Underage Sexual Activity

Definition

Many young people will develop a healthy and developmentally appropriate interest in sexual relationships whilst they are still children and some will do this before they reach the age of consent.

Interventions should be aimed at the protection of vulnerable children and the provision of information and contraception (where appropriate) for other young people.

Children under the age of 16 are legally deemed incapable of consenting to sexual activity and therefore all incidences of sexual behaviour involving children under 16 should be considered as a potential criminal or child protection matter. Practitioners should be aware of the risk that the child may be at risk of Sexual Exploitation.

Risks

In assessing the nature of any particular behaviour, it is essential to look at the facts of the actual relationship between those involved. Power imbalances are very important and can occur through differences in size, age and development and where gender, sexuality, race and levels of sexual knowledge are used to exert such power. (Of these, age may be a key indicator, e.g. a 15 year old girl and a 25 year old man). There will also be an imbalance of power if the young person's sexual partner is in a position of trust in relation to them e.g. teacher, youth worker, carer etc. (and thereby committing an offence under the Sexual Offenses (Jersey) Law 2018 irrespective of the age of the victim). In the assessment, workers need to include the use of sex for favours e.g. exchanging sex for clothes, CD's, trainers, alcohol, drugs, cigarettes etc.

If the young person has a learning disability, mental disorder or other communication difficulty, they may not be able to communicate easily to someone that they are, or have been abused, or subjected to abusive behaviour.

Young People Under the Age of 13

Under Jersey Law a child, 12 years and under cannot legally give consent to any form of sexual activity. There is a maximum sentence of life imprisonment for rape, penetration and causing or inciting a child to engage in sex. There are no defences to these offenses. The Sexual Offenses (Jersey) Law 2018 creates specific offenses in relation to children 12 years or younger. The Police must be notified as soon as possible when a criminal offence has been committed or is suspected of having been committed against a child unless there are exceptional reasons not to do so.

In all cases where the sexually active child is under the age of 13, a referral (see Children and Young Person Safeguarding Referrals Procedure) must be made to MASH and a full assessment undertaken in consultation with partner agencies, including the Police.

When a girl under 13 is found to be pregnant, an enquiry to MASH must be made. An Assessment will be undertaken and a Strategy Discussion with the Police and other agencies will take place. At this stage a multi-agency support package should be formulated.

Young People Between 13 and 15

The age of consent to sex in Jersey is 16 for both men and women of any sexuality. The sexual offences (Jersey) law 2018 protect children and young people from sexual abuse. The law does not intend to prosecute mutually agreed teenage sexual activity between two people of similar age and development unless it involves abuse and exploitation. The age of consent of 16 acknowledges that young people under 16 are still vulnerable, even when they do not view themselves as such.

Sexually active young people in this age group will still have to have their needs assessed using this Protocol. Discussion with MASH will depend on the level of risk/need assessed by those working with the young person.

Young People Between 16 and 18

Although sexual activity in itself is no longer an offence over the age of 16, young people under the age of 18 are still offered protection under the Sexual Offences (Jersey) Law 2018.

Consideration still needs to be given to issues of sexual exploitation and abuse of power in circumstances outlined above. Young people, of course, can still be subject to offences of rape and assault and the circumstances of an incident may need to be explored with a young person. Young people aged 16 or 17 are not deemed able to give consent if the sexual activity is with an adult in a position of trust as defined by the Sexual Offenses (Jersey) Law 2018.

Indicators

In order to determine whether the relationship presents a risk to the young person, the following factors should be considered. This list is not exhaustive and other factors may be needed to be taken into account:

• Whether the young person is competent to understand and consent to the sexual activity they are involved in;
• The nature of the relationship between those involved, particularly if there are age or power imbalances;
• Whether overt aggression, coercion or bribery was involved including misuse of substances/alcohol as a disinhibitor;
• Whether the young person's own behaviour, for example through misuse of substances, including alcohol, places them in a position where they are unable to make an informed choice about the activity;
• Any attempts to secure secrecy by the sexual partner beyond what would be considered usual in a teenage relationship;
• Whether the sexual partner is known by the agency as having other concerning relationships with similar young people;
• If accompanied by an adult, does that relationship give any cause for concern?
• Whether the young person denies, minimises or accepts concerns;
• Whether methods used to secure compliance and/or secrecy by the sexual partner are consistent with behaviours considered to be ‘grooming’;
• Whether sex has been used to gain favours;
• The young person has a lot of money or other valuable things which cannot be accounted for.

It is considered good practice for workers to follow the Fraser guidelines when discussing personal or sexual matters with a young person under 16. The Fraser guidelines give guidance on providing advice and treatment to young people under 16 years of age. These hold that sexual health services can be offered without parental consent providing that:

• The young person understands the advice that is being given;
• The young person cannot be persuaded to inform or seek support from their parents, and will not allow the worker to inform the parents that contraceptive/protection, e.g. condom advice, is being given;
• The young person is likely to begin or continue to have sexual intercourse without contraception or protection by a barrier method;
• The young person's physical or mental health is likely to suffer unless they receive contraceptive advice or treatment;
• It is in the young person's best interest to receive contraceptive/safe sex advice and treatment without parental consent.

Protection and Action to be Taken

In working with young people, it must always be made clear to them that absolute confidentiality cannot be guaranteed, and that there will be some circumstances where the needs of the young person can only be safeguarded by sharing information with others.

In some cases urgent action may need to be taken to safeguard the welfare of a young person. However, in most circumstances there will need to be a process of information sharing and discussion in order to formulate an appropriate plan. There should be time for reasoned consideration to define the best way forward. Anyone concerned about the sexual activity of a young person should initially discuss this with the person in their agency responsible for child protection. There may then be a need for further consultation with Children’s Service for the relevant area. All discussions should be recorded, giving reasons for action taken and who was spoken to.

Where there are concerns that a young person may be at risk of sexual exploitation, a referral should be made to Children’s Service in accordance with the Children and Young Person Safeguarding Referrals Procedure; where the situation is an emergency, the Police should be contacted immediately.

When a referral is received by Children’s Service, consideration will be given to the need for an assessment and a Strategy Discussion/Meeting.

After the Strategy Discussion there may be one of the following responses:

• That the child is not In Need. In which case Children’s Service will take no further action other than, where appropriate, to provide information and advice or sign- posting to another agency;
• That the child is in need but there are no concerns that the child has suffered, or is likely to suffer, Significant Harm. In which case Children’s Service, in consultation with other agencies, will determine what services they should provide and whether to continue an Assessment;
• That the child is in need and that there are concerns that the child has suffered, or is likely to suffer, Significant Harm. In which case Children’s Service will initiate a Article 42 Enquiry and an Assessment.

Any girl, either under or over the age of 13, who is pregnant, must be offered specialist support and guidance by the relevant services. Such services should also be a part of the assessment of the girl’s circumstances.

Issues

Sharing information with parents and carers: - Decisions to share information with parents and carers will be taken using professional judgement, consideration of Fraser guidelines and in accordance with the Information Sharing Procedure. Decisions will be based on the child’s age, maturity and ability to appreciate what is involved in terms of the implications and risks to themselves. This should be coupled with the parents’ and carers’ ability and commitment to protect the young person. Given the responsibility that parents have for the conduct and welfare of their children, professionals should encourage the young person, at all points, to share information with their parents and carers wherever safe to do so.

Sexual Grooming: - Under the Sexual Offenses (Jersey) Law 2018, is an offense for person ‘A’ (aged 18 years or over) to intentionally meet or travel with the intention of meeting a child aged 15 or younger, in any pert of the world, if person ‘A’ has met or communicated with that child on at least one earlier occasion and person ‘A’ intends to commit a ‘relevant offense’ against that child either during or after the meeting.

The Age of Consent: - The legal age for young people to consent to have sex is still 16, whether they are straight, gay or bisexual. The aim of the law is to protect the rights and interests of young people, and make it easier to prosecute people who pressure or force others into having sex they don't want. The law provides for sexual offenses by adults against young children (aged 12 or younger). The child’s consent is irrelevant, as would be any belief by the adult that the child was older. A child under 13 does not, under any circumstances, have the legal capacity to consent to any form of sexual activity.

Further Information

Allegations against Staff or Volunteers Procedure

Harmful Sexual Behaviour

Child Sexual Exploitation

Enabling young people to access contraceptive and sexual health information and advice: Legal and Policy Framework for Social Workers, Residential Social Workers, Foster Carers and other Social Care Practitioners; (Department for Education (UK) Teenage Pregnancy Unit)

Best practice guidance for doctors and health professionals on the provision of advice and treatment to young people under 16 on contraception, sexual and reproductive health (Department of Health, UK)

Amendments to this Chapter

In June 2019, this chapter was updated to reflect the current Sexual Offenses (Jersey) Law 2018.