This note is written on the assumption that faithful, lifelong marriage is the proper context for full sexual intimacy. This is the position of Issues in Human Sexuality, the Report of the House of Bishops of the Church of England. The question at issue therefore is not what is moral or immoral but what should be regarded as a criminal offence.
However, the 1994 Report to the Council of the BMA stated: "Most researchers now believe that adult sexual orientation is usually established before the age of puberty in both boys and girls." Indeed as long ago as 1957 the Wolfenden Report said: "The main sexual pattern is laid down in the early years of life and.... usually fixed by the age of 16." Biographies of gay people bear this out time and time again. In the 1994 Commons debate on this subject Neil Kinnock said he was attracted by the argument for 18 because of the reason stated at the beginning of this section. But, as he said, "Just when I was comfortable with this, the facts began to intervene....if I and the majority of other heterosexual men knew our sexual orientation at the age of 16, why should not homosexuals be equally sure of their sexual orientation?"
So, however sincere our desire is to project teenagers in late adolescence, the facts suggest that keeping the age of consent 18 rather than 16 is going to make no difference as to whether people end up heterosexual or homosexual.
They do-- and so do girls. Unwelcome sexual overtures are illegal and should remain so. The principle of consent is fundamental. A person making sexual advances on anyone, of whatever age, that is not consented to, can be charged with a criminal offence. But there is no evidence that boys are more at risk from older men than girls. The Sigma study quoted by the report to the BMA revealed that the average age of first homosexual experience was 15.7. 60% of these first homosexual encounters were with a partner within two years of their own age and most were hoped for or actively sought. A study of homosexual people in the United States found a disturbing picture, that 37% said they had been encouraged or forced to have sex with an older or more powerful partner before they reached the age of 19. However, their average age when this first occurred was ten. This clearly highlights the need to protect young people from child sexual abuse but it is not evidence against lowering the age of consent to 16.
However, as already argued above, the law is powerless to change people's sexual orientation. Furthermore, the law as it stands at present, with the age of consent at 18, sends out a signal that 17 year old boys of homosexual orientation will become criminals if they engage in same-sex activity. If we want to help such young people understand their sexuality in a mature way and make responsible decisions about their lifestyle, is criminalising them really the best way? A number of organistations report that the law as it stands at the moment inhibits young homosexual boys from seeking the help they need both to understand their sexuality and for health education. This is the evidence given not only by the BMA, who are concerned about better health education, but by Save the Children Fund and the National Children's' Bureau. They say that the real danger is not young sexually uncertain men being preyed on by older men but young boys and men who are gay but who are afraid to seek the advice and help that they may desperately need.
Law is not morally neutral and there is no reason in principle why it should not have a bias towards marriage; and the law can have an important educative function. But fundamental to the way of life in a democratic society is respect for the liberty of other people. We accord people the liberty to say or do things, provided they are not harmful to others, even if we profoundly disagree with them. There is a balance to be kept between the law as expressive of certain values and the fundamental right of people to exercise their freedom provided that in doing so they do not actively harm others. Sir John Wolfenden not only gave his name to the famous report but was the first Chairman of the Board for Social Responsibility of the Church of England. His report recommended the abolition of the law relating to private homosexual acts between consenting adults on the ground that it was not:
Proper for the law to concern itself with what a man does in private unless it can be shown to be so contrary to the public good that the law ought to intervene in its function as the guardian of that public good.
For the reasons already given, the arguments in favour of retaining 18 as the age of consent are not convincing. There should be an equal age of consent. We may profoundly disagree with what a 17 year-old boy does but it cannot be right to accord him less liberty than a 17 year-old girl. If he needs help, as he almost certainly will if he knows himself to be of homosexual orientation, he is much more likely to seek that help if he does not have to live under threat of being branded a criminal. As Tony Blair put it in the 1994 Commons Debate:
By supporting equality, no one is advocating or urging gay sex at 16 any more than those who would maintain the age of consent for heterosexual sex advocate that girls or boys of 16 should have sex.Most other countries in Europe have long had a single age of consent, in some cases one that is much lower than in England. Some of these countries showed two ages where either a higher rate applies where the older person is in a position of authority over the younger, or sexual activity is legal at the lower age unless the younger person subsequently complains. This is so for example in Denmark, France, Italy, Malta, the Netherlands and Spain. In Spain for example the age of consent is 12/18. This distinction is the one that the Government might well consider, as part of their policy on protecting young people. But it does not alter the fundamental argument that when the sexual activity is consensual, in private and does not involve someone in a position of authority over the young person, then the age of consent should be equal for both young men and young women.It is simply a question of whether there are grounds for discrimination. At present, the law discriminates. There is no doubt about the personal misery that such discrimination brings: to young people frightened to admit their own sexuality and the fear of imprisonment.