ABSTRACT

This chapter will consider the issue of the higher age of consent and consider whether it is truly protecting children or whether it is an example of a paternalistic society governing what sexual activities a 16-or 17-year-old child can engage in and/or who their sexual partner is. After a critical exploration of the age of consent, an analysis will be made of the types of situations where the higher age is engaged and why it is not engaged in other exploitative contexts (such as employment). We will also consider whether the criminal law’s restrictions can be justified or whether they may infringe the older child’s right to a sexual identity. We then engage with philosophical understandings of the concept of sexual exploitation and consider what the crux of the issue (justifying criminalisation) should be. Ultimately, we will argue that a higher age of consent can be justified in the context of exploitative relationships, with the existence of exploitation being ascertained through a consideration of the circumstances of the relationship rather than the relationship falling under a definitive statutory list.

A useful starting point is to consider what an age of consent is and what its purpose is. It is often said that the age of consent in England and Wales is 16 but that is not strictly true. The age varies depending on the particular relationship between the parties engaging in sexual activity. Indeed it is this variance that forms the discussion of this chapter.