Parliament Workbench
Data: Motions & questions to 19 Nov 2026

Written Question · S5W-10426 · Session 5

What its position is on someone under the age of 16 being able to give consent to sexual activity.

Answered Asked by Christina McKelvie SNP Lodged 20 Jul 2017

The question

To ask the Scottish Government what its position is on someone under the age of 16 being able to give consent to sexual activity.

The answer

Answered by Michael Matheson on 10 Aug 2017 · 21 days after it was lodged, on time

There are a range of criminal offences relating to sexual activity with a child under the age of 16. These are contained in the Sexual Offences (Scotland) Act 2009 ("the 2009 Act"). The offences contained within this legislation are based on a Scottish Law Commission report into sexual offences with the offences acknowledging and informed by the generally accepted understanding that a child's capacity to consent to sexual activity differs depending on their specific age.
Under the 2009 Act, children under the age of 13 are deemed to have no capacity to consent to sexual activity. Under section 18 of the 2009 Act, it is an offence of rape of a young child where an adult undertakes sexual activity with a child under the age of 13.
Under the 2009 Act, children aged between 13 and 15 are deemed to have only limited capacity to consent to sexual activity. So, for example, where an adult has non-consensual sexual intercourse with a 13-15 year old child, this can be prosecuted as rape under section 1 of the 2009 Act. Where it cannot be proven that the child did not consent, this is still an offence which can be prosecuted using the offence of 'sexual intercourse with an older child' under section 28 of the 2009 Act.
As can be seen, the 2009 Act provides that it is always a criminal offence for an adult to knowingly engage in sexual activity with a child under the age of 16.

In the Official Report

No contribution in the Official Report cites S5W-10426 by reference.