Hard News by Russell Brown

Facts are out of fashion

The Crimes Amendment (No 2) Bill aims to clear up our updated and contradictory laws on sexual offending. It introduces a new offence of drug rape, markedly toughens the area around predatory behaviour by adults towards children and aims to remove a screaming anomaly whereby women could escape penalty for certain sexual offences - most notably having sex with an under-age boy - because the old law failed to recognise that such offences were even possible.

The Bill would also change a anomalous provision where it is illegal for any man to have sex with a "severely subnormal" woman or girl - effectively denying intellectually handicapped women any right to a legal sex life at all (which is, as, Sue Bradford pointed out in a submission on the bill, "a fairly fundamental abrogation of one of the most basic of human rights").

It also removes a shocking loophole whereby some offenders could escape prosecution if the age of the child could not be established; makes it no defence for an adult to argue that an child consented; and brings us into line with the United Nations Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. Penalties for trading in child pornography will be increased tenfold and convicted paedophiles will be supervised for up to 10 years after release.

While you're doing all that, it would be illogical not to look at whether we're also criminalising people we shouldn't - specifically, children. You'd ask: is the law being applied? (only if the police feel like it, which they almost always don't); is it effective? (no - or as the New South Wales Commission for Children and Young People put it, "There is no evidence that age of consent legislation influences young people when they make decisions about when to begin sexual activity. Most young people make their own decisions about when they are 'ready' to have sex, regardless of legislation")'; is it contradictory? (when under 16-year-olds already have access to contraceptive advice, yes); and it is counterproductive? (yes, if, as is easy to imagine, criminalisation deters young people from seeking or using contraception or advice).

In that light, the proposal is - or, now, probably, was - that it will be considered a defence if two people under 16 are having sex if they are older than 12 and the age difference is less than two years. The issue has become more acute with the proposed removal of gender anomalies - meaning that unless it is changed, two 14 year-olds have sex would both be criminally liable. It does not alter the "age of consent".

Miranda Sawyer dealt with the same issue in The Observer late last year, pointing out:

The stark truth is this. Though the age of consent can frighten teenagers into not seeking help when they need it, it doesn't stop them having sex. Cross-European comparisons of sexual health, carried out by Rox Kane and Kaye Wellings at the London School of Hygiene and Tropical Medicine, show that the age of consent has no bearing on the age of first sex. In Spain, the age of consent is set low, at 13: yet the average age of first sex for girls is 19 and for boys, 18. In Mali, the age of consent is 16, but most young people wait until a year later. In California, the age of consent is 18, but most have sex between 16 and 17. The age of consent in France, Sweden and Denmark is 15. In Italy and Canada, it is 14. In Japan, 13. In Chile, it's 12. In Portugal and the Netherlands, teenagers between 12 and 16 can have consensual sex with their peers (often called age-gap legislation), otherwise the age of consent is 16.

So let's turn to yesterday's Sunday Star Times front page lead story and play spot-the-difference.

Let's start with the headline: 'Sex at age 12 okay under law change'. Okay? No one is saying it's "okay" - the question is whether the kids who do it should be regarded as criminal offenders. We don't think it's "okay" for people under 16 to smoke cigarettes, but we don't prosecute them for doing so - we prosecute the adults who supply them with cigarettes.

Then the first, thrilling sentence: "Sex between children as young as 12 will be allowed under a shock law change, horrifying teen pregnancy experts, educators and counsellors". Or, actually, some of the above: the SST story did manage to squeeze in, three paragraphs from the end, a comment from Carol Shand of Doctors for Sexual Abuse care welcoming the proposed change as sensible.

The story continues:

The change would give New Zealand the dubious reputation of having the most liberal stance on sex in the developed world. Most western countries set the age of consent at 16, except France where it is 15.

Have the facts gone out of fashion or something? Alright: the age of consent here stays at 16: higher than that in Mexico and Chile (12), Japan and South Korea (13); Austria, Bulgaria, Germany, Hungary, Iceland and Liechtenstein (all 14) and the Czech Republic, Poland and Sweden (15), among others. The age is actually 18 in France.

Okay, let's go through this again: the proposed law would not change the age of consent in New Zealand - it would provide a defence where sexual activity takes place between two people who are between 12 and 16 who are less than two years apart in age.

This would see us follow, among others, Canada, Spain, the Netherlands and Malta, who make precisely the same distinction in their law (Italy makes the distinction with a lower age limit of 14, and France 15). All of those countries, by the way, have lower teen pregnancy rates than New Zealand - and the lowest in the developed world is Japan, where the age of consent is 13. The highest teen pregnancy rate in the developed world - by a country mile - is that in the US, where "abstinence only" sex education is pushed by the government.

The same woeful logic and poor attention to the facts continues in the paper's lead editorial, which twice states, incorrectly, that the age of consent is being lowered.

The author (presumably SST editor Cate Brett) opens with a dubious comparison with the lowering of the drinking age to 18. Access to alcohol is, and always been, regulated by restricting access to licensed premises. Underage people who attempt to obtain alcohol from such premises are liable to prosecution. We don't prosecute underagers for merely possessing alcohol, although the law takes a dim view of adults who supply it

to them, especially in an irresponsible manner. The law specifically says it is "okay" for 18 year-olds to enter licensed premises and drink there. The Crimes Amendment (No 2) Bill doesn't say that about underage sex - simply that it is not sensible to treat those doing it as criminals.

Elsewhere, the editorial makes a dazzling job of arguing against itself: it says there is "there is huge confusion among teenagers over exactly what consent involves. In some, it is plain that terror can lead to a point where a child's mind 'freezes' so she cannot respond rationally in a sexually charged situation." Uh-huh - and in what way precisely does that justify making the girl criminally liable for her actions?

But wait: there's more. People having underage sex, it says, should not "be regarded as criminals". But that is presently exactly what the law says.

The editorial quotes a survey revealing that 70% of teenagers have not had sex by the age of 17 - meaning, of course, that 30% have. The Ministry of Youth Development quotes other surveys suggesting that that 10-30% of young New Zealanders have had sexual intercourse by the time they reach 15 years of age, and about half have had intercourse by the time they are 16 or 17 years old. I don't think this is desirable, but the point is, are you seriously saying they should all, tens of thousands of them, be criminalised? That's what putting something in the criminal law means for goodness sake.

It comes down, I guess, to what you believe the role of law to be. I realise there is a constituency that regards the criminal law, especially in moral issues, not as something to be actioned, but as a kind of moral beacon. Martin Elliot, the Hamilton

headmaster quoted in the Star Times story as saying that Minister of Justice Phil Goff "deserves a lobotomy" and should never have been born, was on the radio this morning saying describing the amendment as "a subliminal message being sent out across the country".

I don't see it that way: call me a pedant, but I think that if you only have something in the criminal statutes if you actually believe it's desirable to prosecute that offence. That it is unwise to pass laws that you can't or won't enforce. And that you should put what you actually do want to do in your law - not leave it up to faceless and unaccountable prosecutors.

The SST's "shock" story isn't a work of investigation. It has been debated in select committee, from whence National's Tony Ryall brought it to the paper on a plate. But what arguably makes it more egregious is that it sits under a banner touting the story of "the blonde, The Player and the missing video". Apparently, a couple of female celebrities screwed one of the contestants in Sky 1's dodgy reality show The Player in view of cameras in the Player house, and a videotape exists.

Charlotte Dawson is happily denying she was involved, and breathing deep of the oxygen of publicity, as ever. It actually reads like a tawdry publicity stunt for the programme (and an effective one, given that the SST's sister paper, the Sunday News, led with it yesterday) - and apparently that makes it alright to trumpet a private porn video across the front page of a family newspaper.

For the government, it's a calamity: adding as it does, to the impression that it is set on dismantling all social standards. Goff is already saying he won't die in a ditch

over it, so we'll probably wind up with the status quo: an ineffective, contradictory and counterproductive law that nobody wants to prosecute. I sometimes despair of our ability to have a rational discussion in this country.

Anyway, I was a little dazed when I picked up the SST yesterday, having stayed up late enjoying the delightful spectacle of a cricket test beamed direct from Lords. Things were looking a little dodgy until the English tail collapsed, then took a turn for the dodgy again when Stephen Fleming was dismissed early in the Black Caps' second innings, then looked up when Brendon McCullum was drafted in at first drop - hurried by some short bowling, he played boldly and with composure. He must have been gutted to miss out on his debut test ton - at Lords! - by only four runs.

There was also, of course, the FA Cup final in which Millwall got the expected towelling from Man U (is Ronaldo the club's new gay icon now that Becks has gone?) and, earlier, in front of a rowdy and somewhat intoxicated gang at Dubwise Towers, the Super 12 final, which was surely one of the most bizarre games of rugby I've ever seen, with the Crusaders coughing the ball repeatedly to be down 33-0 after 20 minutes. How on earth did it end up so close?

Some good stuff in the Guardian and the Observer at the weekend, including an interesting encounter with Michael Moore in Cannes:

It is also, with a couple of exceptions, a triumph of editing. Indeed, Moore is arguably the most ideological and emotive editor since Sergei Eisenstein, the Soviet propagandist who developed a kind of didactic montage. Juxtaposing heroes and villains, he cuts between political comedy and tragic reality with intoxicating glee. There is

no information that is vitally new, nor are there any images that are more shocking than those from Abu Ghraib prison, but such is the cumulative force of the film, with its kinetic humour and insistent sentiment, that it is hard to come away from it without concluding a) that George W Bush is not fit to be president of a golf club let alone the world's most powerful nation and b) the war in Iraq was woefully misconceived. In the year of an election that could well prove close, it's the kind of film that could make a historic difference.

And an amusing collection of celebrity reminiscences of dear old Glastonbury Festival. Oh, I could tell you some stories about that ...