Should a kiss be just a crime?

Observations on sex and the under-16s

If David Blunkett gets his way, modern-day Romeos and Juliets will be threatened with five years in jail for a mere kiss or caress. For the first time in British law, all forms of consenting sexual behaviour between two people below the age of consent will be explicitly criminalised.

The current law says that everyone under 16 is incapable of consenting to sex, and that any sexual act with an under-16 is therefore "sexual assault" - even if both partners say they consented. This repressive stupidity is bad enough; but it criminalises only by default. The Sexual Offences Bill, which will shortly be debated by MPs in standing committee, creates the specific new crime of "child sex offences committed by children or young persons" under the age of 18 with partners under 16. Fifteen-year-olds who kiss and fondle each other behind the bike sheds will, under Clause 14, face a maximum sentence of five years' imprisonment. Two 12-year-old child sweethearts who do the same thing will be committing an even graver offence. According to Clause 8, the most trivial and innocent sexual contact with a person under 13 is punishable by up to 14 years in jail. "Touching" anyone under 16 will become an explicit crime if "the touching is sexual" - defined as any activity that a reasonable person considers "may" be sexual. Mutual consent, analogous ages and tender caresses within the context of a long-term, loving teenage relationship will be no defence. A small age difference between partners will be as criminal as a large one, and sexy cuddles are lumped together with penetrative sex. Any dalliance with a 15-year-old - whether kissing or intercourse, and whether the perpetrator is 18 or 48 - will risk the same top penalty of 14 years.

Parents are also at risk under Clause 15, which prohibits the "arranging or facilitating" of under-age sex. Though most parents prefer their children to delay sex, many, accepting they are sexually active, would rather they had sex in the safety and security of the home. That is no excuse, according to Blunkett. A mother who allows her 15-year-old son to have sex with his 15-year-old girlfriend in the family home could, in theory, face a jail term of 14 years. The same penalty could apply to parents, teachers or agony aunts who suggest to under-age youths that sex is fun and that it is OK to explore their sexuality.

The Home Office says consenting under-age partners are "unlikely" to be prosecuted. But legislation creates a repressive legal framework that can be exploited by morality campaigners such as Brian Souter and Victoria Gillick, as Section 28 was. A private prosecution may not succeed, but it can provoke fear and anxiety among under-16s, and inhibit guardians and youth advisers.

A justified concern about child sex abuse has given way to a moral panic about teenage sexuality. A century after Freud revealed the reality of young people's sexual desires, Blunkett, the most puritanical home secretary since David Maxwell Fyfe in the 1950s, had brought forward a bill that assumes sex is nasty and bad, that all under-age sex is abusive and damaging, and that the pre-16s have no sexual desires. Yet young people typically reach puberty between eight and 11: their hormones switch on and they develop a natural curiosity about each other's bodies and sex. This sexual exploration is a spontaneous, innocent part of growing up. Blunkett believes it should be a crime.

The National Survey of Sexual Attitudes and Lifestyles (1994) found the median age of first sexual experience (including kissing) among 16- to 24-year-olds was 14 for girls and 13 for boys, while a survey in 2000 for the Channel 4 television programme Sex from 8 to 18 found the average age of first intercourse is now 15.

Blunkett's bill says all these young people are criminals. The minister says it is impossible to draft legislation that distinguishes between consensual under-age sex involving people of comparable ages and abusive relations perpetrated by much older adults. Nonsense. The bill could be easily amended to decriminalise sex with the under-16s where both partners consent and there is no more than three years' difference in their ages, making mutually agreed sex lawful between a 13-year-old and a 14-year-old, but not between partners aged 13 and 30. Similar clauses already exist in the German, Israeli and Swiss age of consent laws. Why can't we have them here?

Peter Tatchell is a contributor to Teenage Sex: what should schools teach children? (Hodder & Stoughton, £5.99)