British Medical Association
1994
A debate on the age of consent for homosexual men is likely to take place in the current parliamentary session as part of the Criminal Justice Bill. Although the age of consent for homosexual men will not form part of the tabled bill, those in favour of a change in the current law will be submitting an amendment to the bill in order that the issue may be debated. It has been reported in the press that the Prime Minister would wish to see a free vote on the issue. Campaigns have been initiated in anticipation of this debate by both those in favour of a change in the law and those against.
In June 1976, the BMA commented on the law relating to, and penalties for, sexual offences to the Criminal Law Review Committee:
We acknowledge that a lowering to 18 of the age of consent for men to homosexual acts in private would be reasonable. This would correspond to the legal age of majority. The age of consent to sexual acts would still vary two years as between men and women, but the age of 18 for men would reflect, in general, their slower rate of biological development.
The Royal College of Psychiatrists in submitting evidence to the Committee supported an equal age of consent of 16, stating
On the whole we agree that it is now appropriate to make no distinction in the age of consent between heterosexual and homosexual practices.
The BMA statement to the Criminal Law Review Committee was reiterated by the BMA in 1981 in comments, approved by Council, to the Home Office Criminal Law Revision Committee working paper on sexual offences. The final report of the Home Office Criminal Law Revision Committee and the BMA's 1981 response were tabled at the Board of Science and Education in June 1984. At this time the BMA's opinion was given wide coverage within the media.
The Association has considered age of consent laws more generally at the Annual Representatives Meeting. A resolution was passed in 1986:
That this Meeting believes that the age of consent in Northern Ireland should be 16 years of age, instead of 17, as it now is.
It is likely that this resolution only referred to the age of consent for heterosexuals. The law is as yet unchanged in Northern Ireland.
Due to the renewed interest in the issue of the age of consent for homosexual men, and the Association's previous statements, the BMA has been asked once more for its views. In a recent television programme that took an in depth look at age of consent legislation the BMA was asked to put forward a 'medical' viewpoint. The BMA outlined its concern regarding the increase in HIV transmissions in young homosexual men.
The BMA is regarded as the voice of the medical profession by other professional bodies, government, the press and the public. The BMA represents far more than a trade union and has a high profile in public health matters. The views of the medical profession and the BMA are respected on issues wider than health and the public health messages of the BMA are viewed as representing the consensus of medical opinion. The BMA should reconsider its position on the age of consent for homosexual men in the light of current evidence, particularly in relation to the risks of HIV infection as this matter would not have formed part of the debate in the early 1980s.
Currently, all male homosexual behaviour is illegal unless both participants are over the age of 21. The position regarding the age of consent for male homosexuals differs from that for heterosexuals in two important respects.
If a man aged over 16 has sex with a girl under 16, the man commits an offence, but the girl does not -- she is perceived as the "victim" of the crime. However, if a man aged 16-20 has sex with an older man, both are guilty of an offence. This is inconsistent with the idea that the purpose of age of consent legislation is to protect vulnerable young people from exploitation or abuse.
The law prohibits all forms of genital sexual behaviour involving men aged under 21, including "safer sex" such as mutual masturbation. Strictly speaking the same applies to heterosexuals and female homosexuals under 16, for whom any form of genital sexual contact legally constitutes an indecent assault, but in practice non-abusive, non-penetrative heterosexual behaviour between adolescents under 16 is socially accepted and highly unlikely to lead to prosecution.
The current law was established by the Sexual Offences Act 1967, which was based on the proposals of the Wolfenden Report in 1957. The age of consent was set at 21 due to this being the 'legal age of contractual responsibility' at the time. However, in 1968 the legal age of contractual responsibility was lowered to its current level of 18.
There is no specific legislation regarding the age of consent for homosexual women and in the absence of such legislation the age of consent for heterosexuals, ie 16, has been legally interpreted as applying to homosexual women.
The Board of Science and Education has taken a number of initiatives in the realm of health education, particularly in relation to HIV and AIDS. Of greatest relevance to this issue is the Board's publication AIDS & You. The second edition of this publication, produced in June 1991, has been widely distributed to medical students, health educators and schools. The AIDS & You game based on this booklet has also been widely distributed.
Despite the law on the age of consent for homosexual men, evidence shows that many young men under the age of 21 are homosexually active. The Sigma project, a major longitudinal study of British homosexual and bisexual men, included 111 men who were aged under 21 when first interviewed in 1987-8[1]. The study sample were self classified as homosexual or bisexual and a sexual relationship was classified as any relationship where the aim was orgasm for one or both individuals involved. Of the 111 men aged under 21 when first interviewed, only 3 had not yet had sexual relations with a man. More than 50% had had their first homosexual experience by age 16, and over 90% by age 18. Of the full Sigma study cohort[2] of men aged 15-81 (median 29), the mean age of first homosexual experience was 15.7. About 60% were homosexually active by age 16, and virtually 80% by age 18. The prevalence of sexual activity in young men gives rise to concern that they may have sexual relations which put them at high risk of HIV infection and other adverse health consequences.
It is not possible to obtain age-specific incidence rates for homosexually transmitted STDs or HIV, because of lack of data concerning the population base of homosexual and bisexual men to be used as a denominator. However, up to the end of December 1992, 296 cases of AIDS and 2927 cases of HIV infection were reported in men aged 15-24 at the time of diagnosis/testing, representing 5% and 18% of all male cases respectively. A further 2414 men aged 25-34 were reported with AIDS (37% of all male cases); in view of the long incubation period, many of these may have been infected when aged under 21. The ratio of male to female cases in those aged 15-24 was 4.11 for AIDS and 3.68 for HIV, suggesting a high proportion of homosexually transmitted cases. This illustrates the level of risk of HIV infection among young homosexual or bisexual men. This risk was confirmed by a recent study that examined evidence of changing sexual behaviour and continuing transmission of HIV among men who have sex with men[3]. The study concluded that unsafe sexual behaviour and HIV transmissions have increased among homosexual men after a period of decline. It is of particular concern that the researchers concluded that recent HIV transmissions may disproportionately affect younger men. The authors recommended that health promotion for all men who have sexual relations with men was important, and that safe sex information aimed at young homosexual men and homosexual men in London needed special emphasis.
There is concern that young homosexual men are especially at risk of sexually transmitted infections including gonorrhoea and HIV. This may be because they are less able to access sources of information and advice about safer sexual practice. This may be because:
The BMA's previous consideration of the age of consent for homosexual men referred to the need for a differential in the age of consent for heterosexuals and homosexuals to reflect the slower rate of biological development in males. Although complete sexual maturity is reached about the same average age in both sexes[4], research on children's development carried out by Tanner[5] reveals that the growth spurt in girls occurs two years earlier than that in boys. However, growth spurt is only one of many measures of development. In girls adolescent growth spurt, in the sequence of events that occur at puberty, is placed earlier than in boys. Growth spurt may be the first event of puberty in girls but in boys the first indicator of puberty is likely to be enlargement of the genitals. There is little solid information on the relationship between emotional and physiological development and it is primarily commonsense that dictates the notion that emotional attitudes are related to physiological events[5].
Homosexuality in itself is not regarded as a pathological condition by recognised medical authorities, eg the International Classification of Diseases[6]. Where homosexuality is discussed in modern psychiatric literature, it is regarded as a variant of human sexuality which doctors need to understand, and which may have psychiatric consequences in so far as people may experience suffering, guilt and depression about their homosexual feelings. The UCH Textbook of Psychiatry (1990) states that in many cases
the aim of treatment will be to help the person to come to terms with his homosexual orientation and to help him overcome his feelings of guilt. If this is achieved he may be able to establish more stable and satisfying relationships.
Despite evidence that homosexuality is associated with an increased risk of depression and suicide, it is likely that the vast majority of homosexual men probably succeed in adjusting to their sexual orientation without requiring any form of medical or psychological support.
Clinical reports of "pathological" homosexuality, characterised by violent or compulsive sexual behaviour associated with aggression and absence of affection, should not be regarded as typical. Such cases presumably exist, as do cases of disturbed, abusive or compulsive heterosexual behaviour. They are over-represented in the medical and criminological literature, simply because their behaviour creates problems which bring them to professional attention. Normal well-adjusted homosexuals, in contrast, remain largely invisible to doctors and psychiatrists except in the context of sexually transmitted infections.
The "causes" of homosexuality remain poorly understood and are almost certainly multifactorial. Neuroanatomic variation between homosexual and heterosexual men and genetic linkage studies have been reported within the last few years[7],[8]. Psychological influences during childhood have also been implicated, in particular the nature of the mother-child relationship. A common feature of these factors is that they operate at a much earlier age than 16.
While some individuals are more or less exclusively homosexual or heterosexual, there is a continuum in between of those who experience a degree of sexual attraction towards partners of both sexes. Little is known about the establishment of bisexual orientations, but it is likely that some people in this group do not recognise that they are not fully heterosexual (or homosexual) until adult life. The fact that a person may not fully recognise his/her own sexual orientation until adulthood does not mean that this is not established earlier in life.
The Sigma project[2] provides an insight into the views of the study cohort on the establishment of their sexual orientation. 74% of the full study cohort reported that they had suspected they were "sexually different" and 67% had labelled themselves as "homosexual or gay" before they first had sex with another man. This indicates that homosexual orientation leads to homosexual behaviour and not vice versa. Half of the cohort suspected they were sexually different by age 12, and over 80% by age 16.
The purpose of age of consent legislation is to protect vulnerable young people from sexual exploitation and abuse. The current legislation presupposes that young men require greater protection from unwanted sexual advances than do young women. The Royal College of Psychiatrists stated in their response to the 1976 Criminal Law Review Committee:
Boys, it is held, are no more in need of protection from homosexuals than girls from heterosexuals. It might be argued that boys are much less at risk than girls in that pregnancy and the consequent trauma of parental displeasure, forced marriage, perhaps illegal or legal abortion, the misery of early separation for adoption, or the long drawn out stress of unsupported parenthood with all its dangers for the next generation are not involved.
The Sigma study revealed that of the full study cohort[2] of men aged 15-81 (median 29), the mean age of first homosexual experience was 15.7. 60% of these first homosexual encounters were with a partner within two years of their owns age, and most were hoped for or actively sought. Thus the picture from the Sigma study is not one of vulnerable boys needing protection from older men.
A minority of homosexual men do report that their first homosexual encounter was with a substantially older partner and was less than fully consensual. A study of adult homosexual and bisexual male STD clinic patients in the US found that 37% said they had been encouraged or forced to have sex with an older or more powerful partner before they reached the age of 19. (For comparison, only 1% of the Sigma cohort said that their first homosexual experience was non-consensual.) However, their median age when this first occurred was 10 years[9]. The question of whether the age of consent should be 16 or 21 is clearly distinct from the protection of such very young boys from child sexual abuse. Regardless of the age of consent unwanted sexual attention and enforced sexual activity constitutes an offence whatever the ages, sex or sexual orientation of the perpetrator or victim.
The following table provides details of the laws on the age of consent for heterosexuals and for homosexual men.
AGE OF CONSENT |
||
|---|---|---|
| COUNTRY | Heterosexuals |
Homosexual Men |
| Austria | 14 |
18 |
| Belgium | 16 |
16 |
| Bulgaria | 14 |
14 |
| Cyprus | 16 |
Illegal {1} |
| Czech Republic | 15 |
15 |
| Denmark | 15/18 |
15/18 |
| Finland | 16 |
18 |
| France | 15/18 |
15/18 |
| Germany | 14 |
18 {2} |
| Greece | 15 |
15 |
| Hungary | 14 |
18 |
| Iceland | 14 |
14 |
| Ireland | 17 |
17 |
| Italy | 14/16 |
14/16 |
| Liechtenstein | 14 |
18 |
| Luxembourg | 16 |
16 |
| Malta | 12/18 |
12/18 |
| Netherlands | 12/16 |
12/16 |
| Northern Ireland | 17 |
21 {3} |
| Norway | 16 |
16 |
| Poland | 15 |
15 |
| Portugal | 16 |
16 |
| San Marino | 14/16 |
14/16 |
| Slovak Republic | 15 |
15 |
| Spain | 12/18 |
12/18 |
| Sweden | 15 |
15 |
| Switzerland | 16 |
16 |
| Turkey | 18 |
18 |
| United Kingdom | 16 |
21 |
NB: Where two ages are shown this is either because a higher age applies where the older person is in a position of authority or influence over the younger, or because sexual activity is legal at the lower age unless the younger person subsequently complains. Bold is used to indicate countries where the age of consent for homosexual men differs from that for heterosexuals.
Most other European countries have therefore established an age of consent for sexual activity regardless of sexual orientation. Legislation in Ireland to establish an equal age of consent was introduced this year. Introducing the Bill, the Irish Minister for Justice explained why reform was now necessary:
What we are concerned with in this Bill is a necessary development of human rights. We are seeking to end that form of discrimination which says that those whose nature it is to express themselves sexually in their personal relationships, as consenting adults, in a way which others disapprove of or feel uneasy about must suffer the sanctions of the criminal law. What we are saying in 1993, over 130 years since that section of the criminal law was enacted, is that it is time we brought this form of human rights limitation to an end.
Within Europe the UK stands out as having the highest age of consent for homosexual men and is in a minority of countries where the law discriminates between heterosexuals and homosexual men.
Of prime concern to the Board of Science and Education and to the medical profession as a whole, are the concerns that the present law may inhibit efforts to improve the sexual health of young homosexual and bisexual men. The average age of first homosexual encounter has been found to be 15.7, and it is vital that these young homosexual men receive effective health education and health care.
Previously the BMA proposed that the age of consent for homosexual men should be set at 18 to reflect their slower rate of biological development. However, most researchers now believe that adult sexual orientation is usually established before the age of puberty in both boys and girls.
The purpose of age of consent legislation is to protect vulnerable young people from sexual exploitation and abuse, but there is no clear justification for a differential age for homosexual male activity and other sexual activity. Although homosexual experimentation may be quite common among adolescent boys (despite the present law), extensive recent research does not indicate that men aged 16-21 are in need of special protection because they may be "recruited" into homosexuality. Unwelcome sexual attentions of a seriousness warranting criminal prosecution are equally offensive whether the victim is a man or a woman: the same law should therefore apply to all.
Evidence would suggest that reducing the age of consent to 16 would be unlikely to affect the number of men engaging in homosexual activity, either in general or within specific age groups. Commencement of sexual activity well below the age of 21 has been established by the Sigma project that investigated the sexual lifestyles of homosexual and bisexual men in England and Wales[2].
There is no convincing medical reason against reducing the age of consent for male homosexuals to 16 years, and to do so may yield some positive health benefits.
The Board of Science and Education considers the question of the age of consent for homosexual men a public health issue and has focused upon the issues of risk reduction and effective health education and recommends:
That the age of consent for homosexual men should be set at 16 because the present law may inhibit efforts to improve the sexual health of young homosexual and bisexual men.
THE RECOMMENDATION WAS ADOPTED BY THE COUNCIL, 12 JANUARY 1994
British Medical Association Web Site
House of Commons Age of Consent Vote 1998
Updated 1998-06-28
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