Can a 16-year-old really consent to sleeping with someone in their 30s?

Publish date: 2024-09-06

This article references grooming and sexual assault.

What is sexual consent? Many will tell you it's a black-and-white issue, determined through a clear-cut “yes” or “no”. But as high-profile allegations of sexual assault continue to sweep across the front pages, the so-called ‘grey areas’ of consent have come firmly into focus.

The age of sexual consent in the UK has been a hot topic in recent days following allegations that actor and comedian Russell Brand, then 31, groomed and sexually assaulted a 16-year-old girl during a three-month relationship in 2006. The allegations – which come from four women between the period from 2006 to 2013 – were made during a joint investigation by the Sunday Times, the Times and Channel 4's Dispatches. Brand denies all the allegations and said his relationships were “all consensual.”

In the UK, the age of consent is 16, which means it's legal for adults of any age to have consensual sex with a 16-year-old – provided they are not in a position of trust, such as their teacher.

While it's legal for over-16s to have consensual sex, it's illegal for anyone (regardless of age) to own or share sexually explicit images of anyone under the age of 18. This legality came to the forefront of public discourse in July when BBC presenter Huw Edwards was accused of paying a teenager for explicit photos. [The Met Police have confirmed that Edwards, 61, won't face further investigation. He is currently receiving medical care for his mental health and, per his wife, Vicky Flind, will release a personal statement when he is well enough to do so.]

This case also prompted questions about the laws surrounding consent in the UK: why is it legal for 16-year-olds to have sex but not to share sexually explicit images?

Here, we unpack the legal definition of sexual consent, how it differs between the ages of 16 and 18, the discriminatory history of these laws, and whether it's time to reform the age of consent.

What is the legal definition of consent?

Consent is when all people involved in any kind of sexual activity agree to take part by choice. They also need to have the freedom and capacity to make that choice.

Per Rape Crisis, a person doesn't have the freedom and capacity to consent if:

They are asleep or unconscious.
They are drunk or ‘on’ drugs.
They have been ‘spiked’.
They are too young (under 16).
They have a mental health disorder or illness that means they are unable to make a choice.
They are being pressured, bullied, manipulated, tricked or scared into saying 'yes’.
The other person is using physical force against them.

Consent can be withdrawn at any time before or during sexual activity. Consenting to sexual activity on one occasion doesn't mean you consent to it on another, regardless of your relationship status. However, in rape culture – where victims are routinely blamed for the sexual violence enacted against them – many people believe that if a person has consented to a certain level of activity with another, whether it's going on a date, kissing, or engaging in foreplay, they have automatically consented to sex. This makes it harder for victims to be taken seriously and believed.

What is the legal age of consent in the UK?

In the UK, the legal age of consent for sexual activity – including penetrative sex, oral sex and mutual masturbation – is 16 years old. This is the same for all sexualities. However, it's illegal for over-18s in positions of trust (such as teachers) to engage in any sexual activity with someone in their care (such as their students) – even if they are 16 or over.

It's illegal for under-16s to have sex with one another – even if they are ‘consenting’ – but the law is mainly used to protect under-16s from sexual abuse at the hands of adults.

What can you legally consent to at age 16?

At 16, you can legally have consensual sex with another person (of any gender) if your partner is also over 16. However, it is illegal to take an explicit picture yourself and send it to anyone at this age. It doesn't matter if you send it to someone under 18, or if you ‘consent’ to the image being shared, or if you only share it with a partner. It's still considered child pornography.

What's the rationale for this distinction? Sophie Campbell-Adams, a solicitor at Britton and Time solicitors, tells GLAMOUR that it's about “protecting minors from harm and exploitation.” The non-consensual distribution of explicit images is associated with “coercion, extortion, and exploitation”, which are existing criminal offences. While 16-year-olds are legally deemed to have the capacity to make informed decisions about sexual relationships (thanks, in part due to sex education), they may not “fully comprehend the dangers associated with explicit images.”

Campbell-Adams continues, “There are many examples of individuals sending photos to their partner whilst in a relationship and these being leaked to social media or sent to family and friends.

“The classification of explicit pictures involving individuals under the age of 18 as child pornography is designed to protect those who are not legally able to provide consent or understand the ramifications of these images being shared. It is for this reason that there are still strict restrictions in place with regard to explicit images.”

Should the age of consent be raised?

Did you know that the age of consent in the UK used to be just 12 years old? The age of consent is often considered a fraught legal issue. While some have voiced concern over teenagers potentially being criminalised for having consensual sex with each other, others worry that a low age of consent fails to protect teenagers from abusive relationships with much older adults.

In 1885, the Criminal Law Amendment Act was passed into UK law, raising the age of sexual consent to 16. Since then, there have been efforts to raise – and lower – the age of consent. In 1917, Parliament narrowly rejected a Bill to raise the age of consent to 17. Fast forward 60 years, the Paedophile Information Exchange – yes, you read that right – lobbied for the age of consent to be abolished altogether.

In the wake of the allegations against Brand, people have taken to social media to share their opinions on how and why consent laws should change. While some have suggested that the age of consent should be raised to 18, others have proposed a “sliding scale” model, which would set a maximum age gap between teenagers engaged in sexual relationships.

Is the age of consent equal for all sexualities?

In the UK, the age of consent is the same no matter what your sexuality. But it hasn't always been this way. Homosexuality was illegal in England and Wales before the Sexual Offences Act 1967 partially decriminalised it – gay and bisexual men could have sex, but only if they were over the age of 21.

As Campbell-Adams tells GLAMOUR, “Attitudes towards homosexuality shifted, and there was a greater understanding of sexual orientation, which led to a change in legislation.”

The next change in legislation came in the form of the Criminal Justice and Public Order Act 1994, which reduced the homosexual age of consent to 18, and then again in 2001 when the age of consent for homosexual and heterosexual activity was equalised by the Sexual Offences (Amendment) Act 2000.

For more from Glamour UK's Lucy Morgan, follow her on Instagram @lucyalexxandra.