Report of the Special Committee on Moral Delinquency in Children and Adolescents Part 9

But where the girl is over 12 and under 16 her consent may be raised as a defence if:

(_a_) The girl is older than or of the same age as the person charged; or

(_b_) It is made to appear to the jury that the accused is under the age of 21 and had reasonable cause to believe that the girl was of or over the age of 16 years.

The law on this point is not uniform throughout the Commonwealth. In Victoria the defence of consent is available only when the girl is older than, or of the same age as, the accused (_vide_ Crimes Act 1928, Vict.

3664, sec. 45). The Committee has been officially informed that this law (most rigid when compared with the defence of consent available in this Dominion) has been working well since it was first enacted about fifty years ago.

In England the defence of consent is available to any accused under the age of 23 years, but only on the first occasion on which he is charged with the offence.

In an English case, _R._ v. _Banks_, (1916) 2 K.B. 621, this defence of consent was raised by a man who said that he had no idea that the girl was under the age of 16 and that he did not think about her age at all, but that she had the appearance of a girl of 16. The Court of Criminal Appeal held that he was properly convicted. On the other hand, the Court of Appeal in New Zealand in _R._ v. _Perry and Pledger_, (1920) N.Z.L.R.

21 (despite the argument of the Solicitor-General to the contrary), decided that, if in the eyes of the jury the girl might well be taken by an ordinary person to be of the age of 16, that would be evidence (not necessarily proof) of a reasonable cause for the belief that she was of that age. Hence it comes about that under our law it is not necessary for an accused person to go into the witness box or to call any evidence to show that the girl appeared to him to be over the age of consent. The nature of her clothing, red on her lips, the fact that she is said to smoke and drink, and evidence on other similar matters, enable a verdict of acquittal to be given.

=(4) Weaknesses in the Law=

_(a) Operation of the Rule Regarding Age of Consent_

The readiness of juries to acquit in cases of carnal knowledge of, or indecent a.s.sault upon, girls may be due to several facts, of which the following may be mentioned:

(i) The failure of the law to make it an offence for a sophisticated girl to entice a male into carnal knowledge of her.

(ii) The modern practice of not publis.h.i.+ng the names of the girls involved.

(iii) The fact that the defence of consent is available to persons under 21 years of age is a factor making it more difficult to obtain a conviction when the person charged is over 21 years.

_(b) Girls Not Liable for Permitting Indecency or Carnal Knowledge_

The law has always been chivalrous to females. It is not an offence for them to allow to be done to themselves things which, when they are done, render the other party liable to heavy terms of imprisonment.

There is also a practical reason why the State has not legislated against females on this point, viz., the antic.i.p.ated difficulty of obtaining convictions if the female, when called as a witness, is able to plead that she should not be required to testify lest by doing so she might incriminate herself. This practical objection, however, would lose all force, both as regards cases where the accused are under 21 years and those in which they are over 21 years, if the proposed offence by females were restricted to girls under 16 and thus triable in the Children's Court, and not by indictment. The judicial process in the Children's Court is, or can be, such a speedy process that the Crown would not be hampered in making its charge against the male in the ordinary Criminal Court by the possibility that the case would fail if the girl pleaded that she should not be required to answer questions.

_(c) Girls Not Liable for "Indecent a.s.sault" on Boys_

It should also be made an offence punishable in the Children's Court for any girl to indecently a.s.sault a male.

Under section 208 of the Crimes Act every person, male or female (including a boy under 14 years of age), may be convicted and sentenced to seven years imprisonment for an indecent a.s.sault on a female. Under section 154 a male may be sentenced to ten years imprisonment for an indecent a.s.sault on a male (consent is not a a defence); but a female cannot be convicted of "indecent a.s.sault" on a male if he permitted the act.

This anomaly may have arisen because, in ancient times and, later, when the criminal law was set out in statutory form, it was not considered likely that females would descend to conduct which would entice males into the commission of one of these offences.

Having regard to the evidence before the Committee that many boys have been tempted and encouraged into s.e.xual crime by the indecent conduct of girls themselves, in picture theatres and elsewhere, the time has arrived when boys should be protected by letting the girls know that they too commit an offence when they act towards boys in an indecent manner.

=(5) Proposed Reforms=

(_a_) It should be made an offence punishable in the Children's Court for a girl whose age is under 16 years to permit a person to have carnal knowledge of her or to handle her indecently.

(_b_) It should also be made an offence punishable in the Children's Court for any girl to indecently a.s.sault a male.

(_c_) Consideration should also be given to the desirability of amending sections 208 and 216 of the Crimes Act and section 203 of the Justices of the Peace Act. There are three courses which might be followed:

First, to allow the law to remain as it is.

Secondly, to strike out the proviso which permits this defence of consent to be raised in cases where the accused is under 21 years and older than the girl.

Thirdly, to alter the wording of the provision regarding age of consent from--

" ... it is made to appear ... that the accused was under 21 and had reasonable cause to believe that the girl was of or over the age of 16."

to--

" ... if the accused (being a person under the age of 21 years) took all reasonable steps to ascertain that the girl was of or over the age of 16 years and did as a result thereof believe that she was of or over the age of 16 years."

Any legislation such as is suggested in this subheading would involve an amendment of the Crimes Act and not merely an amendment of the Child Welfare Act. The Committee therefore suggests to the Government that further information be obtained as to how the law regarding "age of consent" is operating in other jurisdictions and that the information so obtained be submitted to the Law Revision Committee for its consideration.

_XVI. Child Welfare in New Zealand_

=(1) History of Legislation=

In order the better to understand the limits and extent of the powers under the Child Welfare Act, and how these powers are capable of improvement and extension, it is desirable to set out briefly the history of the law pertaining to inst.i.tutions and homes established in New Zealand for children in need of care or correction.

The first provisions were contained in the _Neglected and Criminal Children Act 1867_. This statute provided that boys and girls under fifteen years of age could be committed to industrial schools or reformatories for periods up to seven years. In 1873 the Master of any Industrial School established under the Act became _in loco parentis_ to children of parents who, because of their criminal and dissolute habits, were unfit to have the guardians.h.i.+p of their children.

In 1874 a _Naval Training Schools Act_ was pa.s.sed under which boys of 10 to 14 years of age, convicted by magistrates for reasons varying from vagrancy to bad a.s.sociations, could be detained in naval training schools or on training s.h.i.+ps and apprenticed to the sea.

In 1882 the _Industrial Schools Act_ was pa.s.sed making better provision for the control, maintenance, education, and training of children under the apparent age of fifteen years who were found to be dest.i.tute, neglected, uncontrollable, living in a detrimental environment, or a.s.sociating with persons of ill repute, and also for children who had committed offences against the law. Prior to the pa.s.sing of this Act several homes, orphanages, and schools had been established in various parts of the Colony by religious organizations and benevolent societies.

They received financial aid out of a vote for charitable inst.i.tutions administered by the Colonial Secretary.

The _Private Industrial Schools Act_ of 1900 was introduced as a result of public resentment against the treatment of boys in a private school.

For the protection of inmates a right of inspection of these private schools was given to Judges, Members of Parliament, and other named persons.

The _Industrial Schools Act_ of 1908 was mainly a consolidation of the law up to that time but the age of children subject to the Act was increased to 16 years.

The _Child Welfare Act_ of 1925 and the amending Act of 1927 made substantial changes in the att.i.tude of the State towards children who had erred. They gave legislative expression to a new world-wide desire for a more scientific approach to the social problem of dealing with children who had manifested anti-social tendencies.

The new features provided for in these Acts were:

(_a_) A special branch (later renamed a Division) of the Department of Education to be known as the "Child Welfare Branch"

was established. The Branch or Division consisted of the Superintendent of Child Welfare, who, under the control of the Minister and the Director of Education, was charged with the administration of the Act; a Deputy Superintendent; and such Welfare Officers, managers, etc., as might be required.

(_b_) Power was taken for the creation of Children's Courts.