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Sexual Health and The Law
When age matters
When we are thinking about issues to do with sexual health that include physical and emotional issues there are two main areas where age is particularly relevant.
1. Age of consent for sexual activity
2. Age of legal capacity for medical treatment
Age of consent for sexual activity –
Men and Boys
It is an offence for a boy or a man to have sexual intercourse with a girl under 16, even if she agrees to it; and it is the boy or man that could face prosecution. If the girl is 12 years old or under, the law says that she cannot understand the consequences of having sex and the offence becomes statutory rape with a maximum sentence of life imprisonment. Until recently the law said that boys aged 13 or under were not considered capable of having sex. Now, however, any boy aged 8 or over can be prosecuted for having sex with a girl aged 12 or under. Again, it does not make any difference if the boy says the girl wanted to have sex.
If the girl is aged 13 - 15, the sentence is less (up to 2 years). The only time the man or boy might not be found guilty is if he is under 24, can also show he genuinely believed the girl was 16 or older, and he has never been charged with the same offence before.
If two young people under 16 (but the girl over 12) agree to have sex within an emotional relationship, it is not always the case that the boy would definitely be prosecuted, but it is a risk. If so, then the boy could be listed on the sex offender register alongside paedophiles. It has been suggested that offenders under 20 in cases like the one above should be excluded from the register, but this has not yet been confirmed
Women and girls
A girl must be 16 before she can legally have sex. Unlike boys, girls cannot be prosecuted for having sex under the age of 16; so, as mentioned above, it would be her male partner who would actually be breaking the law.
A woman can be prosecuted for indecent assault if she has sex with a boy under 16, but this might depend on the age difference (it is unlikely for example that a 17 year old woman would face any prosecution for consensual sex with a 15 year old boy).
If a woman has a duty of care over a boy or man, there maybe a case brought under the concept of “abuse of trust”, which is explained more in the Sex Offences section.
Other than the above, the law rarely gets involved in prosecuting women and girls for having sex.
Gay men and Lesbians
Gay men are allowed to have sex from the age of 16. The same conditions apply to male same sex couple where one is over sixteen and the other under sixteen.
Lesbians in general don’t really seem to exist in the eyes of the law, and there are no specific laws about consensual lesbian sex. If there is a duty of care involved then there might be a case brought under the concept of “absence of trust”, which is explained more in the Sex Offences section.
Free legal advice for kids
We can help you with any questions about the law. Freephone for under 18s : 0800 328 8970
The Scottish Child Law Centre is an independent charitable organisation, based in Edinburgh, which provides services to the whole of Scotland. The aim of the Centre is to promote knowledge and use of Scots law and children's rights for the benefit of children and young people in Scotland.