Law regarding consent is not confused, wrong or unfair - Sandra Paul writes for The Law Society Gazette
Under the SOA it is illegal for certain professionals, including teachers, to engage in sexual activity with a 16 or 17 year old as they are considered to be in a position of trust in relation to the young person. The list of professions recognised by the SOA as ‘positions of trust’ is limited and at present sports coaches are excluded from this category. The proposed amendment seeks to close this loophole.
The purpose of including ‘positions of trust’ in the SOA is to recognise the potential for exploitation of children who are over the legal age of consent but are not yet adults. It recognises that certain professions have unfettered access to children in situations where there is an inherent imbalance of power which could potentially be exploited or might otherwise affect the young person’s judgement in decisions regarding consent. Absent this additional layer of protection, the law concerning consent perhaps offers insufficient protection for a young person aged 16 or 17, still legally a child, who agrees to the sexual activity. Including coaches moves the issue away from whether the child consented, to sexual activity being prohibited, without more, because of the relationship of trust between the child and coach.
Coaches often have a very close, personal relationship to the children they coach. Coaches often have lots of one-to-one contact with children at training or at competitions, where parents may not necessarily be present. Children, particularly in the high performance environment, may be competing for selection for a particular team or event, in which the close attention of a coach can be perceived by the child as instrumental to success. Coaches are often experts and held in high esteem, and may have made significant contributions to a child’s performance, team, or to the sport in general. All of these factors may make it more difficult to challenge concerning behaviour and complicate the dynamics of consent.
The second reading of the Bill is scheduled for 23 October September 2020. Although there are several further stages this Bill needs to progress through before securing Royal Assent to become an Act of Parliament, it is difficult to see how it could be opposed. It will take nothing away from the vast majority of coaches who are already mindful of and guard against, these issues in their practice.
Whilst the Disclosure and Barring Service checks will still be the primary tool for ensuring that those who may pose a risk are prevented from working with children and vulnerable adults, this Bill presents a welcome additional safeguard for children to protect them from harm and to help ensure their safety in sport.
For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.
Sandra Paul is a partner in our Criminal Litigation team. She has a wealth of experience in criminal and related litigation. The majority of her work concerns defending allegations of sexual misconduct. She works with clients in the UK and abroad, including allegations following the #MeToo campaign.
She has a particular passion and aptitude for working with children and young adults, navigating them safely through the youth justice system. Youth crime is a specialist area in which Sandra is a leader in her field.
Claire Parry is an associate (Barrister) in the Regulatory Team . She has extensive experience of investigating and presenting fitness to practise cases of all levels of complexity. Her current practice involves investigating cases relating to professional misconduct, lack of competence and ill-health on behalf of the Health and Care Professions Council (HCPC).
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