Parents: Let’s talk about sex
A guide to some of the legal pitfalls your children may face as they mature
As parents, we all face the dilemma of when to tell our children about the facts of life, when to make them aware of “stranger danger”, the perils of the internet and sexual predators. We know that we must equip them with the tools that they need to deal with potential dangers that others can cause them. What we don’t tend to give much thought to are the legal difficulties that they may cause themselves, when they move into the world of relationships and sexual activity.
This article is intended to give some pointers as to what to make your children aware of. It doesn’t deal with all the possible issues and it only deals with activity in which both parties consent. Consent is another issue entirely and it will be the subject of a separate article.
The new Sexual Offences (Jersey) Law 2018
The new Sexual Offences (Jersey) Law 2018 is coming into force on the 23rd November 2018 and this law introduces some new offences which may interest you.
This law makes it an offence for a child (a person who is aged 17 or younger) to engage in any sort of sexual activity with another person who is aged 15 or younger. Touching is included within this offence and so is “any other act”. The act has to be sexual for it to be criminal. This is defined as being an act (including penetration, touching or communication) which is sexual if a reasonable person would, in all the circumstances of the case, consider it to be sexual.
Benefits and Pitfalls
On the one hand this rectifies a current gender imbalance in the present law, which is that it is only the male who can be charged with a criminal offence if he has sex with a female under the age of 16. As from the 23rd November 2018, the female will also be liable to be charged. It also further opens the door to prosecutions for sexual communications, which in the age of “sexting” and cyber bullying, must be a positive progression.
On the other hand, if you consider the possible extent of “any sort of sexual activity”, it is extremely broad. There is a concern that it might cover the “kissing behind the bike shed” scenario, which some might consider that that would be a step too far.
It must be remembered that prosecutions for these offences have a negative impact on all aspects of the life of those charged for years to come and long after the actual sentence has been served. The sentence is up to 5 years’ imprisonment and a fine, although the pair must be sentenced as youths which mean that different considerations apply than to sentencing an adult. Those considerations focus on whether the individuals have a history of failing to respond to non-custodial penalties, or whether the offence is so serious that a non-custodial sentence cannot be avoided.
Any decision to prosecute would however be given careful consideration by the Law Officers and one would hope that good sense is applied to the application of this law.
If a decision is ever made to prosecute two teens in these circumstances however, it would be up to the fact finders to decide whether this was in fact a sexual act.
Abuse of trust
On a different note, let’s suppose your teen (aged 18 or over) coaches at a local sports club or coaches in some sort of activity where they are in effect in a position of authority over a younger person. If they then engage in a sexual act with one of the younger teens in their care, who must be aged 16 or 17 for the purposes of this offence, they can be convicted of the offence of “abuse of trust by a sexual act against a person aged 16 or 17”. One of the defences open to your teen would be to be able show that they had been in a relationship already before the position of trust came into being.
Another defence would be to show that your teen reasonably believed that the person was also over the age of 18. The maximum sentence for this is 5 years’ imprisonment together with a fine.
If you would like to discuss these issues, please feel free to contact Rebecca Morley-Kirk on Rebecca.Morley-Kirk@viberts.com