Commentary
On August 3, a New Zealand man accused of sexually abusing two girls aged 8 and 12 relied on New Zealand law that said anyone under the age of 16 can consent to sexual intercourse. His defense was widely reported.
Defendant Trisi Leiataua denied the prosecution’s allegations of rape, indecency, and sexual misconduct, alleging that the sexual relationship with the 12-year-old girl was consensual. He even claimed that her sexual relations could not be considered rape because she continued to pursue him even after he rejected her offer.
In his (somewhat confusing) instructions to jurors, Judge Richard Yearwaker said, “By law, no one under the age of 16 can consent to an indecent act charge, so jurors decide All that is required is whether or not lewd acts have taken place.”
“However, when it comes to sexual intercourse, consent can be given to anyone under the age of 16. You should consider whether consent has been given based on the evidence you have. Remember that you cannot give consent, in fact, no one can give consent to anyone else.”
Although the defendant was found guilty, the commotion broke out at the direction of the judge.
An important question arises as to how “consent” can be identified in this context. Especially since the age difference between minors and abusers is huge. Leia Taua was 20 years older than the victim.
Moreover, the directive reveals serious flaws in New Zealand’s legal system.
In fact, if a person under the age of 16 cannot consent to “lewdness”, is it possible that they can consent to sexual intercourse that is certainly “lewdness” given the minor’s age? Any unwanted sexual act, including touching, should be characterized as “obscene”.
Frankly, New Zealand’s consent laws are confusing and unclear at best.
Reconciling two conflicting directives from a judge requires the best efforts of those well versed in legal interpretation. So it’s certainly worth a little consideration in this area.
new zealand crime law
of Criminal Act 1961 (New Zealand) has a section dealing with sex crimes.
According to Section 127, “There is no legal presumption that a person cannot have sexual relations because of their age.”
This section is confusing because it naturally leads to the assumption that anyone can agree regardless of age. It also assumes that everyone can physically engage in sexual activity. But such an interpretation ignores the fact that infants, for example, are clearly incapable of such acts.
The simplest interpretation of Article 127 is that you can consent to sexual relations regardless of your age.
If this is the correct interpretation, this section should be repealed immediately so that users under the age of 16 cannot consent.
Minors should be protected
Kathryn Phillips, executive director of HELP Auckland, an organization that helps victims of sexual abuse, has called for urgent changes to the law to prevent minors from consenting to sexual relations. .
“Sexual activity between adults and children is always the responsibility of adults and children are not responsible for what is done to them,” she said. The fact that you can legally consent to
New Zealand’s parliament could follow Australia’s example where minors under the age of 16 cannot consent to sexual relations.
In Australia, the legal definition of consent varies between states and territories, but all criminalize sex with minors.Australian Law Reform Commission recommended it: “Federal, state and territory sex offenses regulations must include a statutory definition of consent based on the concept of free and voluntary consent.”
“Consent” therefore requires a free and voluntary act, untainted by force, fear, or intimidation.
According to Bianca FeilbornAccording to PhD, Senior Lecturer in Criminology at the University of Melbourne, consent must also be actively communicated to establish free consent, known as ‘affirmative consent’. Therefore, “consent” cannot be implied just because a minor cannot resist.
New Zealand’s current Minister of Justice, Kirill Allen, has sought advice on the issue of consent.
I can only hope that the advice she received clearly and unequivocally recommends that minors under the age of 16 cannot expressly or implicitly consent to sexual intercourse. It is also expected that there will be political will to implement the advice in a timely manner.
Views expressed in this article are those of the author and do not necessarily reflect those of The Epoch Times.
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Gabriël A. Moens AM is Emeritus Professor of Law at the University of Queensland and has served as Vice-Chancellor and Dean of Murdoch University. In 2003, Moens was awarded the Australian Centennial Medal by the Prime Minister for his contributions to education. He has taught extensively in Australia, Asia, Europe and America. Moens recently published two novels, A Twisted Choice (2020) and The Coincidence (2021).