Chapter

‘When the Kissing has to Stop’: Children, Sexual Behaviour, and the Criminal Law

Heather Keating

in Law and Childhood Studies

Published in print March 2012 | ISBN: 9780199652501
Published online May 2012 | e-ISBN: 9780191739217 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199652501.003.0017

Series: Current Legal Issues

‘When the Kissing has to Stop’: Children, Sexual Behaviour, and the Criminal Law

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There are, perhaps, few areas where our confused and conflicting constructions of childhood are brought into such profound tension as that concerning the law relating to consensual sexual behaviour between children or young people. This chapter highlights these tensions and considers the way in which the current law, contained within the Sexual Offences Act 2003, attempts to resolve them. It does so, by reflecting briefly on constructions of childhood, children's sexuality, and what is known about their sexual behaviour, before exploring the legal framework. That legal framework includes not only the Sexual Offences Act 2003 but also the age of criminal responsibility. The chapter considers whether prohibiting sexual activity, including even kissing, cuddling, and petting, below the age of sixteen (the age of consent) is the most appropriate legal response in achieving the difficult ‘balance between protection from abuse...on one hand and permitting sexual expression of young people as they proceed through to adulthood on the other’. It focuses particularly on the current protective strategy to resolving that dilemma by which such behaviour, which we know children engage in, is criminal but prosecutorial discretion is relied upon to prevent ‘normal’, mutually agreed early teenage sexual behaviour being prosecuted. The chapter argues that this, taken together with an age of criminal responsibility which is fixed at ten, renders the law inconsistent, illogical, and strikingly confused: children are held to be incapable of giving valid consent on the one hand and responsible for their behaviour on the other.

Keywords: sexual behaviour; children; sexuality; young people; Sexual Offence Act 2003; criminal responsibility

Chapter.  10360 words. 

Subjects: Family Law

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