In England and Wales the age of sexual consent is 16 for both men and women. The age of consent is the same regardless of the gender or sexual orientation of a person. Under the age of 16, it is technically an offence for anyone to have any sexual activity. However there is guidance to suggest that if both parties involved are under 16, are of a similar age and both mutually agree then there will be no intention to prosecute them. Children aged 12 and under are considered legally incapable of giving consent to any form of sexual activity.
The above applies to all individuals but the Sexual Offences (Amendment) Act 2000, which came into force in January 2001, specifies that if a person over the age of 18 is in a “position of trust” it is an offence for them to have any sexual activity with a person under the age of 18 - this applies to the following main settings and positions;
Essentially the guidance is that if someone is in a position where they are responsible for the care, training or supervision of a young person then they are in a position of trust, even if the parties state that they are in a genuine relationship, it is still considered to be an abusive one due to the imbalance in power.
The specified categories covered by the Act have come under scrutiny for not covering all settings where an adult might work with older children and there is a risk that the majority of adults who work with 16 and 17 year olds can legally have sexual contact despite being in a position of trust. This “loophole” received attention recently following an increase in claims against football coaches with the NSPCC hotline set up for footballers who had experienced abuse receiving 900 calls within the first week.
Categories not currently covered by the Act (non-exhaustive);
This has caused much concern given how communication has developed over the years. For example, people have shared concerns that the relationship between a child and their sports coach can become much deeper than that with a teacher due to the amount of time they would spend together, particularly for an elite athlete. This also creates further risks as inappropriate behaviour no longer needs to take place in the physical presence of one another.
In 2017, former Sports Minister Tracey Crouch publicly stated that sexual relationships between sports coaches and 16 and 17 years olds in their care would be made illegal. This is something that Ms Crouch has continued to campaign and debate for ever since. A change to the Act has yet to be made but she did state there was backing from the Ministry of Justice and the Home Office, however the issue has been subject to a lengthy judicial review. A large topic of the review seems to surround whether there should be a prescribed list or if there should just be a definition of a position of trust so as to allow the CPS discretion when considering cases.
The current situation means that complaints are referred to the local authorities to deal with as they do not constitute a potential crime under the Act. A recent BBC investigation found that in the last four years a total of 1,481 cases were recorded across the councils of England and Wales. 164 cases involved sports coaches or adults working in sport engaging in sexual activity with a 16 or 17 year old in their care. This figure does not take into account instances that have not been reported or where the role of the adult was not recorded.
Whilst the sports industry has responded to the concerns and enhanced their safeguarding procedures as a result, there is still no actual crime committed should a sports coach or adult involved in sport engage in sexual activity with a 16 or 17 year old, providing the young person consents. It remains to be seen how long the judicial review will continue for and what the likely recommendations are but it is clear that further consideration needs to be given to this “loophole.”
For more information, please contact Lauranne Nolan.
Lauranne Nolan
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