Teachers should not face prosecution for sexual relations with pupils above the age of 16 (the age of consent) − this is what Chris Whitehead, the general secretary of the NASUWT said in October 2008. Jenni Whitehead discusses

Chris Keates, general secretary of the National Association of Schoolmasters Union of Women Teachers (NASUWT), said recently that teachers should not face jail for having sex with pupils who are over the age of consent. Keates made the comment in an interview for the Tonight programme broadcast at the beginning of October. This comment was viewed as outrageous by the child protection community and a dangerous comment for a person in Keates’ position to make. Some organisations called for her resignation and broadsheet newspapers’ websites received scores of comments.

The legal position
The abuse of a position of trust is a criminal offence under the Sexual Offences Act 2003. The act says that a person over the age of 18 who is in a position of trust over a person under the age of 18 commits a criminal offence if they involve the younger person in sexual activity. The offence first appeared in in sections 16-24 of the Sexual Offences (Amendments) Act 2000, which lists the following occupations to which the law applies:

  • Institutions looking after young people who are detained under a court order or enactment, such as a young offenders institution.
  • Accommodation provided by local authorities and voluntary organisations under statutory provision.
  • Hospitals, independent clinics, care homes, residential care homes, private hospitals, community homes, voluntary homes, children’s homes and residential family centres.
  • Educational institutions.

The Sexual Offences Act 2003 introduced additional occupations to which the position of trust laws apply. These cover people who look after young people under 18 in the following ways:

  • Looking after them on an individual basis by providing services under the Learning and Skills Act 2000. This includes Connexions personal advisers.
  • Regularly having unsupervised contact with them as part of local authority provision of accommodation to young people who are in need, under police protection or detention, or on remand.
  • Having regular, unsupervised contact with them as someone who regularly reports to a court on matters of their welfare.
  • Looking after them on an individual basis as a personal adviser appointed under relevant legislation, such as when young people leave local authority care.
  • Looking after them in an official capacity on a regular basis when they are subject to a care order, supervision order or education supervision order.
  • Acting as their guardian as set out in the Children Act 1989, the Adoption Rules 1984 and the Family Proceedings Rule 1991.
  • Looking after them on an individual basis after their release from detention or in pursuance of a court order. This includes youth offending teams and treatment providers.

The act’s provisions mean that, subject to a number of limited definitions, it is a criminal offence for a person in a position of trust to engage in any sexual activity with a person aged under 18 with whom they have a relationship of trust, irrespective of the age of consent, even if the basis for their relationship is consensual. A relationship of trust exists where a member of staff or volunteer is in a position of power or influence over a pupil or student by virtue of the work or nature of the activity being undertaken. Sexual activity is given a broad definition that includes:

  • sexual activity including sexual touching through to vaginal or anal intercourse
  • causing or inciting sexual activity with a child
  • sexual activity in the presence of a child
  • causing a child to watch a sexual act.

Teachers are not being singled out
As you can see from the list of occupations defined by both the 2000 (Amendments) Act and the 2003 act, teachers are not being singled out for prosecution. This offence applies to many professions, the common denominator being that they are all positions where a person has power and influence over children that could be used to perpetrate abuse.

Age of consent
The age of consent for sexual intercourse is 16 but this does not apply to this act. The act states that the offence applies where the child is under 18. The difference in age caused many respondents to newspaper reports to complain that there was one rule for the general public and another for the teaching profession.

From a child protection perspective the law is not there to stop teachers from having relationships that would be legal for people outside the profession. The law uses the age of 18 to recognise that many young people, while over the age of consent for sexual activity, are still reliant on adults who hold some responsibility for their care and that young people are, therefore, vulnerable to the potential abuse of power by those adults. Young people as pupils cannot be seen as being on an equal footing with their teachers in respect of power and self-determination. The offence does not set out to change the age of consent; it acknowledges that a person in a position of trust is expected to respect their position and not abuse it.

Comments in the media
As might be expected, the newspapers made the most of Keates’ comments and suggested that she was condoning relationships between teachers and pupils. I do not agree with Keates’ view that the development of a sexual relationship with a pupil could ever be seen as a mere ‘error of professional judgement’. However, I think we need to be clear that she was questioning whether teachers should be criminalised for sexual activity with pupils and whether their names should be put on the sex offenders’ register, but not actually condoning such behaviour.

Most of the broadsheets received posts on their websites in response to their reports of Keates’ comments. These comments ranged from total condemnation of teachers who have sexual relationships with pupils to support for Keates’ view that disciplinary action is more appropriate than criminal charges. A comment posted on the Mail on Sunday website said:

From 13 to 15, I was groomed by a teacher, who bedded me on my sixteenth birthday. He was jealous, moody and manipulative and blighted my life with his thoughtless behaviour. Over 40 years later I am still not free of his selfishness, which has dogged my relationships ever since. I can assure you that his actions were devastating – but at the time not illegal.

Blaming the child
For me, one of the most disturbing aspects of the reporting of Keates’ comments was the number of posts to newspaper websites that suggested that children held some responsibility for the corruption of teachers. Here are two examples:

It takes two to tango, if there has been undue pressure the child can refuse or complain to a parent, but all too often the boot is on the other foot, the teacher becomes the target of an over-sexed child. If the teacher refuses then there is always the chance of an unfounded accusation that ruins his or her career.

Have you seen the state of some 15/16/17 year old girls…We all know what men are like, men are generally animals who can’t control there urges… and faced with these sort of girls there is obviously going to be a problem!

Most of the articles used quotes from the interview with a young man who at 15 was seduced by his dance teacher. He was quoted as saying that the affair had ‘ruined his life’. These comments were met for the most part with belief.

When I was fifteen none of the lads in my class would have turned her down. Ruined his life! Oh yea.

Talking to staff
Make sure this issue is addressed in the induction process for staff. A fairly common response from staff faced with an allegation suggesting an inappropriate relationship is, ‘but she or he is over 16 – how can this be illegal?’ Whatever staff think about the present law, it is essential that they abide by it. The overriding feeling coming from the posts made by parents has been one of disgust. Young people are in our care while they are at school, regardless of their age and parents do not expect teachers to behave in anything other than a professional way.

Members of staff other than teachers also need to understand the law. There are many roles that hold a position trust over pupils: learning mentors and school counsellors are just two of them.

Coping with crushes
Managing a young person’s crush can be extremely difficult. Staff can feel isolated and vulnerable and may make matters worse by trying to manage the situation on their own. Make sure that this issue is dealt with as part of the induction process and try to create an ethos that would make it easier for a member of staff to ask for help where they are the subject of someone’s crush.

Is there ever an acceptable excuse?
Chris Keates suggested that teachers who develop relationships with pupils could be said to be guilty of an ‘error of judgement’. This argument does not really stand up. Teachers who develop such relationships when they know the law are deciding to commit a crime, not just committing an error.

There is an answer for those truly rare situations where the relationship can be viewed as having long-term loving future. Either the couple wait until the pupil leaves school or one of them moves school to legitimise the relationship .

Call me a cynic, but in my experience of dealing with these cases it has often been the case that the relationship under investigation turns out to be one of a series of inappropriate ones and that a common factor is secrecy. For the naïve, romantic 17-year-old, secrecy might be part of the excitement in the early stages. However, in the end most young people, I would suggest, would want their relationship to be out in the open and approved of.

The member of staff who strives to keep a relationship secret knows that they are in the wrong and putting the pressure on a pupil to keep their behaviour a secret is a manipulation, it is an abuse of their position of trust.

We are unable to publish reader comments about individual child protection concerns on this website. If you are worried about a child please call the NSPCC Helpline on 0808 800 5000 for help and advice. Alternatively you can contact your Local Safeguarding Children Board (LSCB) through your local council.

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