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Law, logic, morality and common sense are very uneasy bedfellows. If you ever needed a case needed to exemplify this truism then look no further than the CPS’ sterling efforts a few weeks ago. There a 17 year old was prosecuted for the ‘rape’ of a 15 year old, even though she had fully consented to sexual intercourse as a matter of fact. Let me explain. The law on consent for sexual intercourse is logical and relatively clear. At least that is what I tell my students! 13 year olds and under can never consent. 14 and 15 year olds cannot consent as a matter of law, but if they consent as a matter of fact this may be seen by the court as a mitigating factor for the purposes of sentencing. Only those aged 16 and over can consent both in law and as a matter of fact, but the defendant has to hold a reasonable belief that they were so consenting. Yes! All of this is both justiciable and logical. Big age gaps might render sexual relations between consenting adults immoral or even contrary to good sense but not illegal. However what about consenting sex between children under 16? That’s illegal. One or both children may end up in court facing serious charges. What about where one is say 15 and the other say 17? Curiously this depends on the nature of the sexual activity and the gender of the defendant. A 17 year old male who has sexual intercourse with a 15 year old (male or female) is committing a serious offence. The converse may not be true for the 15 year old, whether male or female. If you use the rules that I have set out above to go through the various permutations you will see that the law in this area has almost nothing to do with logic, little to do with morality and absolutely nothing to do with common sense. Luckily for the boy in question, the Judge in question remembered that she used to be a teenager. The sentence of the court was a conditional discharge and a stern lecture on the facts of life for the CPS!


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