Image: The Spinoff
Image: The Spinoff

SocietySeptember 12, 2023

Where did the age of consent come from, and how does it work today?

Image: The Spinoff
Image: The Spinoff

Today, the age of consent is seen as a way of protecting young people from sexual predators, and of setting an age at which young people are able to make informed choices about sexual activity. But it hasn’t always been this way.

‘If you go back far enough,” says Anna High, associate professor at Otago’s faculty of law, “rape was seen as a crime of property – a crime against the father of an unmarried daughter, or a crime against the husband if she was married.”

In the Roman concept of the pater familias, the oldest male (probably the father) presided over the household, which was considered an economic and juridical unit. “So the father essentially owned his wife, his children, the slaves and all sorts of servants who lived on the estate,” says Carrie Leonetti, associate professor of law at the University of Auckland. “His primary interest in his daughters would be to marry them off strategically, essentially as business deals. Her only value was in marriage and therefore her chastity.” It didn’t matter for sons, because they were in line to inherit the estate, and if they had sex, it “didn’t change their value as husbands”.

These ideas trickled into medieval England, where the age of consent was set at 12 for girls, likely because that’s when they became their husband’s property rather than their father’s (in other words, when they got married). When our colonial state inherited English criminal law in 1840, it included the age of consent. By that time, an age had also been set for boys – 14. 

Soon after, in the 1880s, moral concerns in England around young girls engaging in prostitution led to raising the age to 16. It wasn’t easy. In her research, Leonetti has come across the UK parliament’s archives of the floor debates, which show a bunch of men worrying that child prostitutes (today we would probably consider them to be victims of trafficking) would use the law to extort and blackmail men. Around the same time, they debated the criminalisation of incest, which centred around whether daughters would use the law to blackmail their fathers. “It’s just fascinating, because the sympathy is with the sex offender,” says Leonetti. 

“I think you could draw a straight line from that to today,” she says, noting that the most pervasive myth in cases of sexual abuse against children is that the children are lying. “It drives me crazy.” In courtrooms, “that’s the go-to defence to this day, that the kid is making it up.” In reality the majority of sexual abuse is never disclosed, and even when it is, prosecution is rare. “The idea that our courts are somehow full of false sexual abuse allegations…” Leonetti shakes her head, “they are missing most of the real ones.”

Photo of Carrie Leonetti
Carrie Leonetti, associate professor of law at the University of Auckland. (Photo: William Chea)

In 1886, Christian groups lobbied the New Zealand government to raise the age of consent to at least match Britain’s at 16. They were joined by feminists in the early 1890s, who vehemently criticised men’s sexual use and abuse of girls and young women. They argued that girls under 16 lacked the maturity to consent to sexual activity, that they were sexually passive and essentially children in need of protection. In 1894 they delivered 18 petitions to the government. Despite this pressure, clumsy and complicated legislation reform and reluctant legislative councillors, who rejected a number of bills, stalled the change. Politicians were plagued by the question of when do girls cease to be children in need of state protection and become responsible for their own sexual behaviour? In 1896, a reintroduced bill to change the age of consent to 16 was passed. That’s where it has stayed.

The age of consent tries to draw a line where sexual activity is appropriate for young people, and tries to balance protection and sexual agency. Historically, it’s a gendered law, which in some scenarios could be seen as taking agency from young women, but that isn’t to say that they don’t need protection from older predatory behaviour. “How do we figure out the age at which it’s probably OK for young people to start having sex? That’s a really fraught, complex question,” says Anna High. It depends on the individual young person and the person they are having sex with. There is no single age which suits everyone, but laws require specific boundaries, so legislators set an age at which young people are generally deemed sufficiently mature enough to make safe and meaningfully consensual decisions. “It’s kind of a legal fiction, because not all ages are going to fit that model, but it’s the best that the law can do,” says High.

In Dear Jane, award-winning writer and podcast producer Noelle McCarthy and The Spinoff Podcast Network present a powerful series that explores one woman’s experience of what she believed as a teenager to be a loving relationship in an Auckland church community during the 1990s. It was a sexual relationship with a man who was not only ten years her senior, but also her youth group leader.

Today, the first section under “sexual crimes” in our Crimes Act states: “There is no presumption of law that a person is incapable of sexual connection because of his or her age.” 

It’s not until Section 131AB where age becomes a factor, for grooming people under 16. Section 132 prohibits sexual connection with children under 12, and Section 134, sexual connection with young people under 16 (statutory rape). Separating what’s commonly thought of as rape from statutory rape is a traditional and common structure in the world’s Anglo-American penal codes. What’s unusual in New Zealand is that our sentencing for statutory rape is low. “We do not historically treat these as serious crimes,” says Leonetti.

In New Zealand, sexual conduct with a child under 12 carries a maximum sentence of 12 years, and sexual conduct with a young person under 16 carries a maximum sentence of 10 years – half of the 20 years that could be served for rape. In England, raping a child under 13 has a maximum sentence of life imprisonment. In the US, penalties vary from state to state, from death to one year. Commonly, the maximum sentence for statutory rape is 20 years’ imprisonment. 

“I don’t think it accords with people’s moral intuitions,” says Leonetti of the difference between statutory rape and rape penalties. She thinks that average New Zealanders would want the sentencing for statutory rape to be at least equal to that of rape. 

The gap between penalties means that often offenders stand trial for both charges. What then happens is the rape allegation is defended. Under that section of the law (128), age does not protect victims. The defendant can argue that the child or young person consented or that they reasonably believed there was consent. Victims are opened up to “very traumatic” and “really problematic” cross examinations, says High. The lines of questioning can include, “Did you start it? Were you coming on to him?” It means “a grown man can legitimately attempt to argue in court ‘this 11-year-old was coming on to me,’” she says, “which is just not what we want our system to be like.”

And sometimes, they win. “We have cases in New Zealand where a much older person, including in a position of guardianship and authority over this young teenager, has successfully argued, ‘Well, I thought she was consenting.’ So they’ve been able to avoid conviction under Section 128,” says High, though they would still be convicted under section 132 or 134.

This is where the fictionality of the law comes into play. Technically, a 16-year-old having sex with their 15-year-old partner is just as guilty as that older guardian figure under section 134, and two 15-year-olds having sex are both simultaneously guilty and victims. “When there’s a big age gap, there is just inherently a power imbalance,” says High. “The essential problem is there’s not always going to be a clear dividing line between sexual activity and sexual abuse, between persuasion and coercion, between consent and non consent, between a child who is still in childhood and a young person coming of age – those are not bright-line boundaries. That means regulating sexual behaviour with and among young people is really complicated because the law needs to use bright lines.”

Romeo and Juliet laws, which are used in France, and some US states, address this problem by removing legal liability when the people involved are close in age. In France, the maximum age gap is five years, while in the states it varies from two to 10.

High says that even though it’s not written into the law, prosecutorial discretion will usually take into account the different situations. “If we had, say, a 17-year-old having factually consensual sex with her boyfriend, who’s 15… we might not have any concerns about power imbalances or coercion, depending on the nature of that relationship and interaction. Whereas if we had a 53-year-old man having sex with a 15-year-old girl, and saying, yes, she actually consented, we might have different feelings about that. It might be that one gets prosecuted and one doesn’t based on prosecutorial discretion.” Young people having sex with each other and then being convicted is not something Leonetti would “lose sleep over”. She has never seen it in New Zealand courts.

Layba Zubair delivers petition to Parliament
Layba Zubair delivers her consent law reform petition to parliament in September 2022. (Photo: Consent Law Reform, supplied)

Following troubling headlines about a case involving a 12-year-old girl last year, a petition signed by 12,178 people was delivered to parliament by Layba Zubair of Consent Law Reform. Sexual violence laws are set to change in order to better protect victims. The Victims of Sexual Violence (Strengthening Legal Protections) Legislation Bill takes the question of consent off the table if the victim is under 12 – and increases the penalty for sexual connection with a child to a maximum sentence of 20 years. This will protect children under 12, but there are no changes for young people under 16. The bill passed its first reading in parliament with cross-party support on 29 August. It has been referred to the Justice Committee.

“I’m absolutely in favour of the reform,” says High. “It makes it really clear that we’re treating any sex with someone under the age of 12 as equivalently abhorrent and subject to the same penalties as non-consensual sex with any person.”

If the reform goes ahead, it will be another step in changing the law to better protect people. “If you look at the history of rape law, over time we’ve stopped looking at rape as a concern about men’s honour and the father’s proprietary interests, and we’ve come to understand that it’s a violation of individual autonomy and dignity,” says High. “Of course, there is still widespread disregard for women’s autonomy and sexual dignity in practice, and there are many problems with reporting, enforcement, and prosecution in practice, but I think it’s fair to say that we’re at least tracking in the right direction.”

Follow Dear Jane on Spotify, Apple Podcasts and anywhere else you listen to podcasts.

Keep going!