Posts by Keir Leslie
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Observation could be a reasonable step, I guess? The Select Committee said
It is expected that the wider the age gap and maturity difference between an accused person and the young person, in any particular case, the more onerous it will be for an older person to establish this defence. That is, what will be considered reasonable steps for an older person to take, and consequently their reasonable belief, will likely be more stringent than a person closer in age to the young person charged with the same offence.
So I suspect the courts would interpret leniently in non-predatory close age ranges, and harsher elsewhere.
[Edit: also, "things said by crown in court" isn't always the same as the law: that statement might be totally false.)
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You’d think so, but also you’d imagine that it’s pretty rough to criminalise someone in such circumstances…
[Bingo: in Grace v R [2011] NZCA 950, the Crown admitted: "it is not invariably necessary to make a direct inquiry of the young person or to seek independent verification" (at 17). Admittedly not much, but.)
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Up Front: It's Complicated, in reply to BenWilson,
consent IS possible
Yeah, I agree. That’s why I think “age of consent” is misleading, because the “age of consent” is generally meant as the age below which you can’t consent. But you clearly can consent if you’re under 16. Your consent just isn’t enough to beat s134, although it is enough to beat a rape charge. It’s an area of law which is much less consent-focussed than people understand it to be, and so I’d prefer not to use consent-language.
(Emma: I don’t actually know what “reasonable steps” are, and it may be he’d get off there. It’s still a quite problematic law: strict liability offences always are.)
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Up Front: It's Complicated, in reply to BenWilson,
The Crimes Act is reasonably readable on this front.
To be quite rough, there’s a group of crimes here. One, sexual violation, is what we’d commonly call rape. It’s defined, basically, as having sex with someone who doesn’t freely, actively and informedly consent, and it carries a 20 year maximum, and a presumption of imprisonment. Then there’s the s132 (sexual conduct with child under 12) offence, which makes it illegal, under any circumstances, and no matter what you thought you were doing, to have sex with anyone under 12. That’s a 14 year maximum. There’s also the s134 (sex with an under-16 year old) offence, which makes it illegal to have sex with someone under 16 unless you meet the s134A criteria.
If you look at s134A, you see that the law has a concept of “consent” for those under 16. It just doesn’t think that’s hugely important. Now, you could look at it as an evidentiary convention. But I don’t think that’s right. (Because if an under-16 can’t consent, that’s just sexual violation.) I think there’s something else going on, and “age of consent” terminology is confusing, because it supposes the law is trying to discriminate based primarily on capacity to consent, which I don't think it is.
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I wish people would stop using the term “age of consent” here. In NZ, the “age of consent” is, if anything, 12 – that’s the age below which it is impossible to use a partner’s consent in a defence. The rules around sex with under-16 year olds are not framed in terms of a 15-year old’s incapacity to give consent: if a 15 y-o couldn’t consent, then all case of sex with a 15 y-o would simply be rape. (As Graeme pointed out above.) Mental capacity (as such) is a bit of a red herring.
From a positivist point of view, consent doesn’t appear to be the issue here. On the other hand, capacity for consent certainly is for an s 138 (sexual exploitation of person with significant impairment) offence.
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Up Front: It's Complicated, in reply to Lucy Stewart,
Yes: tactically, a charge of sexual conduct with young person under 16 is way way easier to prove. You don't even have to prove the defendant knew the victim was under 16: the defendant has to show they took reasonable steps + had reasonable grounds + consent.
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New Zealand doesn't have an "age of consent" at 16. There's no presumption that an under-16 year old can't consent. (If you took reasonable steps to discover age + had reasonable grounds to think the young person was over 16, and they consented, that's a defence to a charge of sexual conduct with a person under 16.) And if you rape an under-16, that's a different (more serious) crime, and presumably if the young person consented to sex, that would be a defence though haven't checked.
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I tend to trust the ACLU. Other than that, yeah.
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OnPoint: What Andrew Geddis Said, But…, in reply to Rich of Observationz,
Erm. Sort of --- see Whitlam.
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Hamish Keith does have a cheek running his mouth about the arts establishment in NZ given that he himself is a substantial chunk of it.
Also, as far as Labour’s arts policy goes, here’s the draft Platform, which has a chapter on NZ Identity etc. If you want to go have a look at that and feedback on it, I’m sure the Party (ahem) will take it seriously.