Criminalisation of relationships between teachers and pupils fails to recognise the crucial factor of consent, says Mary Cunneen
It is easy to understand the concerns that have led the Home Office to propose making it a criminal offence for an adult in a position of trust or authority to have a sexual relationship with their 16- to 18-year-old charges. There are many examples of children in residential care who have been abused by those who were meant to be caring for them. Young people in such a setting are particularly vulnerable to those who are in positions of authority and, of course, strong protection is essential.
Likewise, there are examples of teachers who form relationships with pupils which seem wrong, bearing in mind the differences in age and experiences and the position of authority a teacher has over a pupil.
Part of the impetus behind this is the proposed equal age of consent. There's a feeling that, in particular, boys aged 16 and 17 may be susceptible to pressure to enter gay relationships with authority figures and that they thus require additional protection. This assumption ignores the argument for an equal age of consent - that gay men of 16 and 17 are as able as heterosexuals to determine their own sexuality and relationships.
To use the criminal law to provide such protection is plainly wrong and may lead to further trauma for the vulnerable person. Imagine a mature 17-year-old who has had a number of relationships. He is at sixth form college and becomes friendly with a 21-year-old teacher. This progresses to a relationship. Under the proposals, this would be a crime. If it were investigated and the teacher prosecuted the teenager might have to give evidence against the person he loves. They might face imprisonment. Society will label such a relationship as wrong.
Yet taking the same teenager in a different relationship, there is nothing to prevent him and his girlfriend (of her and her boyfriend) eloping to Gretna Green and legally marrying, nor from having children and raising them in the stable family atmosphere the government is so keen to promote. Here, any move towards criminalisation would rightly be seen as draconian.
It has been suggested that the proposals could be restricted to residential settings. But again, there are obvious iniquities: a relationship between a 19-year-old hostel worker and 17-year-old resident would be criminal.
People in authority have considerable power over those in their care and are thus in a special position, requiring rules and regulations to guard against inappropriate behaviour. In most cases sex would be wrong because of the external circumstances.
But criminalisation fails to recognise the crucial factor - consent. Does it really help vulnerable young people to place them in a position where a consensual loving relationship risks prosecution?
Surely a better solution lies in professional codes and disciplinary procedures. This would signal that such a relationship was not appropriate within the professional context - not that it was a crime which could lead to the sex offenders register and a stint doing porridge. Mary Cunneen is legal officer at Liberty, the human rights organisation
Young people are vulnerable and need to be able to trust those in authority, says Doug McAvoy
You might well ask how the Government's position in making it an offence for a person in authority to have sexual relations with a teenager under the age of 19, (even though the young person may be over 16 and consenting) can be justified, when we're all supposed to be equal under the law?
Providing the legislation is applied to relationships between individuals where there is a direct link of authority, teachers - and the general public - should have no difficulty understanding this. Young people are vulnerable and that knowledge permeates teachers' relations with their pupils.
Teenagers have a right to be protected from their own innocence and the dangers inherent in their desire to be "grown up". They must be able to trust those in authority. And they do trust their teachers. So do their parents.
Teachers, parents and pupils need to know that friendly relations between teacher and pupil are entirely professional and are based on mutual respect and recognition of the role each plays. Obviously, sexual contact between teacher and pupil is an abuse of that professionalism.
Currently, under the age of consent, the law applies to teachers no differently from others outside the profession. Teachers who break the law can be prosecuted. However, teachers who abuse their position by engaging in inappropriate relations with pupils over the age of 16 are the subject only of disciplinary procedures, which includes possible sacking.
The proposed legislation is concerned with the need to protect the professional, caring relationship and trust which should exist between young people and those in authority over them. For many years, the NUT has emphasised that such relationships are improper and an abuse of the professional relationship which must exist between teacher and pupil.
Some have suggested that the situation is best dealt with through a school's own disciplinary arrangements for teachers. But simply being sacked from one school does not necessarily bar an individual from taking a permanent teaching job elsewhere or working as a supply teacher through an agency. Qualified teachers cannot be employed in either capacity if they are on List 99, the Government list of barred teachers. Inclusion on that list is virtually automatic if a teacher is convicted of a criminal offence involving sexual abuse.
The proposed new law will underline to teachers and parents the position of trust which teachers hold and which must not be violated. Such a reassurance would go a long way to overcoming the public's scepticism about professions disciplining their own, which has come into some disrepute in recent years.
On the other hand, the new law must be reasonable. It must be confined to relations with a pupil in the teachers' own school. Otherwise, the 24-year-old teacher who meets an 18-year-old from another school at a nightclub would be put in an impossible position. The teacher would be placed in legal jeopardy though there is no professional relationship. That cannot be the Government's intention. It would serve to discredit such a new law and undermine the protection it is aimed at providing. Doug McAvoy is General Secretary of the National Union of Teachers (NUT)