In England the defence of consent is available to any accused under the age of 23 years, but only on the first occasion on which he is charged with the offence.

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:

(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.

(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:

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.

(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.

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:

(2) The Children's Court

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:

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 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.

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:

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".

(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.

(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".

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:

(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:

(c) The Court Should Have Power to Make Orders Against the Parents of Offending or Delinquent Children: Suitable clauses in this connection submitted for the consideration of the Government are:

(d) When Any Child is Expelled From School Notification of the Fact Should Immediately be Given to the Child Welfare Division: The following draft clause expresses what the Committee has in mind:

(e) Whenever Any Child Has Been Found by the Court to Have Committed an Offence or to be a Delinquent Child or a Child Not Under Proper Control the Principal of the School Should be Informed: The suggested clause might read as follows:

(f) That the Statute Should be Completely Redrafted and the Child Welfare Division Reorganized on an Autonomous Basis: In this redrafting and reorganization special regard should be had to:

1. Sexual immorality among juveniles has become a world-wide problem of increasing importance, but the great majority of the young people of this Dominion are healthy-minded and well-behaved.

2. As sexual immorality is generally clandestine, is often not criminal, and even when criminal may not be detected, there are not any statistics from which it can be shown whether, or to what extent, it has increased.

3. During recent years the pattern of sexual misbehaviour has changed: it has spread to younger groups; girls have become more precocious; immorality has been organized; the mental attitude of some boys and girls towards misconduct has altered; and there is evidence that homosexuality may be increasing.

5. Objectionable publications ought to be banned by establishing a system for the registration of distributors of certain printed matter. Urgent action is necessary so that publications now banned in other countries will not be dumped into this Dominion.

6. The absence of regulations necessary to make the Film Censor's recommendations effective deprives parents of the protection which the Legislature intended for them.

7. The possibility that children may hear radio programmes unsuitable for them calls for firmness and discretion on the part of parents and more care by the Broadcasting Service in arranging and timing programmes. Serials and recordings giving undue emphasis to crime or sex are not desirable, nor is the frequent repetition of recordings that are capable of misinterpretation, particularly in times like the present.

8. Advertisers should realize that the increasing emphasis on sex attraction is objectionable to some and, possibly, harmful to others.

9. Although television may not be introduced into New Zealand for some time, plans to cope with its effects on children should be made well in advance of its introduction.

10. There should be a closer bond between school and home. The system of visiting teachers should be expanded and as much liaison as possible established between them and public health nurses.

11. The evidence that the propinquity of boys and girls at co-educational schools contributed to sexual delinquency was not convincing.

12. The value of insisting upon all children remaining at school till they are 15 years of age should be further investigated. When the underlying cause for an application for exemption is misconduct, the exemption should only be granted subject to supervision by a Child Welfare Officer.

13. Whenever a pupil under the care or supervision of the Child Welfare Division is enrolled at a school the principal should be informed of any matters pertaining to the pupil which are within the knowledge of that Division. He should also be consulted as to any recommendation which it is proposed to make to the Court in respect of any of his pupils.

14. The school is not the proper place for fully instructing children about sex, although it may be a convenient place in which mothers and daughters together, fathers and sons together, or parents together, may listen to addresses or see appropriate films. This would help to break down some of the barriers of self-consciousness.

16. The work of all organizations which aim at building character is warmly commended as they help to prevent children from becoming delinquent; but facilities for recreation and entertainment will not cure juvenile delinquency.

17. Liquor and gambling are symptomatic of some homes where there is child neglect. The Committee deprecates the growing practice of parents conniving at the consumption of liquor at young people's parties.

18. Tension in the household, separation of the parents, lack of training for parenthood, the absence of a parental sense of responsibility or poor discipline all help to create an unsatisfactory home environment; the child of such a home often feels unwanted or unloved. This unsatisfactory environment or feeling of being unloved is productive of much delinquency.

19. Nearly one-third of the delinquent children whose cases were considered came from homes where the mothers, possibly out of necessity, went out to work. Fathers themselves are also to blame when they neglect the opportunities available in the evenings or at the weekends to interest themselves in the welfare of their children.

20. The high wages paid to adolescents on leaving school are an important contributing factor especially when those youths have not been trained in the virtues of thrift and self-reliance.

21. In many of the cases investigated by the police the children have either been ignorant of the functions of sex or have too advanced a knowledge of its physical aspects. When, how, and by whom the information should be given is very important.

22. The present state of morals in the community has indicated the value of a religious faith, and of family religion. Encouragement should be given to the work of the New Zealand Council of Christian Education.

23. There has been a decline in certain aspects of family life because of a failure to appreciate the worth of religious and moral sanctions.

24. During the past forty years new concepts have entered into society. These concepts resulted from the unsettlement following two world wars. The changes were the increased use of contraceptives, the broadening of the divorce laws, an increase in pre-marital sexual relations, and the spread of new psychological ideas.

25. The Committee is unanimously of the opinion that adolescents should not buy or be in possession of contraceptives. There is, however, some difference of opinion as to how this decision could be made effective.

27. The Child Welfare Act should be broadened to provide for the doing of preventive work. At present it provides only for the correction of children who have committed offences or who are delinquents. There are also grave weaknesses in this statute and in the whole procedure for dealing with offending and delinquent children.

(1) Proposals for Legislation

(a) The definition of "obscene" and "indecent" in the statute law relating to printed and published matter should be enlarged so as to cover all productions which are harmful in that they place undue emphasis on sex, crime, or horror.

(b) All distributors of books, magazines, and periodical (other than newspapers and educational or scientific publications) should be required to register their names and the names of their various publications. If they offend against the proposed law regarding objectionable publications, their licences to produce or distribute should be cancelled.

(c) A new offence should be created whereunder boys and girls who are guilty of indecent conduct with one another should both be liable to be charged as delinquents in the Children's Court and the practice of recording the names of boys in the Police Gazette as having been summarily dealt with should cease.

(d) In all cases where children are summoned to Court their parents (if available) should be required to attend with them.

(e) The Court should have the power to require the parent or guardian of an offending or delinquent child to pay the fine or costs and to give security for the future good behaviour of the child unless the Court is satisfied that the conduct of the parent or guardian has not conduced to the child's wrong doing.

(g) Effect should be given to the recommendations regarding enrolment or expulsion of children as set out in Section XVI (5) (d) and (e) of this report.

(h) The Child Welfare Act should be completely recast in such a way as to remove the weaknesses indicated in this report and to suit modern needs. "Child welfare" should be given an autonomous status under the Minister of Social Welfare.

(2) Proposals for Administrative Action

The following outlines of administrative action are not dependent upon the amending of any Acts of Parliament such as were recommended above:

(a) Police Department

The training and duties of policewomen should be considered with a view to deciding the best method of dealing with girls involved in sexual offences.

(b) Department of Internal Affairs (Films)

To facilitate the practical working of film censorship steps should be taken to gazette the outstanding regulations empowered under the relevant Acts of 1934 and 1953.

(c) Broadcasting Service

It is suggested:

(d) Censoring Authorities

Any Departments concerned with censorship should maintain a liaison to produce as far as possible a uniform interpretation of public opinion and taste.

(e) Department of Education

(i) The Department of Education should discuss with the Department of Health the respective duties of public health nurses and visiting teachers to prevent overlapping and to ensure the best possible employment of these officers.

(iii) The Department should consider what type of officer is best suited to help with problem pupils in post-primary schools.

(iv) The Department should request that residences be set aside for some teachers in housing settlements.

(v) In areas where there is a lack of facilities for recreation and entertainment the Department should consider the possibility of making school grounds and buildings available to responsible organizations.

(f) Research into Juvenile Delinquency

A long-term project for the investigation of juvenile delinquency in all aspects should be undertaken.

(3) Parental Example

New laws, new regulations, and the prospect of stricter administration may help to allay the well-founded fears of many parents for the future of their children. It would, however, be a pity if parents were thereby led into any relaxation of their own efforts. Wise parenthood implies firm control and continual interest in the doings of sons and daughters. But what is most needed is that all people should, by right living and by the regularity of their own conduct, afford the best example for the conduct of the rising generation.

As a supplement to this report the Committee desires to place on record its thanks to all those who have assisted it in discharging its responsibilities.

The many organizations and witnesses who have expressed their views have been most helpful, and the Committee is also obliged to all those who have sent letters, books, and papers for consideration. The many press clippings of editorials, news articles, and letters to editors have enabled the Committee to obtain an understanding of public sentiment on various matters.

The heads of Government Departments have answered every inquiry for information which has been submitted to them.

The Public Service Commission has placed facilities at the disposal of the Committee and has released stenographers and typists from their ordinary duties to enable this report to be presented on the date fixed by the Committee early in its deliberations.

In particular, the Committee expresses its great appreciation of the manner in which Mr L.J. Greenberg has performed the secretarial duties. He has dealt with correspondence, and has shown a splendid sense of timing in arranging for the appearance of witnesses.