"Passing a bad law is a criminal act"

An article I wrote for tomorrow's Sunday Herald has just been published on their website. Unfortunately, some paragraphs have been lost in the editing process which means that an article which started out as a defence of the Scottish Law Commission's proposals to take sex between children under 16 out of the criminal law's scope - while raising some doubts about the Commission's proposed "proximity of age" defence - now looks like a self-contradictory attack on the proposals altogether.

(In addition, the Sunday Herald has taken out a few words in the first paragraph which mentioned that even teenage kissing could be a criminal offence in England and Wales under the Sexual Offences Act 2003. I suspect they might have taken them out because the claim seemed so ridiculous as to be patently incorrect, but sadly it's true. There's a good explanation available on the BBC News website.)

For the record, the article should have ended as follows:

"This is not to say that the fears of bodies like the Christian Institute can be ignored. There must be a danger that if the Commission’s proposals make it into law, then some teenagers will misinterpret the changes and believe that the age of consent has been radically lowered. That is better addressed by education than by passing unenforceable laws, but it means it is crucial that the Scottish Government considers exactly how to communicate the effect of new legislation.

And just one other thing. In proposing a defence for teenagers two years or less apart, the Commission seems to be concerned that they may not know each other’s exact birthdays. So, they suggest that the defence should be based on “whole age”. That is, if a boy of 16½ engages in sexual activity with a girl just turned 14, they would be regarded as only two years apart. But that would cause problems when the boy turned 17 and the girl was still 14 – would their ongoing sexual activity suddenly become criminal now that they were three years apart?

Ah, says the Commission, we have a solution: there will be a supplementary defence saying that sexual activity between teenagers three years apart in “whole age” will not be criminal if they had previously engaged in sexual activity while they were only two years apart. But that cannot be right. On that basis, the law would tell this hypothetical couple that, to avoid committing a crime, they were obliged to start engaging in sexual activity on the evening of the boy’s 17th birthday unless they wanted to wait six months until the girl turned 15.

It surely cannot be right that the law should encourage teenage sexual activity in this way. Of course, teenagers are hardly likely to keep a copy of the Sexual Offences (Scotland) Act on their bedside tables to guide their sexual choices, but that is hardly the point. Criminal law is supposed to be addressed to the public, and if a rule of the criminal law has to be defended on the basis that no-one other than lawyers will pay attention to it, it is a bad rule."