3. Things to bear in mind when you’re using the key messages
The law regarding the age of consent in Scotland
- The age of consent in Scotland is 16. This is the case whether you’re straight, lesbian, gay, bisexual and/or transgender. If both young people are over the age of 16 and both want to have sex – it’s legal.
- It is an offence for someone aged 18 or over to engage in sexual activity with someone aged 16 or 17 if the older person is in a position of trust. This is known as the offence of sexual abuse of trust. The ‘positions of trust’ are set out here https://www.legislation.gov.uk/asp/2009/9/section/43
- In Scotland, most young people wait until they are over 16 to have sex. In 2014, 27.4% of girls and 24.4% of boys aged 15 reported ever having sex.
- If one party is under the age of 16 then the other is breaking the law. If both are aged 13, 14 or 15 and having sex then both young people are breaking the law.
- However, the National Guidance on Under Age Sexual Activity states that:
“The law continues to make clear that society does not encourage sexual intercourse in young people under 16, as it can be a cause of concern for their welfare. It does not follow that every case has child protection concerns and it is important to ensure that a proportionate response is made and that only appropriate cases are brought to the attention of social work and the police.
Even if there are no child protection concerns, the young person may still have worries or be in need of support in relation to their sexual development and relationships, which will require to be addressed either on a single agency or multiagency basis”.
- As set out in the national guidance, if there are no child protection concerns about the young people in the relationship and professionals are confident that the sexual activity is taking place/has taken place within a safe and mutually respectful relationship, then their confidentiality should be maintained.
- Each local authority area has its own under-age sexual activity protocol in place. You can speak to your local Lead Officer for Child Protection for more information.
The messages refer to any type of sexual activity
- The term ‘sex’ is often used to refer to penetrative sex only. However, these messages refer to all types of sexual activity (anything from kissing to sexual touching to oral, vaginal and anal sexual intercourse.) This may also include online aspects of relationships and sexual activity. Therefore it is worth exploring or clarifying what someone means when they talk about sex.
- The following definitions may be helpful
- Sex = oral, vaginal or anal intercourse
- Sexual activity = anything from kissing to sexual touching to oral, vaginal and anal intercourse (sex) as well as online activity.
Ensuring young people’s understanding
- When talking with young people about healthy relationships and consent, it’s important to check that what you think you have communicated is the same as they have understood. Reflect back to the young person what they are saying to check their understanding. This will also help the young person feel listened to.
Young people’s relationships
- It is important to begin conversations about healthy, mutually consenting sexual relationships early in order that young people are equipped to cope with these situations when they occur.
- Take into account the many different relationships young people may be in, such as same sex relationships, whilst being mindful of avoiding stereotypes.
Using positive language
- Support the development of a positive culture around relationships and sexual health in which young people are supported to build healthy, respectful, consensual and enjoyable relationships.
Consideration of language usage
- Seek feedback from young people in your area on the terms they use to describe sexual activity and use if appropriate. For example, understand the terms they use for sharing an intimate photo – young people are unlikely to use the term ‘sexting’.
Being mindful of victim blaming/perceptions of victim blaming
- Be clear that young people are not responsible for the behaviour of others and if they have experienced any type of sexual abuse, it is not their fault.
Preventing perpetration, not only protection from other people’s abuse
- We must acknowledge that some young people we are in contact with may have the potential to perpetrate sexual abuse/violence now or in the future.
- It’s important that we address our messages with this in mind and tackle the attitudes and values which excuse, enable or motivate sexual harassment and abuse and do not presume that our work is only to protect young people from other people’s abuse.
Recognising the impact discussing these issues may have, on both young people and professionals
- Young people may talk about their own experiences as a way to understand difficult issues. Plan for this eventuality in group discussion and ensure that additional and confidential emotional support is available, both for young people and professionals.
- Some of the young people you are working with may have experienced sexual assault or sexual harassment – and may not have disclosed. Ensure there is information available to young people on where they can access support, should they wish to.
- It’s important to have support in place in case of a disclosure. Be aware of local child protection processes and if you need more information or advice on how to support young people who have experienced or perpetrated non-consensual sexual activity contact your Lead Officer for Child Protection.
Being clear that consent must be mutual
- Consent is not a case of one person seeking and the other providing. Consent should be a mutual process which doesn’t only mean asking for and relying upon verbally obtained consent, but being aware of body language and non-verbal responses, as an ongoing process. Consent can be withdrawn at any time. Consent is required every time sexual activity takes place, even if a person has consented before.
- A person is not able to give their consent if they are incapable because of the influence of alcohol and/or drugs or because they are asleep or unconscious. Any sexual activity in these circumstances is sexual assault or rape.
Linking messages to local services and information
- Help young people access the information, advice and support they need by being aware of and signposting young people to local services and people they can talk to. You can help young people feel confident in doing so by making sure they understand that these services are provided in confidence, unless the young person is deemed to be at risk and that in such cases, child protection procedures will be implemented.
The impact of gender on consent
“If a boy sleeps with someone it’s like yeah they’ve pulled, but if a girl sleeps with someone she’s a slut.”
“If you get pressured [to have sex] you’re obviously not going to enjoy it ‘cause you’re just doing it because you’re scared. Sometimes you do it because you’re scared to lose someone as well. And you do it, not because you want to, but because you’re scared or show them like that you love them so you do it too fast. I think it’s a problem with a lot of girls”
Status of Young Women in Scotland, 2016. YWCA Scotland
Evidence from research and recorded crime is clear that the vast majority of sexual violence (defined as any sexual activity which someone does not consent to) is perpetrated by men, predominantly against women and girls, but also against men and boys. The Scottish Government, with reference to the United Nations Declaration on the Elimination of Violence Against Women, understands that sexual violence and other forms of gender-based violence are a function of gender inequality and are related to women’s and girls’ subordinate status in society.
Young women experience high levels of gender-based harassment and violence against them, even in spaces where they should feel safe.
Sexual violence can be perpetrated by people of any gender and can happen in same-sex relationships. Other forms of power imbalance can also play a role, for example adult-child power relations, racism and abuse towards disabled or transgender people.
Respondents (aged 11-21) to the Girls’ Attitudes Survey 2017 reported that in the last week:
- 39% had their bra strap pulled by boys; and
- 27% experienced their skirts being pulled up by boys at school.
And in the last year:
- 24% of respondents aged 13-21 reported seeing unwanted sexually explicit pictures or videos.
In the 2014/15 Scottish Crime and Justice Survey:
- A higher proportion of women than men had experienced at least one form of serious sexual assault since the age of 16, at 4.6% and 0.6% respectively.
- Men perpetrated the majority of serious sexual assaults: 94.0% of those who had experienced serious sexual assault since the age of 16 said the offender was male. This proportion was higher for female victims than male victims, at 98.0% and 63.6% respectively.
- Looking at those who experienced at least one type of serious sexual assault since the age of 16, 88.6% were female, and 11.4% were male.
The ways we understand issues of consent are shaped by gender roles, norms and stereotypes and so it’s important to help young people unpick these, to enable them to build healthy and equal ways of relating. You can do this by:
- Asking open questions which enable young people to identify and deconstruct the messages they receive about gender roles, and in particular as they relate to sexual behaviour. For example, young people often talk about the expectations that boys and young men feel to be sexually experienced and knowledgeable, including influences from pornography which emphasise sexual dominance and aggression by men. Young women often identify pressures and expectations to appear sexually available and submissive and to minimise or stay silent about the harassment and abusive behaviour they experience.
- Engaging with boys and men positively as potential allies in tackling sexual violence, being clear that they are not responsible for other men’s violence. However, be ready to challenge sexism and problematic attitudes towards consent. Research has indicated that taking a bystander approach improves engagement on topics such as gender-based and sexual violence, particularly with boys and men. A bystander approach engages everyone as potential allies rather than as potential victims or perpetrators of violence or abuse. This approach is based on the perspective that everyone in a peer culture plays some role in acts of harassment, abuse or violence, including people who were not present for specific incidents. It is helpful to emphasise the role everyone can play in challenging problematic attitudes towards consent and sexism and to demonstrate this through recognising and questioning such attitudes within work with young people.
- Working with young people to help them stay safe. In doing so, it is important to ensure that safety messages don’t unintentionally convey the message that girls and young women are responsible for abuse they experience on the basis of their clothing, alcohol consumption, behaviour or being in a sexual image which has been shared without their consent. This is likely to increase their sense of self-blame and reduce their likelihood of seeking help and, importantly, shift the focus away from the responsibility of those perpetrating abuse.
- Ensuring that your language and any materials you develop include lesbian, gay and bisexual people and relationships, as well as heterosexual people, transgender people, disabled people and people from different ethnicities and cultures.
- It’s also important to acknowledge that some young people identify as having a different gender other than ‘boy’ or ‘girl’; they might identify as ‘non-binary gender’ or ‘gender queer’ or a range of other gender identities. So, if you’re not using an example or scenario for which it’s relevant to specify the genders of the people involved, it might be best to use the pronoun ‘they’ rather than ‘he/she’, as this is more inclusive.
The impact of power imbalance on young people’s relationships
When people interact with one another there are many factors that can affect who has more, or less, power in that interaction. Differences in power can cause an imbalance, either in particular situations or in whole relationships.
Factors that can create power imbalances include gender, age, social class, economic and sexual identity difference, differences between disabled and non-disabled people – evidence suggests that “one in four disabled boys and one in two disabled girls experience some form of sexual abuse before their 18th birthday” – and differences arising from trans or cis (someone whose gender corresponds to their assigned sex) gender identities.
Power imbalances can be hard to pick up on and might be felt in subtle ways such as feeling snubbed or ignored. They can also be expressed in behaviour such as who is listened to more or seen as more knowledgeable. Power imbalances can also lead to more obvious differences such as who initiates sexual activity, who decides what sexual activity takes place or who achieves enjoyment from sexual activity.
Power imbalances can also be created through a difference in knowledge. For example, if someone does not know about a topic being discussed or does not know how to do something others appear to be familiar with, they have less power in that situation.
Power imbalances are not automatically bad, however they can lead to situations in which people are not comfortable stating their honest opinions or desires which is problematic for healthy relationships.
It is important to be aware of power imbalances and acknowledge that someone’s social position (i.e. their age, sexual identity, gender, disability etc.) may impact on their behaviour in any situation and therefore whether they truly gave consent.
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