Sexuality is an important aspect of adolescent development

When Netflix released the first season of its groundbreaking show ‘Sex Education’ in 2019, many reviews praised the show for removing the societal taboo around adolescents’ sexual exploration. The series tells the story of adolescents in modern-day Britain exploring and learning about their sexuality, and the failure of the school’s sex education curriculum to provide them with answers to their burning questions around sexuality, intimacy, sexual violence, toxic masculinity and consent. The show gives the viewer a frank insight into what adolescents’ sexual development means for adolescents today: understanding and negotiating self-love with oneself and others, the complexity of consent, the diversity of sexual desire and expression and the interconnection between online and offline sexual exploration.

At the same time, ‘Sex Education’ also depicts the myriad of potential harm that can result from adolescents’ sexual exploration such as unwanted pregnancies and various forms of sexual violation such as harassment, assault and non-consensual sharing of intimate images online.

Just like lawmakers and policymakers worldwide, many adults in ‘Sex Education’, including school management, teachers and parents, struggle to find a balanced approach to adolescents’ sexuality that acknowledges how exploration forms an inherent part of age-appropriate sexual development, while shielding adolescents from the potential harm associated with sexual exploration mentioned above.

When observing the regulatory landscape on adolescents’ sexual exploration across the globe, it is particularly concerning that discussions around adolescents’ sexual exploration both offline and online are often assessed purely through a ‘protection lens’. Such a one-sided approach carries the risk of criminalisation or undue state-sanctioned restrictions on adolescents’ sexual exploration both online and offline. Instead, a holistic child rights perspective should be taken, as it is crucial to protect all rights under the Convention on the Rights of the Child: protection against harm and privacy, including sexual exploration.

Legal responses to adolescents’ sexual exploration online and offline

Adolescents’ sexual exploration is a key factor in the age of consent to sexual activity under criminal law, i.e. the minimum age at which adolescents can legally consent to sexual activity with another person. Setting the age of consent to sexual activity is a complex task considering that the law needs to factor in adolescents’ specific vulnerabilities when assessing their ability to consent. This includes potential power dynamics between the adolescent and the other person, which can emanate from age gaps between the involved actors, hierarchical relationships such as between teachers and students and potential grooming behaviour by the adult. As a way of acknowledging that sexual exploration between adolescents can form part of age-appropriate sexual development, many countries exclude consensual sexual exploration among adolescents from their range of criminal provisions. This often includes so-called ‘Romeo and Juliet clauses’ that decriminalise sexual activity between consenting adolescents who are close in age. At the same time, some countries still struggle to acknowledge adolescents’ sexual exploration. One reason is the belief that allowing adolescents to explore their sexuality might encourage them to engage in sexual behaviour in the first place. Another reason relates to conservative views around premarital sex. In countries that raise the age of consent to marriage to 18 years, a subsequent adjustment of the age of consent to sexual activity often follows to criminalise any form of premarital sex among adolescents. This exposes adolescents to criminal sanctions and potential registration with a sex offender registry, where these registers exist.

The approach in the online environment is similar, because as with sexual exploration among adolescents in real life, adolescents are at risk of being criminalised for their online sexual exploration. In many countries, adolescents produce and share sexualised images and texts within consensual relationships as part of their online sexual exploration. Due to expansive legal definitions, this can amount to the criminal offence of producing or sharing ‘child pornography’, i.e. child sexual abuse material, which puts adolescents at risk of criminal prosecution. Over the past ten years, legislators across the world have started advocating an exemption for adolescents from criminal prosecution under narrowly defined circumstances. As is the case with offline sexual exploration, this decriminalisation is a difficult balancing act between protecting children from sexual abuse and exploitation and acknowledging their sexual exploration.

In both online and offline contexts, it is important to note that even in countries that acknowledge the need to exclude adolescent sexual exploration from criminal sanctions, these legal provisions are often gendered, setting different ages for boys and girls and in many cases only allowing heterosexual sexual exploration, leaving adolescents with diverse sexual orientations vulnerable to criminal sanctions. So while positive progress has been made in some countries regarding the acknowledgement of adolescents’ sexual exploration, there are still considerable gaps in terms of acknowledging all adolescents’ sexuality.

Conceptualising children’s sexual exploration within a child rights framework

The Convention on the Rights of the Child (CRC) emphasises the duty of States to protect children from all forms of sexual abuse and exploitation both offline and online (Arts 19 and 34 CRC). In contrast, adolescents’ sexual development and age-appropriate sexual exploration are not explicitly mentioned in the CRC. However, a clear grounding of adolescents’ sexual exploration in the CRC is important for various reasons.

Firstly, despite the recommendations, many countries do not give adolescents’ sexual exploration enough weight when balancing their protection within sexual exploration. This can result in restrictive legislation that does not acknowledge adolescents as rightsholders. Clearly rooting adolescents’ sexual exploration in the CRC would therefore give child rights advocates a strong argument when engaging with legislators and policymakers that a proportionate balance needs to be found between adolescents’ right to sexual exploration and their right to protection from sexual abuse and exploitation. This would further support the case that the age of consent to sexual activity and the age of consent to marriage should not be aligned as the purpose of the age of consent to sexual activity is not only for the protection of children from sexual abuse and exploitation – it also has to factor in adolescents’ right to sexual exploration.

Furthermore, private communication among adolescents online, including their most intimate exchanges that involve sexual exploration, is at risk of being monitored by private sector companies such as online platforms that aim to detect potential child sexual abuse material. While this is, of course, a primary objective, the importance of adolescents’ sexual exploration and guaranteeing privacy in these exchanges is often swept aside all too easily on the grounds that children and adolescents should be protected from online sexual abuse and exploitation.

When conceptualising regulatory measures surrounding adolescents’ sexual exploration, it is therefore important to consider the various rights affected under the CRC for protection from sexual violence, abuse and exploitation, as well as for adolescents’ sexual exploration. When exploring this balancing act, any measures have to be assessed in the context of adolescents’ evolving capacities, recognising that adolescents are entitled to increasing levels of agency and responsibility in exercising their rights as they mature. Further research is therefore required on how to balance these rights proportionately in different contexts.