Chapter 6

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 assault 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 publishing 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 anticipated 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 Assault" on Boys_

It should also be made an offence punishable in the Children's Court for any girl to indecently assault 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 assault on a female. Under section 154 a male may be sentenced to ten years imprisonment for an indecent assault on a male (consent is not a a defence); but a female cannot be convicted of "indecent assault" 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 sexual 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 assault 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 institutions 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 guardianship of their children.

In 1874 a _Naval Training Schools Act_ was passed under which boys of 10 to 14 years of age, convicted by magistrates for reasons varying from vagrancy to bad associations, could be detained in naval training schools or on training ships and apprenticed to the sea.

In 1882 the _Industrial Schools Act_ was passed making better provision for the control, maintenance, education, and training of children under the apparent age of fifteen years who were found to be destitute, neglected, uncontrollable, living in a detrimental environment, or associating with persons of ill repute, and also for children who had committed offences against the law. Prior to the passing 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 institutions 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 attitude 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.

=(2) The Children's Court=

The idea of treating children who misbehaved as "delinquents" rather than as offenders against the law arose in Illinois in 1899. This experiment in social welfare was followed in other States of America, and the principle was introduced into New Zealand in 1925.

There has been, and still is, much misunderstanding concerning the procedure in these Children's Courts and the duties of Welfare Officers. As some recommendations about to be made by this Committee could not be properly appreciated without a knowledge of the procedure of that Court, and the way in which Welfare Officers perform their duties, it is desirable to make the following brief explanation:

Under the Act of 1925 it is the parent and _not_ the child, who is summoned to appear before the Children's Court. Section 13 (1) of the Act reads:

On the complaint of any constable or of any Child Welfare Officer that any child is a neglected, indigent, or delinquent child, or is not under proper control, or is living in an environment detrimental to its physical or moral well-being, any Justice may issue his summons addressed to any person having the custody of the child requiring him to appear before a Children's Court at a time to be named in the summons, _either with or without the child_, in order that the child may be dealt with in accordance with the provisions of this Act.

This new feature in our law did not displace the jurisdiction of Magistrates to deal with offences charged against young persons. Any doubt regarding the continuance of their powers was removed by the passing of the Child Welfare Amendment Act of 1927. All offences by children (except murder and manslaughter) are therefore still dealt with by a Magistrate, but in the Children's Court. In other words, it is not at present mandatory upon a parent to attend the Children's Court when a child is charged.

In practice it is frequently found that the parent comes to Court with a child who is charged with a breach of the law. This may be due to a family interest; it may be due to a direction by a Magistrate in some district that he will not deal with a child in the absence of the parent; it may be due to a misunderstanding of the law that, because a parent is summoned for having a delinquent child and may be required to bring the child with him, therefore when the child is summoned the parent must also attend.

This distinction between summoning the parent of a delinquent child to the Children's Court and bringing an offending child up on an offence can best be illustrated by what happened in the cases of carnal knowledge and indecent assault which were brought prominently to the notice of the public recently.

The offending boys were charged under those sections of the Crimes Act which prescribed maximum penalties of five or seven years imprisonment. In most cases convictions were recorded and the boys were admonished and discharged; in a few cases the charges were dismissed; in other cases the boys were committed to the care of the Superintendent or placed under the supervision of a Child Welfare Officer.

The girls, not having committed a breach of the Crimes Act or any other statute, could not be charged. Their parents were, in appropriate cases, summoned to Court upon the complaint that they had the custody of a "delinquent", or a child not under proper control.

That the above distinction is not merely a formal one is shown by the fact that an offending boy's name, and the decision of the Court regarding him, is always recorded in the _Police Gazette_. As the girl is not charged as an offender her name is not so recorded, even although (as shown in Section V (2) of this report) it may have been the misbehaviour of the girl which led the boy into the commission of the offence charged against him.

When a sophisticated girl entices a boy into the commission of an offence it is anomalous[7] that his name should be recorded in the _Police Gazette_ while the girl, who may be the real offender, is not charged and, even when the girl is committed to the care of the State, her offending is not recorded in the _Police Gazette_.

=(3) Corporal Punishment Abolished=

By the Statutes Amendment Act 1936 the power which formerly existed for the Court to order a whipping was abolished in so far as children are concerned. (The penalty of whipping was later abolished in all other cases by section 30 of the Crimes Amendment Act 1941.)

Representations have been made to this Committee that the abolition of corporal punishment as a deterrent may have led to an increase in sexual misbehaviour. It was pointed out that parents and school teachers may resort to physical chastisement where thought desirable, and it was suggested that a Magistrate should have power to order a whipping in suitable cases.

There is, however, a big difference between a parent or teacher himself punishing by the cane or strap soon after the offence, and a Magistrate ordering a beating to be inflicted by a complete stranger at a later date.

The Committee, therefore, does not recommend the restoration of corporal punishment. It merely notes the matter here as part of the history of the law relating to child welfare and to show that the representations on this point have been considered.

=(4) Defects in the Act and its Application=

Several matters have come to the notice of the Committee during its investigations which prompt it respectfully to point out to the Government that the present statutory provisions are out-moded and that the time has arrived for a complete redrafting of the statute to remove anomalies and to suit the needs of the times.

The terms of the order of reference scarcely require the Committee to make detailed recommendations. It should suffice to point out certain respects in which the Act itself might be improved and a new meaning given to "child welfare" which might go a long way towards reducing the amount of juvenile delinquency.

_(a) "Child Welfare" a Misnomer_

The preamble to the Act of 1925 describes the limited nature of its intention. It is:

An Act to make Better Provision with respect to the Maintenance, Care, and Control of Children who are specially under the Protection of the State; and to provide generally for the Protection and Training of Indigent, Neglected, or Delinquent Children.

In other words, the Act aimed at dealing with children _after they have become delinquents_. The new provisions for the welfare of children were grafted on to statutes which were designed for "neglected" and "criminal" children and for the establishment of "industrial schools". The Act did not purport to have regard for the welfare of children who _might_ become delinquent. It did not contain any provisions for the doing of preventive work. That being so, it is not surprising to find that it operates in different ways in different districts. The Committee was impressed by the preventive work done in some districts, although the officers doing this work were unable to point to any provisions in the Act which required them to do it. In these circumstances it is not possible to blame any Child Welfare Officer for failing to do preventive work which, under the statute, he is not obliged, and, indeed, has no authority to perform.

_(b) "Child Welfare" Merely a "Division"_

The Superintendent of Child Welfare is under the control of the Minister of Education and the Director of Education. But his duties do not appear to be integrated with those of the Education Department. The work of the Division appears to be more associated with the police and the Courts than the Education Department. In former times "industrial schools" conveniently came under the Education Department. But nowadays, when very many of the children committed to the care of the State are boarded out among foster-parents, the work of the Child Welfare Division is more closely associated with that of "Justice" than "Education".

The establishment, a few years ago, of a Ministry of Social Welfare, and the urgent need for more preventive work to be done, suggest the possibility of better administration if "Child Welfare" were given an independent status under the control of the Ministry for Social Welfare.

_(c) No Regulations Under the Act_

The Acts of 1925 and 1927 made provision for the gazetting of regulations. In particular, clause 45 of the 1925 Act contemplated regulations (_inter alia_) "regulating the appointment and prescribing the duties of Child Welfare Officers". After the lapse of twenty-nine years those duties have still not been defined and gazetted.

Furthermore, "Child Welfare Officers" are, under section 6, "officers of the Public Service". It is astounding, therefore, to hear that, year by year, "Honorary Child Welfare Officers" are appointed. The Committee has been informed that this year 179 people were appointed or reappointed as "honorary" officers, although there is no statutory authority for their appointment and their duties are not prescribed.

The Superintendent, in his evidence regarding honorary Welfare Officers stated: "Some of them have nominal office only. They have the name and that is all it amounts to". Such a position cannot be regarded as satisfactory. If any of them do perform useful functions (as to which no opinion can be here expressed) at least their duties should be defined. It is very easy (as happened a few weeks ago) for a person to pose as a Child Welfare Officer in such circumstances as pertain at present.

_(d) No Special Selection of Magistrates_

The Act contemplates (section 27 of 1925 and section 16 of 1927) that Magistrates shall be specially appointed to the Children's Court. In practice, however, all Magistrates have been given jurisdiction to sit in the Children's Court. As a result, the practice and procedure of the Court varies throughout the Dominion.

_(e) Separate Court Buildings Not Used_

The Act also contemplated that, when a Children's Court was established, it should not be held in an ordinary Court building. There is a provision that if a Court has not been established in any district the proceedings should be in a room other than the ordinary Court Room.

Serious complaints were made to the Committee that some children in the Hutt cases had to remain in the precincts of the Magistrate's Court at Lower Hutt awaiting an opportunity for the cases as regards them to be called. After the children and parents had waited about for a long time most of these cases were adjourned till another date, when again much the same sort of thing happened. One special purpose of the Children's Court was defeated by the fact that the Children's Court in that city was held in the ordinary Court building.

_(f) Should Proceedings be Open to the Press_

There may be reasons why a Children's Court should be open to the public even although the publication of names is prohibited. Under section 30 press reporters may not attend a sitting of the Children's Court unless "specially permitted or required by the Court to be present". It has often happened that a series of offences has created considerable apprehension in the public mind. On investigation they have been found to be due to the work of a gang or to the influence of some definite adverse factor in the community. The public has a right to know how child offenders have been dealt with. The Committee does not recommend any alteration in the provision prohibiting the publication of the name of any child or of any name or particulars likely to lead to identification. Subject to this, it is desirable that reporters should be allowed to attend. The Court should not be a completely secret chamber, the decisions of which have to be gathered by rumour or by the seeking of information through interviews away from the Court.

_(g) No Follow-up Procedure_

When children are placed "under supervision" there is not any procedure whereby reports are submitted to the Court or other body concerning their welfare or their doings. Again, when children are committed to the care of the State or are under supervision as a result of delinquency they may lawfully be transferred from one institution to another or may be boarded out in foster-homes without any intimation being made to their own parents. If a child is boarded out in another district it may be enrolled at a school without the principal being given such information as might enable him to be of assistance in its reclamation.

The Committee feels that there should be some person or body apart from the departmental officers to whom a child could turn for help if it is unhappy in its new surroundings or feels that it is not being properly treated.

=(5) Changes Proposed=

In the foregoing subsections it was sought to show how it came about that the statute itself is not a completely satisfactory one. Some of its provisions were adapted from earlier statutes which dealt with "neglected" and "criminal" children, and "industrial schools".

In the course of the history of the legislation the age of a "child" has been progressively raised from 14 to 15, to 16, to 17, and to 18 years. Many of those dealt with would scorn to be regarded as "children" in the outside world, but they are glad to have the advantages accruing from being dealt with in a Children's Court.

It is pleasing to know that some officers of the Division are concentrating upon preventive work, but just where, and how such work is being done, and the effect of it cannot be measured.

The Committee makes the following recommendations for amendments to the existing legislation:

_(a) The Creation of a New Offence_ under which children of either sex who are guilty of indecent behaviour may be charged as "delinquents" in lieu of the present procedure under which the boy must necessarily be charged and gazetted as a criminal while the girl is not charged at all.

A suitable amending clause would be:

Every child shall be deemed to be a delinquent child within the meaning of the Principal Act who--

(i) Being a male, carnally knows or attempts to carnally know any female child under the age of sixteen years;

(ii) Being a female, incites or encourages a male to carnally know her and permits or suffers him to do so;

(iii) Indecently assaults any other child.

It shall not be a defence to an information or complaint under this section that any child consented to the act.

_(b) The Attendance of Parents at a Children's Court Should be Made Compulsory:_ There is not at present any provision whereby the parents of a child who commits an offence must attend Court. The provision in section 13 (1) that the Justice may require the person having the custody of a "delinquent" child to attend, with or without the child, does not meet present needs.

The Committee therefore recommends the acceptance by the legislature of the following new provision: