Sexual consent: The curious case of the 13 to 16-year-old age category

Susanna Menis, Senior Lecturer in Law, Birkbeck London University

Keywords: Age of consent, Sexual Offences Act 2003, Criminal Law Amendment Act 1885, victim blaming, child sexual exploitation

"If we lift our skirts, they level their eye-glasses at our ankles." Anonymous (1854)

The seven men found guilty of grooming and sexually exploiting girls between the ages of 13 and 16 in October 2025 have brought to light concerns related to the age of consent. In her review of rape cases, Baroness Casey indicates that, often, cases involving minors are treated as ‘sexual activity with a child’ (Sexual Offence Act 2003 [SOA], s.9) rather than as ‘rape’ (SOA, s.1). This allows judges’ creativity in sentencing.

The law is clear that below the age of 16, consent is no defence; this was set in 1885 with the Criminal Law Amendment Act (CLAA). However, a curious disparity exists in the treatment of offences: sexual intercourse with those under 13 was considered by the CLAA a felony (the most severe category of crime), still carrying a maximum sentence of life imprisonment (SOA, s.1, s.5). Similar acts involving girls between the ages of 13 to 16 were considered a misdemeanour in 1885 (‘minor wrongdoing’), carrying a maximum of two years’ imprisonment, with or without hard labour (CLAA, s.5). Today, sexual activity, whether consensual or not, with someone between the ages of 13 and 16 carries a maximum sentence of 14 years’ imprisonment (SOA, s.9 ‘sexual activity with a child’). Baroness Casey calls for this crime to be treated as rape, attracting a maximum life imprisonment. But how did this section come about, and what was its original aim?

This blog examines how historical debates shaped the lesser charge of ‘sexual activity with a child’ for 13–16-year-olds, highlighting socio-cultural biases, legal reluctance, and victim-blaming attitudes that persist today.

Historical Context: The 13–16 Age Bracket Debate

The 13 to 16-year-old category was debated by the House of Lords between 1883 and 1885 and the House of Commons in 1885. The first Bill was triggered by the exposure of a prostitution trafficking ring from England to Europe and cases of luring young girls to work in brothels, many of which were located in London (HL Deb, 30 May 1881, vol 261). The offences contained in the CLAA were meant to criminalise behaviour that fell short of what was considered at that time to be rape (i.e. non-consensual, typically forceful and violent). However, the Houses soon faced the challenge of balancing the protection of girls with the preservation of social customs that favoured and protected men.

The age bracket for criminalisation was the most difficult to agree on. The age of 16 was the least popular, although recommended by the House of Lords Select Committee, 1881, which gave rise to the first Bill. Adding complexity to the debates was the suggestion to criminalise marriage arrangements at the age of 12, which was, as indicated by historian Victoria Bates, a not uncommon age for marriage at the time. In addition, the Houses were worried that men would be unfairly criminalised following a mistaken belief in the age of older-looking girls. Fears of extortion also drove this, that girls and their families would blackmail the man who would pay to keep them from bringing criminal charges (‘compensation’ for that purpose was mentioned over 40 times during the 1883-1885 debates).

The Houses were also concerned that juries, judges, and the prosecution would resist criminalising men in these circumstances (HL Deb, 23 May 1884, vol. 288). This was tied to some views suggesting that women are not without blame in these cases and should be considered accomplices. Although eventually agreed as impractical, the Houses considered that ‘consenting’ girls should be reprehended and sent to either a reformatory, an industrial school or other charity institutions.

Some members indicated that the Bill introduced unnecessary criminalisation; others suggested that a new Select Committee should be appointed to investigate its necessity. Overall, it was thought that although not a priority, there was a sense of urgency which was fuelled by the recent conviction of brothel keeper Madam Jeffries, and the sensational publication by W.T. Stead (The Maiden Tribute of Modern Babylon, 1885) exposing underage sexual exploitation. It was at this final round of debates that members of Parliament agreed to establish the age bracket of 13 to 16 years, where, although consent was not a defence, the sexual act was considered a misdemeanour rather than rape, and therefore attracting a minor prison penalty. Sexual intercourse with a girl below the age of 13 was considered outright rape.

Ongoing Issues: Consent and Victim Blaming

The veil of uncertainty as to how consent is conceptualised and how it may or may not affect the prosecution of an adult for engaging in sexual activity with someone in this young age bracket has never been lifted. Research by Laura Lammasniemi (2020) demonstrates how girls’ alleged consent, even after the enactment of the CLAA, was still scrutinised. Court cases indicate that ‘consent was often discussed as evidence of the victim’s unreliability or wickedness or to argue that the man’s actions were understandable’ (p.259). 

The CLAA’s failure to protect girls between the ages of 13 and 16 was undoubtedly tempered by the socio-cultural and political attitudes of the time. However, whether SOA s.9 ‘sexual activity with a child’ should be amended to be treated as rape or not, it is perhaps time to revisit twenty-first century society’s conception of sexual consent in the context of victim blaming for the 13 to 16-year-old age group.