Improving the statutory regulation of consensual sexual behaviour between adolescents in Scotland

Callander, Isla M.F. (2017) Improving the statutory regulation of consensual sexual behaviour between adolescents in Scotland. PhD thesis, University of Glasgow.

Abstract

This thesis examines the extent to which the criminal law is a suitable tool for the regulation of the sexual behaviour of ‘older children’ and identifies the most appropriate approach for that involvement to take. The research takes place in the context of the current approach in Scotland, whereby all consensual sexual intercourse and oro-genital sexual activity between two ‘older children’, defined as those aged 13 to 15, is criminalised under section 37 of the Sexual Offences (Scotland) Act 2009. The nature of this legislation is described in detail in Part One of the thesis, and then contextualised against the relatively widespread occurrence of these activities amongst older children and the very limited number of prosecutions under the provision in practice. The question of whether, on balance, the current approach is appropriate is addressed over Parts Two and Three of the thesis. In making this assessment, the thesis integrates relevant public health research and aspects of research into adolescent psychology and neurological development, with the principles that should normatively inform criminalisation decisions and doctrinal legal discussions. Overall, it is argued that, while there are good public policy reasons to encourage older children to delay engaging in sexual intercourse and oro-genital sexual activity, the current blanket approach taken by the criminal law in Scotland is overly broad. Part Four of the thesis makes an extensive comparative analysis of the legal approaches taken to consensual adolescent sexual intercourse in other common law jurisdictions, to identify possible approaches that Scotland might follow in preference to the current law. These approaches are drawn upon to advocate a more refined approach in the substantive law in Scotland that criminalises consensual sexual intercourse and oro-genital sexual activity involving older children only where there is a substantial age difference between the participants or where there is otherwise evidence of exploitation. The thesis argues that the refined approach would safeguard adolescents against exploitation without automatically criminalising significant numbers of adolescents for their consensual sexual behaviour.

• Item Type: Thesis (PhD)
• Qualification Level: Doctoral
• Keywords: Criminal law, Scots criminal law, criminal justice, sexual offences laws, sexual offences legislation, legal regulation of adolescent sexual behaviour, sexual offences committed by children, Sexual Offences (Scotland) Act 2009.
• Subjects: K Law > K Law (General); K Law > KD England and Wales; K Law > KD England and Wales > KDC Scotland
• Colleges/Schools: College of Social Sciences > School of Law
• Supervisor's Name: Chalmers, Professor James and Leverick, Professor Fiona
• Date of Award: 2017
• Embargo Date: 6 December 2021
• Depositing User: Miss Isla Callander
• Unique ID: glathesis:2017-8244
• Copyright: Copyright of this thesis is held by the author.
• Date Deposited: 07 Jun 2017 08:13
• Last Modified: 07 Dec 2020 08:28
• URI: https://theses.gla.ac.uk/id/eprint/8244