What should reasonably count as illegal sexual activity with a minor ?

Robert Henderson

The   conviction of the Sunderland and England footballer Adam Johnson  for six years after he admitted   one charge of  grooming  a 15-year-old girl primarily through  the Internet  and one charge of sexual activity with the girl which consisted of kissing her   “in  a sexual fashion”. . He pleaded  not guilty to  two further charges of  sexual activity with the  girl and  was found guilty of one  charge by a 10-2 verdict of  the jury and innocent of the other.  The case is of general public interest because of  the severe  sentence  and the nature of the charges.

What had Johnson done to get such a heavy punishment? Raped the girl? No. Had sexual intercourse by consent whilst the girl was under age occurred?  No.   The sexual activity Johnson was convicted of was kissing and heavy petting,  including  putting his fingers inside the girl’s vagina. He was found not guilty of allowing the girl to perform fellatio on him. Johnson is appealing against sentence and   conviction

There was also an investigation of  pornography acquired by Johnson  which was described as classified as bestiality, presumably  involving women simulating  sex with an animal.. This matter did not result in any  charges.

Those are the bare facts.  Most people will probably consider Johnson’s behaviour distinctly unsavoury. However,   did it constitute what most people would regard as a crime and if it did would it be reasonable to expect the general public to understand that such behaviour was criminal?

Most  people in Britain  understand that intercourse with a girl under the age of 16 is illegal, but I would very much doubt that they imagine kissing or even penetrating a 15-year old  girl’s vagina with their fingers would be illegal. Indeed, they might  conclude that a man would have done  the latter  rather than attempt intercourse  precisely because he  thought it an act which would be legal.  Yet  section 10 of the Sexual Offences Act 2003  does make such penetration illegal,  viz:

Causing or inciting a child to engage in sexual activity

(1)A person aged 18 or over (A) commits an offence if—

(a)he intentionally causes or incites another person (B) to engage in an activity,

(b)the activity is sexual, and

(c)either—

(i)B is under 16 and A does not reasonably believe that B is 16 or over, or

(ii)B is under 13.

(2)A person guilty of an offence under this section, if the activity caused or incited involved—

(a)penetration of B’s anus or vagina,

(b)penetration of B’s mouth with a person’s penis,

(c)penetration of a person’s anus or vagina with a part of B’s body or by B with anything else, or

(d)penetration of a person’s mouth with B’s penis,

is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years.

(3)Unless subsection (2) applies, a person guilty of an offence under this section is liable—

(a)on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both;

(b)on conviction on indictment, to imprisonment for a term not exceeding 14 years.

Ignorance of the law might be a legal dictum in England but there is such a volume of criminal offences today  and the law  so often changes these days that in practice it is simply unreasonable to expect  the ordinary Briton  to know  what is illegal except in the case of  clear cut core offences such as murder, rape and robbery.

Many will say that the age difference between Johnson and the girl  (he was 27 and she 15) make them feel queasy, but had the girl been 16 Johnson would have faced no charges and could legally have had intercourse with the girl.  Indeed, if the girl’s parents consented they could have married.  Thus a matter of months  stood between Johnson and a heavy  prison sentence. His  sentence is less than the average for rape,  which is around 8 years, but is still severe  being at the upper end of the the sentencing guidelines.   He will serve at least half the sentence unless he can persuade the Parole Board to release him early on licence. The part of the sentence he does not serve in prison will be on licence.  As he is a professional footballer that will end his career at any serious level even assuming any club would employ him.

The age of consent is also  contentious.   Even Western countries vary considerably.  In Austria, Germany, Portugal and Italy it is 14, and in France, the Czech Republic, Denmark, and Greece it is 15. The position is further complicated by  exemptions  based on age, for example, if both parties are under the age of consent but  close in age,  prosecution will not normally occur if there is consent; if  one of the parties is over the age of consent and one is not  but  the age difference between the two is small, say, the boy 17, the girl 15,   prosecution may well not occur.

Another troubling  thing about the case is the fact that Johnson was effectively given the same status as someone such as  a teacher who is deemed to be in a position of trust.  This is a very odd because Johnson is just a footballer.  His football club may get him to go into schools or  do charity work involving children but that does not mean he is employed to act in loco parentis to any person under the age of 18 he meets.  In this case according to media reports all Johnson has done here is encounter an adoring fan on a casual basis.  Section 22 of the Sexual Offences Act of  2003 states:

(1)The following provisions apply for the purposes of section 21.

(2)Subject to subsection (3), a person looks after persons under 18 if he is regularly involved in caring for, training, supervising or being in sole charge of such persons.

(3)A person (A) looks after another person (B) on an individual basis if—

(a)A is regularly involved in caring for, training or supervising B, and

(b)in the course of his involvement, A regularly has unsupervised contact with B (whether face to face or by any other means).2003 section 22 states

It is difficult to see how Johnson could have been in a position of trust as defined by the act.

Johnson has not behaved well, but not behaving well is not in itself a crime let alone one deserving four years in prison.  There is no doubt that under the law as it stands  he was liable to conviction on at least one of the sexual activity charges.  Nor can the sentence he was given be judged utterly unreasonable in view of the sentencing guidelines for sexual activity  convictions.   Looked at narrowly Johnson could have no complaints at his treatment even if his designation of  being in a position of trust is more than a little questionable .

The real concern is the state of the law. It  could well capture many people who  are oblivious of its present extremely wide remit and who honestly believe that provided no sexual intercourse occurs with someone under the age of consent, particularly with someone just under the age of consent,  no crime has been committed.   It is probable that hundreds of thousands of men over the age of 16 have kissed a girl under 15  in what the  law terms “sexually” or has engaged in heavy petting.  As for grooming, we already are seeing the police taking an interest in sexting. Do we really want large numbers of young men and women being criminalised,  many of whom would  be classified as children because the UK has signed up to the definition of a child as being  anyone under the age of 18, for behaving as the young  have always behaved, namely, explored their sexuality?

There is a good case for looking again at the age of consent with a view to reducing it to 15 and anything short of sexual intercourse where there is consent should not be a crime. Those who would argue that a girl of 15 would automatically be damaged by sexual experience at that age should reflect on the facts that many girls of that age are already engaging in such experience and that prosecution will rarely be taken against them or their sexual partner if there is not a large age gap.