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Kissing is a Crime?

Special Reports

y Graham Rogers, Consultant Psychologist M.Sc., (Ed Psych) M.Sc., (REBT) B.Sc. (Hons)., PGCE., Dip. REBT., C. Psychol., AFBPsS


As a qualified psychologist of nearly 25 years standing and having worked with younger people for somewhere in excess of 30 years, I have been fascinated by
the way adolescents have been viewed by authority.

In many respects current thinking about adolescents and young adults dates back to the 1960’s, mods and rockers and the sexual revolution. In the late 70’s and
through to the 80’s, punk was the obvious revolutionary force actively challenging authority. In the 1990’s and into the early 2000’s there was at times an open fear from authority regarding the threats that teenagers and young adults posed to the way in which society functioned.

However, this political imposition of fear was the way in which to justify change. Iraq and weapons of mass destruction is a good example, weapons which we now know, never existed. For younger people, anti-social behaviour orders were introduced in 1998 and given for a range of social issues, such as ‘playing football in the street,’ ‘rudeness’ and ‘fare evasion’.

Laws were ‘simplified’ and brought up to date and the one that I encounter time and time again with young people is the Sexual Offences Act 2003. This brought together older acts of parliament and their amendments, while simultaneously adding and ‘clarifying’ offences.

Unfortunately in my opinion, where young people are concerned it appears to have made a bad situation far worse.

Adolescents live in their own world and although they like to be individual, in reality, they tend to be individuals within a group where that group has a very specific identity.

To remain part of the group requires individuals to adhere to the shared identity; their behaviour, their dress and their stated ideals. Participating with that identity enables them to feel part of this whole, while different and distinctive from others, including the culture of adult society itself. This is normal.

However, in many respects it is a microcosm of adult life, a sub-culture that in time will alter the future of mainstream culture itself. Indeed, this was seen in
Ireland recently, where it was their youth that brought about fundamental change in the way their society viewed gay and lesbian marriage. Only one district out of the 43 voting did not approve the change, an overwhelming result, where the youth of the country were seen as pivotal in this outcome.

Young people view the world differently from the establishment and this is seen no more clearly than in regard to technology. Any parent with a 2 year old and an iPad will probably understand this concept as the child who struggles to string a sentence together, flies around the touch screen technology with ease.

Whereas technology and its development into social media have changed our culture and the way in which we communicate, it is adolescents and young adults that have adopted it at a pace. Unfortunately, our ability to manage this change is proving to be more of a challenge.

If one considers Flickr for example, a photo-sharing website with millions of family photographs shared and viewed by those from around the world; socially
acceptable and proudly placed by families, they allow others to share in the pleasure and joy of the children growing and the adventures that have been undertaken.

However, in a recent case, a client suffering from obsessive characteristics had collected what he estimated to be close to a million images of children from this very same website; he claimed it was the only website he used.

However, these same family images were, according to the advice I received, classified as ‘category C’ by the CPS under the 2003 Act and the new definitive
guidelines (1st April 2014) and he was duly prosecuted. To be clear, normal family photographs of children, shared on Flickr were, according to the CPS and the new guidelines, examples of child pornography. Social media is a new phenomenon and one where we are learning as we go along. Unfortunately the law and its application are not designed for this change.

CEOPs recently suggested that they were working on a case a day of children taking sexual selfies. These images were then sent to “another” and as a  consequence the police were investigating.

In my experience, a case a day is probably a minute fraction of what is actually occurring and appears to demonstrate the authorities total lack of understanding
of adolescent culture.

A few years ago, one of my own children came home from school and announced that a girl in the year group below hers had taken a photograph of herself and sent it to her boyfriend, who promptly sent it to his friends and according to the report I received, everyone in the school had seen it by lunchtime. The central issue with the image wasn’t that she had taken it or even related to what she had taken a picture of, rather, the issue for the hundreds of adolescents who had seen it was that she was “au naturel”. The changing culture for many young people is for less or even no body hair, so this child was not particularly criticised by her peers for taking the picture or sending it to her boyfriend, rather for her choice of “styling”. Needless to say, the teachers found out and contacted the parents of the young person.

In theory, under the 2003 Act, the girl was guilty of producing child pornography and then, by sending it to her boyfriend, guilty in the distribution of the same. The boyfriend then sent it to his friends who then, in turn, sent it to their friends and as such, not only did they all possess child pornography, but they also engaged in its distribution.

This could have been one of the CEOP’s cases, but fortunately, the school and parents kept the police and social services out of the issue. However, what I found fascinating was the reaction of the school children, as described to me, it was not to criticise the girl per se, but to criticise elements of the picture content. Whereas there was some criticism of the girl for taking the photograph, this was not the central issue for these adolescents. There appears to be an increasing normality within this behaviour and an expectation that boys and girls will ask, and be asked for such images.

Yet social media shares a distortion of information where there are gaps in the understanding of the complete message. Emails, twitter and text messages can appear abrupt, short and to the point, photographs can be seen to be acceptable in one context but not in another and in the case of this young girl, one might wish to ask if it was the girl’s idea to take the photograph or that of her boyfriend.

A few years ago I was presented with a case at Wood Green Crown Court where a teenage boy was accused of a sexual assault on a girl in the same school; the
children were 13 years old and it was well established that she wanted him as her boyfriend.

I discovered that the event in question occurred in school during lesson time where he had to leave his lesson part way through the session in one building, walk down a corridor and a second corridor, out of the building, down the outside of the building, across a playground and into a second building and part way down the corridor into the only area not covered by a camera. The girl was in the second building and she had to leave her lesson while it too was in progress, walk down the corridor, walk down the stairs, walk along another corridor, turn left and into the corridor facing the camera but which also allowed access to the space where the cameras could not see, which is where the intimate act took place.

The act remained hidden from the parents for two months until the girl’s mother found out. It was only at this point that the police became involved. In assessing the case it became clear that either the meeting between these 13 year olds could not have happened (the girl made it up) or, it was probably pre-arranged by the children. My report was not submitted but used as part of the examination of the girl.

The case went to court and I was told it took the jury just 20 minutes to find the boy not guilty. At this point one might wish to consider why the CPS could not see the apparent folly of the case; what was driving the need for a prosecution?

Understanding the missing information is important but the only way one can do this is by understanding the nature of adolescent behaviour and the world in
which they live.

The Sexual Offences Act 2003 was written before the explosion in social media and the advent of the “selfie” and it is these “selfies” that cause difficulties for young people. If a boyfriend, or girlfriend asks for a naked photograph of their partner and they are still at school, then there is an increasingly strong probability that the police will become involved.

If a school girl takes a naked photograph of herself and sends it to her boyfriend he runs a significant risk that he will be charged with receiving and possessing
child pornography.

However, in my experience, if the girl simply says he asked for the photograph, she is seen as a victim of his grooming behaviour.

One of the consequences for the boyfriend is placement onto the sex offenders register for 5 years, thereby stopping him from entering many universities, careers and summer jobs.

Of course, what the authorities often fail to consider is the process of producing the selfie. By way of example, the girl has to find a room in the house where she can remove her clothes, ‘arrange the lighting,’ use a mirror in order to get a full length body shot, if required, then, take several photographs in order to find a ‘good one’ which she can then send. This suggests a greater level of complicity in the process and not that she is simply the unwilling victim of grooming and an abusive boyfriend.

In failing to consider this, and other elements of the “selfie”, the authorities not only avoid addressing the girl’s active role, but also avoid trying to understand
why she would behave in this way. They fail to understand that such behaviour within that culture is increasingly acceptable and within the normal range. Just because we as adults can see the flaws and the consequences of their behaviour, should not mean we criminalise them. Difficulties with the act were spotted at the time; indeed, The Guardian from Monday 24th November 2003 produced a Q&A on the act and noted:

“What about underage sex?
The act criminalises all consenting sexual activity among under 16s. This means it will be a criminal offence for two 15-year-olds to kiss in public. But the Home Office says those below the age of consent are unlikely to be prosecuted if both are enjoying the embrace.”

Therein lies the problem, as shown above. There is no problem until the parents find out, or a sense of ‘reality’ sets in, at which point self-preservation becomes the issue for the naïve adolescent.

However, the 2003 act essentially criminalises those under the age of 16 years having boyfriends and girlfriends. Indeed, the Home Office and subsequently the Ministry of Justice also fail to consider the way in which crime targets might shift the focus from ‘common sense’ towards ‘easy convictions’, from the need to offer young people guidance and understanding toward the need to fulfil quotas. A photograph makes for an easy conviction.

Of course, in considering the Guardian article one might ask, what is the point of having a law that criminalises (teenagers kissing is a criminal offence) while at the same time is dismissed by the Home Office (if they consent and enjoy it we will ignore it). Why create a law that criminalises normal behaviour and that in theory, is designed to be ignored? Does this sound like a sensible position for the Crown Prosecution Service to defend?

If one considers the CPS website, it notes how 14 and 15 years olds who are ‘consenting’ would not normally be considered for criminal proceedings.

However, there are three issues; firstly guidance on whether to prosecute is determined by the maturity of the couple and the existence and nature of a relationship, which in my experience is decided by those without the training or experience to pass such judgements (the police, CPS administrators and lawyers) rather than professionals with expertise in community-based adolescent behaviour such as social workers and psychologists. Secondly, the determination of whether there has been exploitation or not, which in my experience is determined by looking at the younger participant, which is usually the girl. It is not considered by looking at the couple and the nature of their relationship; which requires professional expertise. Finally, where intimate sexual activity is involved, one needs to prove innocence, as opposed to proving guilt in relation to the issue of consent. Again, returning to the Guardian article:

“There has also been a tightening of the approach to "date rape", although there is no specific law to deal with it. Defendants would have to prove they made
"reasonable" efforts to ensure their sexual partner consented. The Home Office said what was considered reasonable will have to be judged "on a case by case basis".”

Who makes the judgement in regard to an adolescent’s behaviour and under what circumstances?

Of course, all this assumes that boys and girls aged 12, 13, 14 and 15 years only have relationships with others of the same age. The reality is acknowledged in other countries where it is accepted that girls often chose partners who are older, often matching social and emotional abilities as opposed to age.

In my view, the 2003 act itself is not only out of touch with normal adolescent development, but the assessment of whether to pursue the issue is often based on limited information by people who have little or no understanding of what ‘normal’ is; their points of reference being their own lives, that of their families and the ‘rule of law.’

Sexual selfies are extremely common in adolescence and just because we as adults can see the difficulties, and the potential consequences of such actions, it does not stop it becoming developmentally “normal”. Criminalising the behaviour simply destroys the early lives of young people, both the girls and the boys. Indeed, I have encountered girls/young women trying to remove the damage from an earlier complaint only to find that the police and the courts ‘do not want to know.’ These young people do not realise that once the damage is done, it cannot be undone.

Girls frequently develop relationships with older boys. Some of this is undoubtedly developmental; socially and emotionally they look for people at a similar level
and that often means looking for older boys. However, some of this is kudos, being able to show their friends that they can ‘pull’ an older boy. Some is undoubtedly related to ego and self-image. However, all this assumes the boys know how old the girls are.

My youngest daughter aged 13 years was often in the company of boys aged 17 to 22 years. In collecting her from various venues I would drop in such phrases as ‘you have school tomorrow,’ and ‘when you start your GCSE’s.’ I always made sure the boys could hear. Unless the boys knew her well they were not to know that this tall, slim, young woman with a stunning figure was so young; indeed, even friends who we had not seen for a while would mistake her for my eldest daughter, who was 5 years older. It is an assumption that we can instantly recognise when an adolescent girl is over 16 years of age, and that adolescent girls don’t lie about their age.

Adolescents are different from adults and if we are to adequately protect them we need to make a distinction between them and their actions, and those of the adults we wish to protect them from. We can all see that a 30 year old pretending via the internet to be a 14 year old is a serious concern. Hence, the adult
asking a befriended 14 year old girl for a naked picture would be a serious and significant issue. However, if her 15 year old boyfriend who she sees at school did the same, one has to argue that this is radically different.

A number of years ago I was asked to see a 16 year old with learning disabilities charged with statutory rape. At the age of 15 he had been seeing his 12 year old girlfriend; she was described as somewhat brighter than him. On his 16th birthday she gave him sex as his present from her and on the following day told
her friends at school. At this point senior teachers found out and reported the incident. He was charged with rape and although not remanded, within hours lost his home. Whereas the judge was sympathetic to both children, the CPS still pressed; “the law is the law and there are no exceptions”.

However, the 2003 Sexual Offences Act was never designed with the behaviour of adolescents and young adults in mind. It was never designed with a view toward normal behaviour and the way in which youth culture develops. Whereas the professionals can see the absolute need to keep our children safe, it is my view that we are trying to do this with a tool that is not suitable.

In my view the 2003 act makes no allowances for what is socially and/or developmentally normal; it makes no allowance for a young person’s age.

What makes the situation even worse is that firstly, the guidance on whether to proceed with a prosecution is poor and secondly, the politicians have forced the
CPS to pursue cases and send them to trial through the need to fulfil quotas.

As far back as 2005 the CPS had a target to deliver of bringing 1.25 million ‘offenders’ to justice; a quota by any other name.

One might wish to ask, are the quotas and the poor guidance preventing the CPS from taking a step back and thinking about their actions on young people Young people are exploring relationships and part of that process undoubtedly involves making mistakes.

I would ask how prosecuting children for making sexual selfies and sending them to their age appropriate girl/boyfriend keeps children safe. I would argue that once the picture has been sent to every other child in the school, the child who made the selfie will not do it again! The children themselves will see such actions as mistakes, and in time, they will learn from them.

Rather than prosecution, why are social services, schools and local authority resources not used as the first step when addressing the behaviours of foolish
adolescents? Why does the CPS not bring in and use real experts to manage and reduce the mistakes of adolescence?

To paraphrase The Guardian from 2003, do we need to prosecute children for kissing?

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