Plenty of reader responses, then, to yesterday's post picking through the falsehoods and faulty logic of the Sunday Star Times "shock" lead story on the Crimes Amendment (No 2) Bill. With a single exception they have all been roughly as appalled as I was.
It was discussed quite usefully in the local blogosphere too - lending weight to the idea that you get a more rational discussion these days in blogland than in the overly-spooked mainstream press. Unfortunately, people tend to believe what they read in the papers.
David Farrar, who was, until fairly recently, working for the National Party, points out that the SST's scoop "is somewhat amusing, considering the bill was introduced six months ago on 9 December 2003." In a useful and well-informed post which I would recommend reading, he goes through what the new law would have meant, and what the present law actually says:
The current law actually states it is not a crime, if the boy is younger than the girl. So currently a 14 year old boy can sleep legally with a 15 year old girl. What is illegal is if the boy is 15 years and 2 months and she is 15 years and 1 month.
The proposed law extends the defence of being younger than the other party, to give a range of being no more than two years older. This is incidentally the law IIRC in Germany. So this means it is still illegal for an 18 year old to sleep with a 15 year old, but not for a 16 year old to sleep with a 15 year old.
Personally I think the change is generally sensible, as criminalising someone for being a day older than their under 16 year old partner is stupid, but I would have it apply to 14 and 15 year olds only. So any sex with someone under 14 is illegal, but it is not illegal for a 16 year old and a 15 year old to have sex.
No Right Turn wondered "what is Tony Ryall on?":
Contrary to his assertions, the government is not planning "to legalise older men having sex with 12-16-year olds, if they can prove they took reasonable steps to ascertain the age of the young person and believed them to be 16-years-old or over." That's already legal. In fact, as David Farrar points out, the government is significantly tightening legislation in this area. There is already a defence of "reasonable belief" that someone was over 16; now you have to actually have asked ...
He's referring to this press release issued yesterday by Ryall:
"However, parents and grandparents will still be alarmed by Mr Goff's proposal to legalise older men having sex with 12-16-year olds, if they can prove they took reasonable steps to ascertain the age of the young person and believed them to be 16-years-old or over."
Mr Ryall says Mr Goff should ditch this dangerous proposal as well. The Government should be focused on looking after our children, not making them more vulnerable.
No mystery, I'm afraid. Ryall knows very well that what he's saying is untrue - and scurrilously so. But having successfully nailed the government (in an area where it is currently notably vulnerable to being nailed) by bringing the story to the Star Times, he just looked to milk it a little bit more. Perhaps some karmic justice awaits him further down the line, but for the time being he'll get away with it. Labour simply couldn't countenance a scrap like this taking over Budget week. You could just see the resignation on Phil Goff's face when he announced that the age-gap clause would be removed.
Goff will know, as a couple of readers have pointed out, that the removal of the clause to some extent makes an ass of this important piece of legislation. Youth law advocate Anthony Trenwith had this to say:
Congrats for finally picking up the ball of common sense and running with it! I've been fuming at the stupidity of journos in NZ since reading the SST's leader. What you've done is actually give a rational statement of the law as it was in the beginning, has been and (now) never shall be!
As far as prosecuting under-age sex goes, as one who works in criminal defence law, I can tell you that this would be next to impossible. Both partners would have to be jointly charged and tried together. Here's the kicker - neither would give evidence against the other as it would incriminate themselves! Presuming no one else was present throughout (yeah, right!) then any hope of prosecution goes out the window! No evidence, no witnesses, no case!
Philip Wilkie considered Stuff's follow-up poll on the new law and declared himself "dismayed at the inability of 88% of New Zealanders to think past the end of their hypocritical noses":
The proposed Ammendment Bill has several fundamental changes; one it treats all sexual offences in gender neutral terms, and two it removes time limits on prosecutions.
OK, so my 14 year old daughter has sex with a 13 year old classmate, well the law makes them BOTH liable for a High Court criminal prosection with a maximum sentence in the order of 10 years. It doesn't even have to be penetrative sex, just about anything remotely sexual can be trumped up as "sexual connection" or "lewd conduct". OK so they probably won't go to prison, but it will cost you $30 - 100,000 to defend it in the High Court.
Worse still, there are no time limits. Most of us have under the proposed laws have committed a serious criminal sexual offence at some time in our lives before we were 16; are now all these cases are open to retrospective prosecution? Are we to anticipate queues of honest citizens lining up at their nearest Police Station demanding to be prosecuted to the fullest extent of the law, because 40 years ago they had a session of "doctor" with the next door kids? I guess not, and yet 88% of them vote for a law that mandates this.
And leaving it to Police discretion is not an answer. Increasingly they are under pressure to "kick for touch" and send all sexual offence allegations to the Courts, so why should we expect them to make a distinction for consenting underage partners? Police Constables are trained to apply laws in a systematic and "tick the boxes" manner. Making fine judgements about consent, morality and compassion is not their core business.
Let me put it this way ... if as a male adult I consensually fondled the breasts of a 14 year old girl, I can rightly anticipate a prison sentence; but if the same girl touches the breasts of another girl her age, the proposed laws expose both her and the other party to the same penalty. If it was your daughter how would you feel if she faced charges in this situation? A question that the Tony Ryalls and Peter Dunnes of this world would never give a straight answer to.
Aaron Oxley pointed out a timely story by George Monbiot which compares the outcomes in terms of sexual health and abortion rates in "permissive" countries such as Sweden and Denmark with those in nations, like the US, that consider themselves more morally upright.
Rob Stowell said this:
Thoroughly agree with your outrage about this "scandal" which has quickly overturned a well-conceived piece of legislation. I wanted to kick Linda Clark on the radio this morning for so wilfully misrepresenting the facts but had to swear at the radio instead.
It did lead me to think about what laws mean. I also think it's stupid to make something criminal if you don't intend to do anything about it: marijauna is an obvious case, but there are others. The law should (I think) draw a line in the sand that we are mostly prepared to toe. If we have the law but don't apply sanctions - or think it desirable to - what are we saying? I'd argue we're saying, in effect, the law is an ass - and undermining its effectiveness overall as a means of publicly drawing the line. Others are arguing it "sends a message", and the message will be that teen sex is okay. (As if teenagers don't get this message- it's like legislating against earthquakes ...)
But what is the message? That it's illegal to do it- but don't worry, you won't get prosecuted? This is classic "bad-parenting" - say it's bad, (but good for us grown-ups) but when it happens, don't apply the sanctions (which no one is arguing we should apply - and no one seems to quite notice that they are being INCREASED in this legislation, which is precisely why the legal dept want it clear that they won't be applied).
Anyway, I know like and admire Cate Brett, but of all the controversial front pages in her short reign so far (and there have sure been a few ...) this was the most misconceived and damaging.
Nick Melchior said this:
Thanks for some sanity in the debate. As someone who lost his virginity at age 15, too young in my reckoning now, I would have been appalled if someone had tried to prosecute my 16 year-old partner, or in fact me, for it. The SST article was some of the worst journalism NZ has produced, and the standard isn't that high to begin with.
Jonathan Bowen said this:
I'm sorry, but I had to forward a copy of today's blog and send it to the SST. Having on a number of occasions experienced fictional reporting first hand, it's tiresome at times to absorb a report only to wonder at the end what actually is the situation being reported on.
Conor Roberts saw a trend:
I read your latest post and it brought home to me a sense that the mainstream news media is across the board out to hammer the Labour government in any way, shape or form.
It is getting scary - we are seeing any policy suggestion coming from the government as some kind of attack on NZ. Stories that paint the government in a good light (such as the record 4.3% unemployment rate) are largely glossed over. Lets hope for more balance and indeed truth in news reporting in the run up to the next election.
There were a few too many other correspondents to quote here, but Deborah Russell was the only one to take issue with the view I expressed yesterday:
Of course morality and the law are not the same thing - it's a trivial point that gets covered in any first year law or moral philosophy (ethics) paper. But the law does serve an important signalling function. Even in a jolly nice society, where people are just plain nice to each other, we would still want to have laws, in part to co-ordinate our activities, but also to signal to people what being jolly nice entails. So telling people that they won't be prosecuted for having sex at a certain age sends an important signal about what we think their behaviour should be.
Personally, I'm not interested in telling people what their sexual behaviour should be - I but right into the 'consenting adults' criterion. And there's the rub. Twelve year old children are not consenting adults. I don't know when people become adults, and it's highly likely to be a gradual and variable process anyway. Some people will be adults at age 15, others at age 18, others not until they are 25. None of us want to conduct in-depth interviews with every single teenager to determine whether or not they are adults, so we deem people to be adults at a certain age (16 for sex, 18 for most other things) …
As you point out, kids will do it anyway, so what's the point of prosecuting them? All that happens at the moment is that sometimes, kids get prosecuted, and sometimes they don't. So the law is applied very capriciously. I don't think the 'people do it anyway' argument is very good - there are lots of things that people do anyway that we still criminalise, like drink driving, and speeding, and whatever. The capriciousness in the application of the lawis worrying. It's one of the reasons that I am glad about the recent police crackdown on speeding - at least they are now being consistent, and driving a nice car and speaking with the right accent won't get you off anymore. I don't know what the solution is here, except that like the drink driving and speeding cases, it probably lies in serious funding being put into sex education rather than just random prosecution.
Of course, this whole thing is about adding a defence, not lowering the age of consent. But I think that all that will happen is that a 15 year old will add pressure to a 13 year old, saying, "Well, it's not illegal, so let's do it." As it turns out, we have a bit of experience with how defence clauses work. The notorious Section 59 gives adults a defence when it comes to disciplining children. This section is meant to work by giving your average parent a defence for hitting their children as punishment. But, it has been used, successfully, to defend people who have beaten their children with blocks of wood and hosepipes and left bruises that can still be seen three weeks alter. That's the sort of assault on an adult that would see the attacker convicted and given a serious sentence. Parents, however, can use the Section 59 defence ...
I think that the 'she was only 2 years younger than me' defence won't work in the way it is supposed to. It won't fix the problem of capricious enforcement of the law. All it will do is send a very strong signal that it is okay to have sex at a very young age. And that will result in even more pressure for children to have sex when they don't want to.
I understand this view. The problem is that there's just no evidence for it - the contrary, in fact. The laudable erasure of gender anomalies in the Bill actually makes the law an ass without the age-gap defence. And the comparison with Section 59 (which, incidentally, is largely supported by the same people who were up in arms about the age-gap clause) seems arbitrary and inappropriate to me.
Anyway, teenagers are all over the news, it seems, with TVNZ's poll last night revealing that 71% of New Zealanders want the drinking age put back up to 20. I'm in two minds about this. New figures suggest that kids are now drinking more, sooner. But I go out in Auckland and see 18-20 year-olds enjoying themselves moderately - on licensed premises.
It seems that the binge-drinking problems relate almost entirely to alcohol consumed away from licensed premises. Which brings me back to a question no one seemed to be able to answer for me at the time the age was lowered: why can't there be an age differential for the sale of liquor to be consumed on licensed premises - where host responsibility is mandated in law - and off?