Age of Consent vs Age of Criminal Responsibility

Introduction

It’s been a week where barristers have been in the news, but for all the wrong reasons. Much ink has been spread (and much vitriol on Twitter) as to the issues of ‘victim blaming’ etc. Given that we don’t know yet exactly what was said, there’s nothing that I can add (I would recommend reading Matthew Scott’s take on it which is an eminently sensible one).

Obviously, if a 13 year old has sexual relations with a 41 year old man, it’s clear that the man is to blame, and is fully to blame. The case does raise the question of whether we have a consistent attitude to children in the criminal justice system – if we say that a 15 year old lacks the capacity to consent in law, then should we be prosecuting 10 year olds?

For some discussion of this and other issues, have a look at the Twitter timeline of Ben Gunn (‘Prisoner Ben‘) – a man with a lot to say (most, but not all, of which I agree with) and who is not afraid to say it.

It seems to me that its worth looking at the rest of Europe to see how the ages of consent and criminal responsibility are managed. I’ve collated a table from all the EU countries here :

Country Age of Consent CriminalResponsibility
Austria

14

14

Belgium

16

16

Bulgaria

14

14

Croatia

15

14

Cyprus

17

14

Czech Republic

15

15

Denmark

15

15

Estonia

14

14

Finland

16

15

France

15

13

Germany

14

14

Greece

15

13

Hungary

14

12

Ireland

17

12

Italy

14

14

Latvia

16

14

Lithuania

16

14

Luxembourg

16

18

Malta

18

9

The Netherlands

16

12

Poland

15

13

Portugal

14

16

Romania

15

14

Slovakia

15

14

Slovenia

15

14

Spain

13

14

Sweden

15

15

England and Wales 16 10

Caveats (and apologies to the celts and Croats)

Apologies first of to Scotland (where the age of criminal responsibility is 12) but I’ve cut them out and will just focus on England and Wales (and, apologies to the Welsh here – will just call it England from now on).

A couple of warnings : (1) Whilst I hope that this is all accurate, and I’ve tried to check each country against two sources, I can’t guarantee (obviously) that I’ve got the foreign law right. (2) In some countries it’s a bit more complicated than one age of consent or criminal responsibility (some have differential age of consents depending on the ages of the partner and some have variable ages of responsibility for different crimes etc).

What do we see?

Firstly, we are an outlier. Leaving aside Malta (which is currently changing their laws on criminal responsibility and, in any event, have the doli incapax rule up to 14), no other country has the six year gap between the age of consent and responsibility. Next is Ireland (5 years), followed by the Netherlands (4 years – which is slightly misleading as there is a ‘three year in age’ exception which means, as I understand it, a 13 year can consent to sex with a 16 year old but not someone older, so 16 is the age that someone can consent to sexual activity with anyone).

Here’s a summary of some of the stats:

  • Average (mean) age of consent – 15 years, 2 months
  • Median age of consent – 15 years
  • Mean age of responsibility – 13 years, 9 months
  • Median age of responsibility – 14 years
  • 3 countries have a higher age of responsibility than consent
  • 9 have the same
  • 16 have a higher age of consent than responsibility
  • The average difference between age of consent and responsibility – 1 year, 4½ months

Our age of consent is higher than the average, but not by much. Our age of criminal responsibility however is far, far lower than the European average. As a consequence, the gap between the age of consent and of responsibility in England is more than four times the European average.

Conclusion

It’s nice when the data backs up your prejudices … my own view before looking at it was the our age of consent is probably a little high in our modern society, but not by much. I don’t think that it is a particular problem (as long as you have a sensible prosecuting body to deal with cases close to the line – the 16 year boy and his 15 year old girlfriend).

However, I did feel that our age of criminal responsibility is too low, and that is backed up by the data. No other country (except for Malta) prosecutes children under the age of 12, and in many places not until they’re much older.

This is not just an EU thing, for example Norway has 16 as the age of consent, the same as the UK, but 15 as the age of criminal responsibility. Albania and Iceland have the same age of consent as criminal responsibility (14 and 15 respectively). This just emphasises how far out of touch we are.

There is something wrong and inconsistent, I feel, in our attitudes to children. To say a 15 year lacks capacity to have sexual relations does not sit easily with the idea that we can lock children up for life at the age of 10.

What do we do about it? I disagree with the views of the likes of Barbara Hewson that believed that calling the victim in the Wilson case ‘predatory’ was correct. What we should do is have a sensible debate about the criminalisation of children. As a start, I would certainly like to see the age of responsibility raised to 12 and/or re-introduce the doli incapax rule (possibly with age raised).

Children are children, whether they are in the dock or the witness box, and that is a debate that we should be having.

 

EDIT – rather embarrassingly I had forgotten to put Croatia in the list. Thanks to Michael for pointing that out.

11 thoughts on “Age of Consent vs Age of Criminal Responsibility

  1. Good job again Mr. Harper! I would like to see the US statistics…..we have children as young as 8 years old on the sex offender registry here. I know of children as young as 5 years old investigated for “touching” another child in a day care setting. This hysteria of sex offenders HAS to stop!

  2. You can be forgiven perhaps for omitting Croatia from your survey of EU countries, as the country has only just joined, but I point it out in the interests of accuracy.

    A fascinating analysis, and one that certainly gives food for thought.

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  4. The interesting issue about criminal responsibility is, below that age, who is responsible/accountable for the actions of the under-age child ?

    If the parent/guardian was made fully responsible for any actions of their under-age child, then it may matter less at what level the age was set – at least someone would then always be accountable in law for everything.

    • I disagree. Making anyone responsible for another’s actions is irresponsible. I credit our society to fault. Why? Because in earlier days, children were afraid of responsible figures in their lives. Children who misbehaved knew that dad would “be home soon”. Children knew to fear the leather of a belt! Now days, society and laws have taken that right from parents. Therefore, holding parents accountable is not right nor the answer until the authority is bestowed back to them.

  5. Pingback: Age of consent (not) going to be lowered? | UK Criminal Law Blog

  6. Hello,
    are you able to tell me where it is you found the information on the age of criminal responsibility/
    I am a Law studnet who is doing this topic but obviously I need an official site to refernce.
    Thank You

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