The law around sexual activity and young people is one of the most misunderstood areas of the criminal law in England and Wales.
Parents worry about what could happen to their child. Teenagers often have no idea where the legal line sits, or assume that because something was consensual, it cannot be an offence. This guide sets out the legal position in plain terms, explains how prosecutors approach cases involving two young people, and covers what happens if the police do become involved.
Where the law actually draws the line
The age of consent in England and Wales is 16. That figure applies equally to everyone, regardless of gender or sexual orientation, and it does not change because both people agreed to what happened. In legal terms, a person under 16 cannot give valid consent to sexual activity, which means that where both parties are under 16, both are technically committing an offence, even in a relationship that both regard as entirely mutual.
The law treats children under 13 differently and far more seriously. Where a complainant is under 13, consent is not a factor the court considers, and the applicable offences carry significantly higher maximum sentences. This is one of the sharpest distinctions in the Sexual Offences Act 2003, and it is worth parents’ understanding.
Sexual activity means more than most people assume
A common misconception is that the law is concerned only with intercourse. It is considerably broader than that. The Sexual Offences Act 2003 covers sexual touching, causing another person to engage in sexual activity, engaging in sexual activity in the presence of a child, and causing a child to watch a sexual act. Each of these is a separate offence with its own definition.
Images add a further layer that catches a great many young people by surprise. Taking, sharing or possessing an indecent image of anyone under 18 is a criminal offence, and that remains the case even where the image is of the person who took it, even where it was shared willingly, and even where both people involved are the same age.
A 17-year-old can therefore commit an offence in relation to an image of themselves. Where police identify this kind of conduct among young people, a recording outcome is available to them, allowing the matter to be dealt with without prosecution. At the same time, the offence itself still exists in law. To obtain such an outcome without formal prosecution, it is strongly advised to seek specialist legal advice as soon as possible.
When the person accused is also a child
Where the person accused is under 18, the relevant provision is section 13 of the Sexual Offences Act 2003. Parliament recognised that a young person who commits a sexual offence is not in the same position as an adult, so section 13 creates a distinct offence with a lower maximum sentence than the equivalent adult provisions.
It applies to the same conduct, including sexual activity with a child, causing or inciting a child to engage in sexual activity, and the offences relating to sexual acts carried out in a child’s presence.
This matters because it shapes everything that follows. A case involving two teenagers is dealt with in the youth justice system, which is designed around welfare and rehabilitation rather than punishment, and which includes the youth court, youth offending teams, and a range of alternatives to prosecution.
Why do most consensual cases between similarly aged teenagers go no further?
The existence of an offence and the decision to prosecute are two very different things. Prosecutors are required to consider both whether there is sufficient evidence and whether a prosecution is in the public interest; in cases involving young people, the public-interest stage carries real weight.
The factors that shape that decision include the ages of both young people and the gap between them, the nature of the relationship, the relative maturity and understanding of each person, and above all, whether there is any sign of pressure, manipulation or exploitation.
Where two 15-year-olds in a relationship have engaged in consensual activity with no exploitative element, a prosecution is very unlikely. Where there is a significant age or power imbalance, or any suggestion of coercion, the picture changes entirely.
These are not informal considerations. In R (on the application of E) v Director of Public Prosecutions [2011] EWHC 1465, the High Court made clear that a failure to properly apply CPS policy and guidance in a case of this kind can be challenged by way of judicial review.
Prosecutors are expected to look at the full circumstances of the young person and the offence before reaching a decision, and where they do not, that decision can be scrutinised.
What about 16 and 17-year-olds?
Reaching 16 does not remove every legal protection. A 16- or 17-year-old is still a child in law, and specific offences apply when an adult holds a position of trust in relation to them, such as a teacher, care worker, sports coach, or religious leader.
Sexual activity in those circumstances is an offence regardless of consent and regardless of the age of consent having been reached. The indecent image rules also continue to apply until a person turns 18.
What happens if the police become involved
A young person may first learn of an investigation through a phone call inviting them to an interview, through an arrest, or through a referral from a school, a college, or social services. Whichever route it takes, the same protections apply.
A child in police custody or attending a voluntary interview is entitled to free legal advice and to have an appropriate adult present.
That entitlement exists at any hour of the day or night via the Duty Solicitor Scheme. However, instructing a specialist sexual offence defence lawyer is advisable, where possible.
Investigations of this kind often run alongside other processes. A school may begin its own inquiry, social services may become involved, and where the young people know each other, there may be safeguarding arrangements affecting where the child can go and who they can contact. These processes influence one another, and decisions made early in one can have consequences in the other, our team understand how all agencies involve interlink and communicate with each other, therefore we are in a prime position to ensure the young person is safeguarded.
Not every case that is investigated ends in a charge. Out of court disposals, including youth cautions and youth conditional cautions, exist precisely so that young people can be dealt with proportionately, and representations made at the right moment can shape which route a case takes.
Why early advice makes such a difference
The single most valuable thing a family can do is speak to a solicitor who works regularly with young people facing allegations of this nature, and to do so before any interview takes place.
The account a young person gives in that first interview can influence the entire course of the case, and the decisions made about charge, disposal and school involvement are often taken far earlier than families expect.
How Eventum Legal can help
Being accused of a sexual offence as a child is frightening for the young person and deeply distressing for their family.
Cases of this kind are rarely as straightforward as they first appear, and the interaction between the criminal law, CPS guidance, school procedures and safeguarding arrangements demands genuine specialist knowledge.
Our team acts for young people at every stage, from the first police interview through to the youth court and beyond and works alongside parents throughout.
If your child has been accused of a sexual offence, or you are concerned that they may be, contact our team for free and strictly confidential advice.