UK do not affect the ability of professionals to provide confidential sexual health advice, information or treatment. Each specifically states that it is not an offence provide information, advice and/or treatment if it is in order to protect the young person’s sexual health, physical safety or emotional wellbeing.

Rape

In each UK country, a man would commit rape if he intentionally penetrates with his penis the vagina, mouth or anus of another person, male or female, without that person’s consent or if they are under 13, as young people aged 12 and under are not legally able to give consent to any sexual activity.

This particular sexual offence can only be committed by a man. A woman cannot be charged with the offence of rape as this is defined as penile penetration, but she could be charged with another offence such as causing a person to engage in sexual activity without consent, sexual coercion or assault, or assault by penetration. These offences may not all apply in each different UK country.

Sexual assault by penetration

This offence was introduced by the Sexual Offences Act 2003 (in England and Wales), The Sexual Offences (Northern Ireland) Order 2008, and the Sexual Offences (Scotland) Act 2009. It is an offence for someone, male or female, intentionally to penetrate the vagina or anus of another person with a part of their body or anything else, without their consent. The purpose also has to be sexual.

Practitioners who legitimately conduct intimate searches or medical examinations are excluded from this offence.

Sexual assault and indecent assault

In England and Wales it is an offence to touch someone else with sexual intent if the other person has not consented to such touching and if the person carrying out the offence does not reasonably believe that the other person consented.

In Northern Ireland it is an offence (sexual assault) for a person intentionally to touch sexually another person without reasonable belief that they consented. Touching covers all physical contact, whether with a part of the body or anything else, or through clothing

In Scotland the range of sexual assault offences relating to ‘sexual touching’ is similar, with the addition of sexual penetration of the vagina, anus or mouth; ejaculating semen onto someone; spitting or urinating onto them. There is some overlap with the offences of rape and sexual assault by penetration. There is also a common law offence of assault in Scotland, which has a wider application.

In Northern Ireland, indecent assault on a woman is also a common law offence, while indecent assault on a man is provided for in The Criminal Justice (Northern Ireland) Order 2003. The definition of indecent is:

‘... conduct that right-thinking people will consider an affront to the sexual modesty of a woman’

‘... [would] right-minded persons ...consider the conduct indecent or not’

‘... [was] what occurred ... so offensive to contemporary standards of modesty and privacy as to be indecent’.

The person must also have intended to indecently assault.

Exposure

England, Wales and Northern Ireland

It is an offence for someone to expose their genitals if they intend that someone else will see them and if they intend to cause that person (or persons) 'alarm or distress'.

It is not a crime to be naked in public but it is possible that a naked person could be arrested and charged with causing harassment, alarm or distress under the Public Order Act 1986 if they do not put some clothes on when a member of the public or a police officer asks them to do so.

Scotland

It is an offence for someone to expose their genitals in a sexual manner if they intend that someone else will see them and without that person consenting (or without any reasonable belief they consent) AND if they also intend to obtain sexual gratification or to humiliate, distress or alarm the other person.

Grooming

England and Wales

It is an offence to befriend a child on the internet or by other online means and meet or intend to meet the child with the intention of abusing them. A Risk of Sexual Harm Order can be imposed on adults in order to prevent them from engaging in inappropriate sexual behaviour such as having sexual conversations with children online. The police can apply for such orders if they believe that someone poses a risk to young people under 16.

Northern Ireland

Sexual grooming is covered under The Sexual Offences (Northern Ireland) Order 2008. It is an offence for a person aged 18 or over to meet or communicate with a person aged under 16 two or more times and then subsequently meet or intend to meet them with the intention of committing a sexual offence.

Scotland

The offence of 'grooming' was introduced under the Protection of Children and Prevention of Sexual Offences Act 2005. Grooming is described as a person intentionally developing a relationship with a young person under the age of 16 'in order to gain their trust and persuade them into vulnerable situations where they can then be sexually assaulted'. A Risk of Sexual Harm Order can be imposed on a person by the courts if that person's behaviour suggests they pose a risk of sexual harm to a particular child or to children generally.[7]

Pornography and images of child abuse

In England and Wales, there is no standard legal definition of the term ‘pornography’. However, legal guidance from the Crown Prosecution Service[8]  says that an image is pornographic if it can be reasonably assumed that it was produced solely or principally for the purpose of sexual arousal. Pornography is legal as long as those who appear in it are aged 18 or over and as long as it does not contain anything defined as extreme pornographic imagery (see below).

A judge or jury determines whether an image is pornographic or not simply by looking at the image. The Criminal Justice and Immigration Act 2008 (England, Northern Ireland and Wales) made it an offence to possess an extreme pornographic image. An extreme image is defined in the Act as one which is ‘grossly offensive, disgusting or otherwise of an obscene character’ and if it portrays in an explicit and realistic way any of the following:

(a) an act which threatens a person’s life;
(b) an act which results, or is likely to result, in serious injury to a person's anus, breasts or genitals;
(c) any sexual activity or interference with a human corpse;
(d) any sexual activity between a person and an animal.

In Scotland, extreme pornography is defined by the Criminal Justice and Licensing (Scotland) Act 2010. The definition is similar to that in England, Wales and Northern Ireland but also includes “an act which takes or threatens a person’s life” and “rape or other non-consensual penetrative activity”.

The law covers images whether they are moving or still images.

The Audiovisual Media Services Regulations 2014 introduced new legislation covering pornography made and distributed in the UK through video on demand and streaming services. This type of pornography must only show material which would meet the criteria for an R18 certificate under British Board of Film Classification guidelines. If the material has received, or would be expected to receive, an R18 rating it can only be distributed if steps are taken to ensure people under 18 will not normally see or hear it.

The Protection of Children Act 1978 with the Criminal Justice Act 1988 make it an offence for anyone to take, allow to be taken, possess, show, distribute or publish any indecent image of a child. A child is defined as anyone aged under 18 for the purposes of these Acts.

Definitions of some common terms

Consent

The Sexual Offences Act 2003 for England and Wales says that a person consents to something if that person ‘agrees by choice and has the freedom and capacity to make that choice’.

Northern Ireland defines consent as a person having the capacity to make a choice.

Scotland: ‘free agreement’. An offence will have taken place if the victim did not consent, or the accused had no reasonable belief that they consented.

The laws of each UK country also allow for a range of circumstances which may affect a person’s capacity to freely consent, such as when they are asleep or have been subject to threats or violence.

Sexual

England and Wales: penetration, touching or any other activity is sexual if a reasonable person would think that it is, by nature, sexual (for example, sexual intercourse or masturbation). An activity would also be sexual where the circumstances or purpose of the person carrying out the activity make it sexual. For example, someone who deliberately strokes the genital region of someone else, even if fully clothed, can have sexual intent which would make this activity a sexual act.

Northern Ireland: covers activity that the reasonable person would always consider to be sexual because of its nature, such as sexual intercourse.

Scotland: if a reasonable person would, in all the circumstances of the case, consider it to be sexual.

Legislation

References

  1. Home Office, Children and Families: Safer from Sexual Crime – The Sexual Offences Act 2003, London: Home Office Communications Directorate, 2004.
  2. Scottish Government, National Guidance - Under-age Sexual Activity: Meeting the Needs of Children and Young People and Identifying Child Protection Concerns, 2010, accessed April 2015.
  3. Department of Health, Social Services and Public Safety, Child protection, accessed April 2015.
  4. Department of Health, Best Practice Guidance for Doctors and Other Health Professionals on the Provision of Advice and Treatment to Young People Under 16 on Contraception, Sexual and Reproductive Health, 29 July 2004, accessed April 2015.
  5. National Assembly for Wales, Best practice advice on the provision of effective contraception and sexual health advice services for young people. Welsh Health Circular (2001) 041, accessed April 2015.
  6. Northern Ireland. Department of Health, Social Services and Public Safety, Reference guide to consent for examination, treatment or care (PDF). (Belfast: DHSSSNI, 2003), accessed April 2015.
  7. Scottish Government, Guidance: Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, accessed April 2015.
  8. Crown Prosecution Service, Legal Guidance: Extreme Pornography, accessed April 2015.

Further reading

Stevenson, Kim et al. Blackstone's Guide To The Sexual Offences Act 2003. Oxford University Press, 2004.

The Scottish Government, Guidance on the Sexual Offences (Scotland) Act 2009, accessed April 2015.