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<h3><font face="book antiqua, times new roman, times" color="#996600" mstheme>Legal Issues: Children & Young People’s Sexual Health</font></h3>
<h6><font face="book antiqua, times new roman, times" color="#996600" mstheme>From: Newcastle Sexual Health Forum (2000) Guidance on consent and child protection
issues for those involved in promoting young people’s sexual health in Newcastle.
Appendix 3</font></h6>
<h3><font face="book antiqua, times new roman, times" color="#996600" mstheme>The Civil Law</font></h3>
<p>In general, the consent of the child or young person can be obtained where:</p>
<p>a) The young person is over the age of 16 years. In these circumstances, so long as
they are of sound mind, they have a statutory right to give consent under section 8 of the
Family Law Reform Act 1969. Parental consent is not required.</p>
<p>Or</p>
<p>b) The child or young person is under the age of 16 years, but is deemed capable of
giving consent in certain circumstances. This is commonly known as 'Gillick competency'
(see below).</p>
<p>Normally, no medical examination should take place if a child or young person is
competent to consent but refuses to do so.</p>
<p>However, those with parental responsibility (e.g. natural or adoptive parents, or the
local authority in possession of a care order) can override the refusal in some cases, but
only if the proposed treatment is not serious or controversial. In exceptional
circumstances, the refusal to consent can be overridden by the High Court.</p>
<p>If consent is not available, doctors can only provide those elements of treatment that
are immediately essential to secure the child or young person's welfare.</p>
<h3><font face="book antiqua, times new roman, times" color="#996600" mstheme> Gillick Competency</font></h3>
<p>In the case of Gillick v West Norfolk and Wisbech Area Health Authority (1985) 3 All ER
4092, the House of Lords reviewed the issue of consent with regard to young people under
16 years of age. It was held that the test to apply was whether the child had:</p>
<blockquote>
<blockquote>
<p><em>"Sufficient understanding and intelligence to enable him or her to understand
fully what was proposed"</em></p>
</blockquote>
</blockquote>
<p>This test requires an appreciation of the consequences of treatment including possible
side effects, and also the anticipated consequences of a failure to treat.</p>
<p>In the Gillick case, Lord Scarman identified the principle that parental rights yield
to the young person's right to make their own decisions when they reach a sufficient
understanding and intelligence to be capable of making up their own minds on such matters.</p>
<h3><font face="book antiqua, times new roman, times" color="#996600" mstheme> The Criminal Law</font></h3>
<p>This Appendix provides an overview of some of the Criminal Offences that may be
encountered. It is not meant to be comprehensive.</p>
<p>Remember, it is not your job to decide whether or not an offence has been committed. In
cases of doubt, advice should always be sought, preferably from the police or the Crown
Prosecution Service.</p>
<h3><font face="book antiqua, times new roman, times" color="#996600" mstheme> 2.1 Offences relating to females</font></h3>
<p>In all offences perpetrated by a male upon a female, the Sexual Offences Act 1993
abolished the legal presumption that a boy under the age of 14 was incapable of sexual
intercourse. All references to a man, therefore include reference to a boy.</p>
<p><strong>Intercourse with a girl under thirteen</strong></p>
<p>It is a serious arrestable offence for a man to have sexual intercourse with a girl
under the age of thirteen.</p>
<p><strong>Intercourse with a girl under sixteen</strong></p>
<p>It is an offence for a man to have unlawful sexual intercourse with a girl under the
age of sixteen. It is no defence that the girl consented to the sexual intercourse.</p>
<p>There is a defence to this charge if the man is under the age of 24, has not been
previously charged with a like offence, and believes the girl to have been the age of
sixteen or over, and that he has reasonable grounds for that belief.</p>
<p><strong>Heterosexual anal intercourse</strong></p>
<p>Section 143 Criminal Justice and Public Order Act 1994, removed the prohibition of
heterosexual anal intercourse in private between a man and a woman, where both parties are
over the age of 18 and both consent.</p>
<h3><font face="book antiqua, times new roman, times" color="#996600" mstheme>2.2 Offences relating to males</font></h3>
<p><strong>Homosexuality</strong></p>
<p>Consensual anal sex in private can now occur lawfully when the parties are over the age
of eighteen. If either is under that age, then an offence will have been committed.
Although, recent debate has taken place about lowering the age of consent to sixteen, the
proposed reform was defeated.</p>
<p>Sexual intercourse is deemed not to have taken place in private if more than two males
are present, or if it takes place in an area to which the public have access.</p>
<p><strong>Gross Indecency</strong></p>
<p>It is an offence for a man to commit an act of gross indecency with another man (either
in public or private) or to be a party to the commission of such an act to procure it.</p>
<p>No offence is committed if both parties are over the age of eighteen and do in fact
consent, and the act takes place in private.</p>
<h3><font face="book antiqua, times new roman, times" color="#996600" mstheme> 2.3 Offences relating to both sexes</font></h3>
<p><strong>Rape</strong></p>
<p>It is an offence for a man to rape a woman or another man. Rape is committed if a man
has sexual intercourse (whether vaginal or anal) with a person who, at the time, does not
consent to it, and he either knows that the person does not consent or is reckless as to
consent. ('Recklessness' has been defined as the 'couldn't care less' attitude).</p>
<p>Penetration is sufficient to constitute sexual intercourse; ejaculation is not
necessary. Consensual sexual intercourse becomes rape if the participating party ceases to
consent during intercourse.</p>
<p>The definition of rape was amended by the Criminal justice and Public Order Act 1994 to
include rape by a husband of his wife.</p>
<p> It is also an offence to aid, abet, procure or incite to commit rape.</p>
<p><strong>Indecent Assault</strong></p>
<p>It is an offence for any person (male of female) to make an indecent assault on either
a male or female. This is an arrestable offence. Indecency is that which is an affront to
modesty.</p>
<p>The test is whether what occurred was so offensive to contemporary standards of modesty
and privacy as to be indecent.</p>
<p>Assault usually includes physical contact and this offence can include such acts as
touching, kissing etc, as well as actual penetration (e.g. with a finger).</p>
<p>In the case of a girl or boy under the age of 16, consent to the act is no defence.</p>
<p><strong>Buggery</strong></p>
<p>It is an offence for a person to commit buggery with another person. This includes anal
sex by a man with either a man or a woman and subject to the exceptions mentioned earlier.</p>
<p>Less commonly, the offence is also committed by either a man or a woman in any manner
with an animal.</p>
<p>Buggery with a boy under the age of 16, or an animal or with any person who has not
consented (rape) is a serious arrestable offence.</p>
<p>It is also an offence to assault another person with intent to commit buggery, or to
procure a man to commit buggery.</p>
<p><strong>Incest</strong></p>
<p>It is an offence for a man to have sexual intercourse with a woman whom he knows to be
his grand-daughter, daughter, sister or mother.</p>
<p>The term 'sister' also includes half-sister.</p>
<p>It is an offence for a woman of the age of 16 or over to permit a man whom she knows to
be her grandfather, father, brother, or son to have sexual intercourse with her by her
consent.
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