The law on sexual offences in Northern Ireland changed in 2009. The Sexual Offences (Northern Ireland) Order 2008 came into effect on 2 February 2009 and provided a new legislative framework for sexual offences. It amended existing legislation and has important implications for all health professionals, including doctors, and particularly those who treat or advise children and young people.
Doctors in Northern Ireland have long been concerned about their ability to provide health care in the context of their duty under criminal legislation to report evidence of unlawful sexual activity between children. This aspect of the law placed doctors in a difficult situation whereby they themselves risked committing a criminal offence if they failed to report underage sexual activity involving their patients, even where there were no child protection concerns. The broader public health implications of the law, which had potential to deter young people from seeking the advice of health professionals on sexual health matters for fear of being reported to the police, were also of concern to doctors.
This situation changed from 2 February 2009 - the law in Northern Ireland now closely follows that in England and Wales and the new legislation removed the duty to report information about certain offences (explained below). It also brought Northern Ireland into line with the rest of the UK in terms of the law relating to when young people are deemed to be able to consent to sexual activity. Specifically, the age of consent has been reduced from 17 to 16 years old.
Protecting health professionals
The Order ensures that health professionals, amongst others, are not liable to prosecution when they are acting to protect a child or young person, including those with a mental disorder.
The exceptions apply to:
- the offence of arranging or facilitating the commission of a child sex offence
- aiding, abetting or counselling the commission of certain other child sex offences.
The exceptions cover people who are:
- protecting a child from sexually transmitted infection
- protecting the physical safety of a child
- preventing a child from becoming pregnant
- promoting the child's emotional well-being by the giving of advice.
This exception covers not only doctors and other health professionals, but anyone, including parents, whose only motivation is the protection of the child. This means that, for instance, a GP who provides contraception to an under 16 year-old, would be exempt from charges, providing they are acting to protect the child, and do not act to cause or encourage the sexual activity to take place or for the purpose of sexual gratification.
Removing the duty to report evidence of sexual activity between children
Under the Order, it is illegal for a person of any age, including a person under the age of 16, to engage a young person under 16 in any form of sexual activity. The way in which the law will be interpreted applies equally to males and females, whatever their sexual orientation. However, it is not intended that a young person engaging in sex with another young person should be the subject of criminal investigation where the sexual activity is entirely mutually agreed and non-exploitative. In passing the Order, it was not Parliament's intention to punish children unnecessarily or for the criminal law to intervene where it is inappropriate to do so. The aim is to protect children and act to promote their best interests.
A difficulty in pursuing this approach in the Northern Ireland context was the continuing existence of section 5 of the Criminal Law Act (Northern Ireland) 1967, which places a duty on everyone to report to the police information they may have about the commission of a relevant offence (ie one with a maximum sentence of 5 years or more). This would mean that everyone, including doctors, would be under a duty to report to the police evidence of sexual activity taking place involving a young person under 16, even where the activity is entirely mutually agreed and non-exploitative, as set out above.
In order to avoid this scenario, the Criminal Law Act (Northern Ireland) 1967 has been amended to exclude, from the duty to report information about the commission of a relevant offence, an offence under Article 20 of the Order (sexual offences against children committed by children or young persons). Doctors are not therefore under a duty to report sexual activity involving a child aged 13 to 15 years old where the other party is under 18. This exclusion does not apply to information about offences against children under 13 (as set out in Articles 12 to 15), which must still be reported.
It is vital that when medical professionals treat or advise children who are in sexually active relationships with other children, they should consider carefully whether any child protection issues are raised. For example, doctors should be alert to any evidence of an abusive or exploitative relationship, particularly where there is a wide age disparity between the children involved. Doctors identifying such concerns should be prepared to speak to the relevant authorities but should always explain to the child their reasons for doing so and seek the involvement of parents or other carers.
Northern Ireland Office website