A young person under the age of 16 (and, in certain circumstances, 18) is regarded as a child for the purposes of Child Protection Guidance, the aim of which is to protect children and young people from harm.
The current legal framework allows professionals working with young people, including those under the age of 16, to provide information about the use of condoms to prevent unintended pregnancy and the prevention of sexually transmitted infections. Similarly, there are no legal restrictions with regard to professionals providing sexual health information, advice and support to under 16s.
There is no law in existence which prevents individuals under the age of 16 from buying condoms from pharmacies, supermarkets or vending machines. There are no legal restrictions with regard to selling or distributing condoms to under 16s.
Sexual Offences Act (2009)
The relevant piece of legislation is the Sexual Offences Act (2009) which came into force in December 2010. Under this Act:
- The Act states that a 'child' can be defined differently in different legal contexts and a distinction is made between 'older children' aged 13-15 and 'younger children' aged under 13.
- It is a criminal offence for anyone to be involved in any sexual act (sexual intercourse, sexual touching, kissing etc) with anyone under the age of 13 whether the young person agrees or not, on the basis that anyone under 13 lacks the capacity to give valid consent to any sexual act.
- It is a criminal offence for anyone who is 16 or older to have any kind of sexual contact with someone aged 13, 14 or 15. There is a defence available of proximity of age to someone over 16 who is engaging in sexual activity that falls short of intercourse or oral sex (i.e., heavy petting) if there is less then 2 years age difference between the two young people. BUT it is important to remember that this defence only applies to activity that would be legal if both young people were "older children" as defined by the Act - so not sexual intercourse or oral sex.
- It is a criminal offence for an "older child" as defined by the Act (someone who is 13-15 years old) to have consensual sex with any other older child. This applies whether they are the initiating partner or the consenting partner. The sexual activity covered by the Act is intercourse whether vaginal or anal, and oral sex. All other sexual acts between older children are legal.
- It is a criminal offence for anyone in a position of trust in relation to anyone under the age of 18 to have any sexual contact with them. A position of trust would include anyone who supervises, cares for or provides guidance to the young person. Examples of position of trust include a teacher, youth worker, minister, residential care worker, step-parent or partner of parent.
The Act includes some offences, for example, showing drawings of genitals to a young person that might seem to criminalise people who provide sexual health information. Staff working in condom distribution might worry that they could be charged with inciting or being involved "art and part" in an offence by either showing images of how to put on a condom or by providing condoms. However the Act includes specific exemptions; no criminal offence can be committed where people act solely to protect someone from sexually transmitted infection or pregnancy, to protect their physical safety or emotional wellbeing or to provide appropriate sex education.
National Guidance - Under-Age Sexual Activity: Meeting the Needs of Children and Young People and Identifying Child Protection Concerns (2010)
This guidance suggests that whilst the law makes clear that society does not encourage sexual intercourse in young people under 16, it does not necessarily follow that every case has child protection concerns and a range of issues should be considered. The guidance describes that there are circumstances where children and young people may be at risk of significant harm as a result of under-age sexual activity. The guidance suggests that agencies provide local guidance on identifying and supporting young people and ensuring their needs are met appropriately.
Based on the National Guidance the following points should be adhered to when providing condoms to under 16s:
- Where under-age sexual activity relates to under 13s, information must always be shared in accordance with local child protection procedures. If you become aware that anyone under the age of 13 has been involved in any sexual act, this must be reported to the Designated Person for Child Protection in your organisation or to the relevant local authority department.
- Prior to reporting you should explain to the young person that you intend to share information unless you feel explaining this to them would expose them to more serious risk. You should discuss the reason you need to share information, with whom information will be shared and the possible consequences (positive and negative) for the young person. You should listen to and try to deal with any concerns the young person may have. You should also ensure that they get any support they may need (refer to Child Protection Website).
- Consensual sexual activity is not unlawful when both parties are aged 16 or over but there may be particularly vulnerable young people between the ages of 16-17 who may be placing themselves at risk and require further support. Distributors should be aware of the need to refer these young people to local sexual health services.
- The law states that it is an offence for 13, 14 and 15 year olds to have sex with one another. However, assuming there is no coercion or exploitation it is unlikely that it would be in the public interest to prosecute such a case. Distributors should therefore check that relationships between young people are consensual and that there are no immediate risks to the young person with regards to their sexual health (see section Supplying Free Condoms to Under 16s).