It was widely reported on Aug. 3 that a man in New Zealand accused of sexually abusing two girls, aged eight and 12, relied on a New Zealand law in his defence stating that a person under 16 can consent to sexual intercourse.
The judge, Richard Earwaker, said in his (rather confusing) instructions to the jury that “Legally, a person under 16 cannot give consent for charges of indecent acts, therefore as a jury, all you need to decide is if the indecent acts took place.”
“But as for sexual intercourse, a person under 16 can give consent. You need to consider whether or not the consent was given based on the evidence you have. Remember an adult cannot give consent to a minor, in fact, nobody can give consent for somebody else.”
Although the accused was convicted, the instructions of the judge created an uproar.
It raises important questions over how “consent” can be identified in these circumstances, especially with such a wide age gap between the minor and abuser—Leiataua was 20 years older than his victim.
Further, the instructions disclose a major flaw in the New Zealand legal system.
Indeed, if a person under 16 cannot consent to “indecent acts,” how is it possible that they can give consent to sexual intercourse which—considering the age of the minor—surely is an “indecent act?” Certainly any unwanted sexual act should be characterised as an “indecent act,” including sexual penetration or touching.
Put bluntly, the law around consent in New Zealand is confusing and unclear at best.
New Zealand Crimes ActThe Crimes Act 1961 (New Zealand) has a part that deals with sexual crimes.
According to Section 127, “There is no presumption of law that a person is incapable of sexual connection because of his or her age.”
This section is confusing because it naturally leads to a presumption that any person, regardless of age, can give consent. Further, it also assumes that any person can physically engage in sexual activity. However, such an interpretation disregards the fact that, for example, infants are clearly incapable of such acts.
The simplest interpretation of Section 127 is that people, regardless of their age, can consent to sexual connections.
Minors Need to Be ProtectedKathryn Phillips, executive director of HELP Auckland, an organisation that provides support for sexual abuse survivors, called for the law to be amended urgently to ensure minors could not consent to a sexual relationship.
“Sexual behaviour between adults and children is always the responsibility of the adult, and children hold no blame for what is done to them,” she said. For her, the fact that children under 16 can legally consent to sexual conduct is troubling.
The New Zealand legislature could follow the example of Australia, where minors under the age of 16 cannot give consent to sexual relationships.
“Consent” thus requires a free and voluntary act, untainted by force, fear, or intimidation.
New Zealand’s current Justice Minister Kiri Allen is seeking advice on the issue of consent.
One can only hope that the advice she receives clearly and unequivocally recommended that minors under the age of 16 cannot give consent, either expressly or impliedly, to sexual intercourse. It is also hoped that there is the political will to implement such advice in a timely manner.