Explainer: Why men are having teen rape charges 'downgraded'

The Herald Scotland

19-06-2025

In her 2025 audit of group-based child sexual exploitation and abuse, Casey noted that while the legal age of consent is 16, prosecutions involving this age group are often dropped or downgraded—especially when a victim is said to have consented or been 'in love' with an adult perpetrator.
READ MORE: Scots legal 'grey area' may let men avoid teen rape charges
'Open to interpretation'
'Although any sexual activity with 13–15-year-olds is unlawful, the decision on whether to charge, and which offence to charge with, is left more open to interpretation,' said Baroness Casey.
The peer argues this flexibility is well-intentioned—designed to avoid criminalising young people close in age or those who mistakenly believe someone is older—but warns it is being exploited by adult men who groom children.
Her recommendation: make all penetrative sexual activity between adults and under-16s automatically rape, as is the case in countries like France.
What the law says in Scotland
Age of consent
Under the Sexual Offences (Scotland) Act 2009, the age of consent is 16. Any sexual activity involving a child under 16 is a criminal offence, even when both parties are underage.
Children under 13
The law is unequivocal: sexual activity involving a child under 13 is automatically treated as rape or sexual assault. Consent is not a defence. Scottish Government guidance requires that any such concerns be escalated via local child protection procedures.
Children aged 13–15
Sexual activity in this age group is illegal, but prosecution is more discretionary. Decisions may consider age gaps, coercion, grooming, and vulnerability. Cases can be referred to the Procurator Fiscal, the Children's Reporter, or managed through safeguarding rather than the criminal courts.
National guidance and crime recording
National Guidance on Under-Age Sexual Activity (2010): Advises that not all underage sexual activity is abuse, but significant age gaps or power imbalances should trigger child protection responses. Mandatory reporting applies to under-13s.
Scottish Crime Recording Standard: Requires prompt recording of sexual crime reports. Categorisation depends on available evidence, including victim statements and corroboration.
Maximum penalties
Under the 2009 Act, the maximum sentence for sexual activity with a child under 16 is 10 years. Rape and assault by penetration can result in life imprisonment.
Home Secretary announces law change in England and Wales
On Monday, Yvette Cooper told MPs she would legislate to tackle this great area:
'We will change the law to ensure that adults who engage in penetrative sex with a child under 16 face the most serious charge of rape, and we will work closely with the Crown Prosecution Service and the police to ensure that there are safeguards for consensual teenage relationships.'
Shadow minister calls for reform in Scotland
Scottish Conservative shadow minister for victims and community safety, Sharon Dowey, said there could be alarming consequences if the law changes in England but not in Scotland:
'The Casey Review revealed some cases which will have deeply troubled the public and parents, given the age of those involved.
'They will be worried that the same grey area in the law could still exist up here where those who have sexually abused teenagers are not properly punished.
'If the rules down south are changed in light of these harrowing cases, then the law must be tightened up in Scotland as well to avoid any possibility of us becoming a safe haven for child abusers.'
Summary
The legal grey area flagged by Baroness Casey lies in how sexual activity with children aged 13–15 is handled: illegal by statute, but often inconsistently prosecuted.
In Scotland, while the law criminalises all under-16 sexual activity and removes the possibility of consent for under-13s, the approach for 13–15-year-olds is more discretionary, which could lead to some cases being dropped or downgraded.