Sex and the Law

In Scotland, only people over the age of 16 are able to consent to sex. The laws on sex and sexual behaviour are designed to keep everyone safe – especially young people. Consent is a term used in Scots Law to describe both or all people involved in sexual activity giving their free agreement to willingly participate in sex.

If a person has sex however with someone, under the age of 18, over whom they have a position of trust e.g. teacher, youth worker, carer or family member, then this is an offence and could be punished with a prison sentence. This includes any oral sex or sexual touching, as well as full penetrative sex.

The Sexual Offences (Scotland) Act 2009 was implemented 1st December 2010 and replaced a mixture of common law and statutory provision by putting Scots Law on sexual offences into a single Act. The Act broadens the definition of rape to include anal and oral rape of women and men, as well as vaginal rape. Rape is defined as penetration of someone’s vagina, anus or mouth (to however small an extent) by a penis without consent or reasonable belief in consent.

The Act defines consent as a free agreement and makes it clear that consent can be withdrawn at any time. The Act also sets out an offence of sexual assault by penetration, which covers, for example, penetration by objects, and which is equivalent in seriousness to rape.

The Act also creates specific offences in relation to the rape and sexual assault of children and makes it clear that anyone under the age of 13 is considered unable to consent to sexual activity, according to the legislation.

If a young person is under the age of 13

In the eyes of the law they are not seen as old enough to consent to sex, so any sexual activity with someone under 13 is illegal and viewed as rape or sexual assault. Young people may be in a relationship and thinking about taking things further at this age so it is important to speak to them about sex, relationships, safety and the law.

If a young person is aged 13-15

Any sexual activity with someone in this age group is against the law, but the law is there to protect young people who might be being abused or taken advantage of by someone older, it isn’t designed to punish people of the same age who both agree to sex (consensual sex).

Young people will not get into trouble by talking to a doctor, nurse or someone else in a sexual health clinic if they are having sex, thinking about having sex or accessing contraception before the age of 16 and this can be prescribed without parents/carers knowledge.

Information will only be passed on and shared if staff believe the young person or someone else is in danger. It’s highly unlikely young people will get into trouble with the law as long as there is not a large age difference between them and they both agree (consent) to sex. Talk to your young person about how they feel, relationships and contraception are really important.