New law on teenage sex 'will make criminals of young girls'
Professor Kathleen Marshall said that the proposal, which could see girls facing prosecution for consensual sex in the same way as boys, should be abandoned until its likely consequences can be studied.
The provision forms part of the Sexual Offences Bill, which was launched in June.
The move by the government ignores a previous report by the Scottish Law Commission which recommended consensual sex between older children should not be a criminal offence, and should instead be grounds for referral to a children's reporter on welfare grounds, effectively decriminalising sex between youngsters over 13.
The bill instead confirms it is an offence for children between 13 and 15 to have sex – and this applies to girls as well as boys.
A Scottish Government policy document published with the bill said: "We have adopted this approach as we believe that the way in which the law currently acts to criminalise only boys (where the activity is consensual and both are of similar age) is discriminatory."
But Prof Marshall said this could have a range of unintended consequences – including criminalising young girls and discouraging them from seeking medical advice.
"We need to be certain that the threat of legal punishment and criminalisation does, in fact, prevent early sexual activity," said Prof Marshall.
"Extending the threat – empty or otherwise – to girls may have serious negative consequences, such as preventing them from seeking help and advice."
She went on: "Likewise, I have sympathy with those people who worry that decriminalising consensual sex between 13 and 15-year-olds may lead to it becoming normalised. I would not like this fear to be realised."
Prof Marshall insisted she did not want the age of consent lowered, and that what she was pushing for was a welfare response, not a criminal one.
A Scottish Government spokesman defended the plan: "This is not about prosecuting children in the adult criminal courts for consensual sexual activity." Labour also backed the bill's provisions. Its spokesman, Paul Martin, said: "By decriminalising underage sex, we would be sending out the wrong message to our children and also to adults who prey on our children.
"The age of consent in the UK is 16, and it should be 16 for both boys and girls. We need to ensure that we protect our children and put their safety first."
John Deighan, parliamentary officer for the Catholic Church, said such laws were vital.
"We understand Kathleen Marshall's intentions, but the criminal law provides protection," he said.
"It's not about making life difficult for youngsters, it's about giving the authorities the mechanisms to intervene where there is unusual sexual behaviour, and sex between 13-year-olds is unusual."
But Anne Houston, chief executive of the charity Children 1st, supported Prof Marshall. She said: "We agree with the Children's Commissioner that criminalising young girls aged 13-15 who engage in consensual sexual activity with their peers would be a retrograde step.
"We want to see greater clarity about where the law and its implementation stands, as the current uncertainty is hampering young people's ability to access the information and advice they need to make positive decisions about their sexual health."
AT PRESENT, the law concerning underage sex states that it is an imprisonable offence for males to have intercourse with girls aged between 13 and 16, whether or not consent is given.
The penalties can range from 12 months under summary hearing – ie, with just a sheriff sitting – and up to ten years in jury trials.
Those found guilty also face being placed on the sex offenders' register. However, where the ages of the boy and girl are similar, the boy is likely to be dealt with more leniently.
John Scott, a human rights lawyer, said: "It is a prosecutable offence and it can, and does, get used on young guys."