Hard cases make bad law: Why we shouldn’t rush to lower the age of consent

There are calls for New Zealand’s age of consent to be lowered. Madeleine Holden argues impulsive law-making is a bad idea.

Debate about the age of consent in New Zealand has been reignited after five young men were recently discharged without conviction for having sex with underage girls. The accused in the Opotiki case were five 17-18 year olds who had sex with girls aged 14 and 15. All were first time offenders and faced one charge each (except for one of the men, who faced two charges), and three of the incidents involved sexual activity between individuals who had previously been in relationships together. Despite the young men receiving the most lenient possible sentence in the circumstances and avoiding convictions, the case has aroused anger that the boys were charged in the first place, and prompted calls for the age of consent to be revisited.

New Zealand law prohibits sexual conduct with anyone under the age of 16. High-profile violations such as the Opotiki case drag the fact of underage sex to the surface, and many people don’t think that youth should be criminalised for their behaviour; proposing that the age of consent be lowered instead. Of course, age of consent laws don’t simply prohibit young people from having sex with fellow teenagers, they protect them from much older adults, too. Lowering the age of consent from 16 to 13, for example, would mean that adults aged 23, 33, 43 and older could have sex with teens with legal impunity. In other words, we’d risk throwing the baby out with the bathwater and exposing vulnerable teens to adult predation.

To get around these objections, some commentators have proposed close-in-age exemptions like those used in similar jurisdictions such as Canada. In 2004, a bill containing close-in-age exemption was introduced in New Zealand that would have permitted young people between 12 and 16 to have sex with each other so long as there was an age difference of no more than two years between them. The proposal was widely disparaged and eventually abandoned. Close-in-age exemptions need to be carefully drafted to avoid being so permissive as to be meaningless: for example, the age of consent in the US state of Delaware is 18, but 16 and 17 year olds are permitted to engage in sexual intercourse so long as the older partner is younger than 30. An exemption that allows 29 year olds to sleep with 16 year olds is potentially not very reassuring, and the public tends to be dubious of laws that appear to condone the early onset of sexual activity.

Laws, by their very nature, draw deep lines in the sand which inevitably gloss over the messiness and nuance of real life situations. That’s why prosecutorial and judicial discretion is factored into our legal system: we allow police and judges some leeway to treat exceptional cases with the nuance they deserve.  The Opotiki case is a perfect example: while the young men involved were technically guilty of an offence under the Crimes Act and plead guilty accordingly, the judge discharged them without conviction to reflect the relatively low levels of moral wrongdoing and harm caused in their individual situations. It’s difficult, then, to see why the Opotiki case should prompt a law change.  

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Some people have argued that the police shouldn’t have prosecuted the young men in the first place, and indeed the prosecution seems to have been overzealous; spearheaded by police and teachers rather than the girls involved. However, altering our legislation to atone for a prosecutorial misstep is, at best, ill-advised. There’s an old law school adage that “hard cases make bad law”, and in a country with a small population like New Zealand, perceived injustices tend to cause disproportionate shifts in legislation. A good example is the Clayton Weatherston case, which helped rid us of the partial defence of provocation, even though it was not successfully argued by defence counsel. Essentially, the public was so outraged that a monster like Weatherston could even run a provocation defence that there was mood enough for the government to swoop in and abolish it. Now the defence is available to no one, no matter how appropriate it may be in their circumstances. Whether or not you think the defence was desirable, it’s certainly troublesome for laws to be changed in a knee-jerk fashion because of aversions to particular defendants, rather than in more sober, dispassionate circumstances and following a full inquiry.

Knee-jerk reactions born of sympathy for particular defendants don’t tend to bring about sensible law changes, either. It’s certainly undesirable for young men like the Opotiki Five to be dragged through the criminal justice system for sleeping with consenting girls on the near side of the legality divide, even granted that they emerged without jail time or criminal records. However, tinkering with the age of consent is a disproportionate response to an outlying case and one that’s ill-fitted to solve the problem at hand. Introduce a close-in-age exemption like Canada’s, say, and watch police and judges struggle with whether to lock up a hypothetical 16-year-old who gives a solicited hand job to her 13-year-old boyfriend.

More disconcertingly, though, lowering the age of consent opens up vulnerable teens to predation by adults as a side effect. The sexual exploitation of young people is a far more prevalent problem than senseless “statutory rape” convictions, and a reduction in the age of consent would create a more permissive environment for adults who groom teens for sex, and weaker legal recourse for their victims. All defendants deserve robust protection against unjust convictions, but the law itself does not need to bend over backwards to accommodate exceptional defendants at the expense of young people’s safety.  

The age of consent is a thorny and emotive area of law. No one wants to see young people criminalised for consensual sexual activity, and underage sex is arguably a social issue better dealt with in schools and homes than courtrooms and jail cells. However, New Zealand does not need to take a laissez faire approach to our age of consent because of an (avoided) injustice in the Opotiki case. Sympathetic defendants are already afforded some protection by prosecutorial and judicial discretion, and weakening our legal protections for vulnerable teens is a high price to pay to prevent outlier cases.

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