Old enough to choose: The age of consent does not help young people who need protection, not punishment, says Antony Grey

I WELCOME the prospect that Parliament will soon equalise the age of consent for heterosexual and homosexual behaviour. The law bears especially harshly upon young men who engage in homosexual lovemaking, since those under 21 are still frequently prosecuted for such activities, even though under-age girls commit no offence by consenting to sex with a man. Successful prosecutions for consenting homosexual behaviour that breached the 21 age limit averaged 280 over the six years to 1991, and resulting prison sentences averaged 28 a year, so there is significant hardship - and, I would maintain, injustice.

Equalising the ages of consent must be the most immediate consideration. Ultimately, though, it would be desirable to rethink the whole legal concept of an age of consent to sexual activity and consider a completely new framework. This would give effective protection to those below the age of majority (18), without punishing them for behaviour to which - however unwisely - they have consented.

In 1974 the Sexual Law Reform Society's Working Party, of which I was secretary, submitted a memorandum to the Criminal Law Revision Committee in which we endorsed the view of our then chairman, the late Bishop John Robinson, that the law's proper function in relation to personal behaviour is 'not to prohibit but to protect, not to enforce morals but to safeguard persons, their privacies and freedoms'. We argued that it would be in the public interest to abolish 'sexual offences' as a separate category - because all sexual behaviour that merited punishment could be classified as an assault, a breach of protective provisions for children or others in a state of dependence, or an offensive nuisance to third parties.

The working party - which included church people, doctors, lawyers and politicians - concluded after extensive discussion that the traditional framework of an 'age of consent' was a hindrance, not a help, to the effective protection of young people. We reasoned that it is a legal fiction: either someone is a willing partner to a sexual act, whatever their age, or they are not. If they have consented to what they were doing and understood the consequences of their consent, this could be proved in court if necessary; and for the law to treat them as being incapable of giving such consent introduces an element of unreality into the proceedings which is confusing, harmful and in no one's best interests.

We recognised, however, that as well as punishing those who interfere with or abuse young people sexually, the law may need to protect young people whose sexual behaviour is potentially damaging to themselves or to others. We recommended an 'age of protection' up to the legal age of majority (18), with appropriate civil and social, not criminal, sanctions. If the age of consent was not abolished, we urged that it should be fixed at 14 for both heterosexual and homosexual behaviour.

The CLRC responded by saying that it, too, saw the proper function of the law in sexual matters as protective rather than punitive, but opted to keep an age of consent on the grounds that it was necessary for legal certainty. It was also preoccupied by the 'psychological harm' it believes 'premature' sexual intercourse, heterosexual and homosexual, inflicts on youngsters.

I do not believe these arguments were convincing or conclusive; and I still think we must replace the whole concept of an age of consent with something more realistic, humane and useful for the 21st century.

Certainly there must first be a period of discussion to encourage public recognition of some obvious facts. First, 'ages of consent' do not provide effective protection to those who are sexually active below them; they frequently bring great misery and disruption into the lives of such young people. Second, older men and women who sexually pressurise, interfere with or abuse youngsters can be adequately deterred and punished through other, mostly existing, legal provisions.

Britain in the Nineties is still a very sex-negative society. The ceaseless media chatter (much of it prurient and intrusive) about peoples' sex lives may seem to contradict this. But many who work in the health education and counselling fields agree that there is an enormous amount of sexual unease and unwarranted guilt around sexuality, much of it resulting from social pressures that demand conformity to outdated 'norms'.

No society can do away with all standards and controls, and a total sexual free-for-all would probably produce even more unhappiness (a prime argument of those who oppose any relaxation of laws concerning sex). But good personal and ethical standards and considerate behaviour towards others are not as closely bound up with legal controls as traditional moralists would argue. As the Wolfenden Committee said in its 1957 report, such views exaggerate the effect of the law on human behaviour; the law itself, it said, probably makes little difference to the amount of (homo) sexual behaviour that actually occurs.

Personal standards of morality and behaviour are the outcome of a socialising process that begins at birth; they are the product of a lifetime's education in wise choice-making, rather than of legal finger-wagging. In a newspaper interview before she became prime minister, Margaret Thatcher wisely observed: 'Free choice is ultimately what life is about, what ethics is about . . . Do away with choice and you do away with human dignity.'

That, in a nutshell, is the case for replacing the 'age of consent' with protective provisions that pay more respect to the personal choices (including those which others think are mistaken) of adolescents in their growing-up years. By regarding and treating adolescents too much as if they were overgrown children, rather than as young adults, society makes a rod for its back which manifests itself in juvenile delinquency and teenage tearaways.

If we don't take teenagers seriously, why should they take us seriously? In a recent survey of 146 sixth-formers carried out by JL Randall, Childhood and Sexuality, the young people gave a massive thumbs-down to the notion of confiding their sexual problems to 'helping' adults: only 1.4 per cent of the sample said they would approach a social worker, 2 per cent a teacher, 3.4 per cent a doctor and O7 per cent a clergyman, although almost half felt able to talk to their parents.

There are lessons here for adults. An important one is that it is high time for us to start treating teenagers' sexual needs and experiences less dismissively and more sympathetically, and to replace the outdated and punitive legal fiction of an 'age of consent' with a benign and carefully thought-out framework of effective protection.

We British pride ourselves on our devotion to individual freedom, yet in practice we still operate our social system on a basis of 'benevolent paternalism'. This is especially true where personal choices around sex, free expression, entertainment choices, drug use and other aspects of personal life are concerned. Is it not time to enter the 21st century as a personal, as well as a political and social, democracy, and 'trust the people'?

The author was secretary of the Homosexual Law Reform Society in the Sixties, and of the Sexual Law Reform Society in the Seventies. His latest book, 'Speaking of Sex', is published by Cassell at pounds 10.99.

(Photographs omitted)