Sunday, May 30, 2004

This "under age sex" law does not get any better, despite the fact that the Government has now announced that the proposed change is to be withdrawn from the Bill.

One of the links I have is to Mediawatch, a NZ news and media analysis programme that I listen to frequently (right lads, there's your plug...:) )

On this morning's (Sunday 30 May ) programme the progression of this law change through the media was discussed. The analysis was not at all friendly, but rather than second guess I suggest that you read the transcript when (if) it is published on their site. BTW much of what they have said I agree with and included in my previous post, but that is beside the point for what follows.

In announcing the withdrawal of the proposed provision, Phil Goff gave ( for the very first time that I can recall ) a full and cogent explanation of what the new law was intended to achieve. A bit late in the day, Phil.

I still have a problem with it though, and it is a problem that no one has yet aired in public, at least not from my reading.

If the law had been passed as I understand its proposed form, it would have removed any criminality from sexual intercourse between children where one or both were under the age of 16 and over 12 provided that the age difference was 2 years or less. Given that would have been the law...

A 13 y-o gets pregnant to her 14 y-o "boyfriend" at a beach barbeque on New Years Eve. Under the new law there would be no criminal act involved.

But has anyone given thought to the reaction the parents might have when they find out their daughter is pregnant?

The original act might have been totally consensual and hence not a criminal act under the proposed law.

But do you honestly think that the girl's parents would accept that?

The result would be enormous parental pressure on the girl to say that the intercourse was not consensual.

Following from that, where do we go next?

Non-consensual sex at any age is rape. Is that what we want the 14 y-o boy to be charged with?

Apply the new law? That only removes criminality where the intercourse is consensual. We have the girl saying (under parental "guidance") that the act was not consensual. Do the police now have any discretion on the resulting charges (as they do at the moment with the "bad, incomplete) law?

Charge the girl with perjury and laying a false complaint if her evidence that the intercourse was not consensual is proven wrong?

So, the proposal also seems flawed at its very base, because far from removing potential criminality from consenting partners, it would have had the probability of leading one or both into criminal proceeding as bad if not far worse than the present "police discretion" which if the reports have been true seems to operate reasonably well.

At least the present law, with all its problems and the discretion left to Police without the guidance of law, has been working. There has been no complaint; no lengthy appeals; no emotional pleas of justice not done or injustice done; appearing in the media, to my knowledge.

So can I presume that it does work, even if it is a probligo of sorts?

Tuesday, May 25, 2004

Just occasionally, there are events which remind me how fragile the principle of democracy truly is, even in this little country of ours.

The first hint came last year, when "in response to community pressure, and to set right inequities" Parliament began the debate on lowering the drinking age. That debate led eventually to a conscience vote of our representatives, and subsequently the lowering of the legal drinking age from 20 to 18.

The latest, and by far the most serious, began yesterday with a FRONT PAGE article drawing attention to the Crimes Amendment (No 2) Bill which is now being considered by the Law and Order Select Committee.

I can be brief about the matter that has caused all the kerfuffle because it has already been the subject of public outrage, Government retreats, weasel words from the Minister of Justice, and all of the other paraphernalia of a good old political stoush. It is, of course, the "age of sexual consent" debate.

So, if we leave out the emotive subject matter, forget for a moment about the rights and wrongs of children and criminality, what else is left?

Well friends, it is this.

If you take the time to visit the internet outlet of our Parliament - N.Z. Government- you will find all of the access that one needs to "monitor" exactly what is going on within our Parliament.

The next step is to take a look around, and a good place to start is "Bills before Select Committees." A couple of moments reading and we find it... Crimes Amendment (No 2) is before the Law and Order Select Committee. But what is this? Public submissions to the Bill closed on 14 April!

So a bit more digging is required. Finally what I am looking for... in "The Knowledge Basket", quite a way down the list I find the Crimes Amendment (No 2), dated 9 December 2003.

The picture, all things considered, is one of "business as usual".

Then, on Sunday, the Sunday Star Times broke the news. The initial news break.
So the public, or those who can be bothered, have had four months in which to make submissions to this Bill. That is plenty of time, three months if you take out the Christmas / New Year break. That is also not too different from the norm. Or have they? Tucked in the middle of the Star Times article; the Bill received its first reading, the start of the legislative process, in March!!!

This now puts a more concerning air to the way this has developed. Usually, at least I would expect, the time given for public submissions is judged from the expected level of concern. The longest that could have been allowed for this particular Bill is four weeks.

So, there is the first big concern. A Bill that usually makes no more than machinery changes to things like burglary law, the maximum penalty for rape, and such relatively "minor" matters is being used to make a change in a law that has our basic morality at its base.

But let us now take a step back for a moment. There is also a "machinery" that exists prior to the introduction of a Bill to the House. That machinery involves specialist lawyers, law "draughters", executive staff of government departments - all of these people in this instance in the Justice Dept.

It seems, if we can believe the Minister of Justice, that this particular piece of legal stupidity had its genesis in a concern that a child of twelve or thirteen could be found guilty of a criminal charge of underage sex. To commit such an innocent act and then be made a criminal is, apparently, an injustice of enormous proportions. Such a possibility must be expunged immediately from the law books.

Let us accept that for the moment.

Once the Bill has been drafted, the Minister responsible for the Bill has to be properly briefed on its content, its intended effect, and how that effect is going to be achieved through the language of the Bill.

This being the case, was Phil Goff - in all fairness to him - properly advised and briefed on the meaning and impact of this "small" change? Going by his reaction and responses to the Sunday Star Times it would seem that he thought he was...

"We're not condoning sex under 16 but we're saying we recognise it's a reality.

"If we were fastidious about prosecuting we'd be locking up thousands of teenagers and I don't think anybody in society would say that's a good response to the problem."

In most cases I think that a reasonable person could well agree with him. The reality is, however, that this legal nicety of sex with under-age children has occurred nine times last year as far as charges being laid and heard is concerned. All of those instances involved boys over the age of 16 up to 19 years, and girls under 16 years. The vast number of cases that have been reported have ended, again as a reasonable person might expect, with the police and perhaps CYF and other "counselling agencies" having a quiet word with the parents about what their kids should and should not be doing at that age.

So, there is the second big concern. How well was Goff prepared? Was he fully aware of the ramifications of this change to "the age of consent"? Was any consideration given to society's attitude to the existing law by the Department, the advisers, and eventually the Minister? Sadly, it would seem not.

Let us follow the political progress of a law change again - the introduction of the Bill to the House. Listening to the proceedings of Parliament on the radio one gets the impression that (like so much of what happens there) the matter at hand is of small consequence. They believe that the politics, the playground scrapping, is the House's most fundamental purpose.

Should we forgive the Opposition for missing the detail content of the Bill at this stage? Well, without knowing the very great detail of the process and without consulting the records of proceedings, that is a difficult one to call. As I said earlier, the Crimes Amendment Bill is more often than not routine small matters. Not a lot there to be concerned about.

So, my third concern is not perhaps so big, given what we have already looked at.

Following that little piece of machinery the Bill is referred to the relevant Select Committee. This is where the "work is done" we are always told.

It is here that we find the first real comment from H.M.'s Loyal Opposition.

Tony Riall, published Monday
"National MP and select committee member Tony Ryall said the committee did not have two options to choose from – it was Mr Goff's bill and it was approved by the Cabinet. "The select committee was told by the Ministry of Justice that the changes between 12 and 16-year-olds effectively decriminalised some sexual conducts for underage people and now Mr Goff is trying to backpedal from what he introduced into Parliament."

But, Mr Riall's comment is made, not to the Select Committee, not to initiate public debate, but in response to media reporters asking him the question. That questioning would be taking place well after Sunday Star Times had been on the street.

So here is my next concern, where was H.M.'s Loyal opposition? To be fair to them as well, they are now panting frantically after the bandwagon. It has gone past. The carousel has a full head of steam, and they are frantically trying to catch up.

The picture that is emerging in my head, and which I hope I am conveying to you the reader is that really, everyone went to sleep on this one until the Bill was well and truly embedded in the Select Committee.

Those directly involved will argue forcibly that that is the purpose of these Committees, to thoroughly examine new law and to ensure that bad law is corrected or removed. I agree, that is exactly their purpose.

What I do not think is a good idea is having the Minister in Charge of a Bill, Phil Goff in this case, continuing to justify what might have been a "good" idea with bad reasoning.

The remainder of the Bill, and a companion measure on sex crime sentences have very laudable objectives. Such matters as equating adult female - child male sex with the long standing crime of child rape adult male - female child. Good thinking that man!

The picture that emerges, from all of the local commentators, the politically "independant" gurus, is one of a Minister who has had his mind on things other than his main portfolio. Certainly Mr Goff has in the past displayed near faultless precision in the legislation he has guided through the House.

But, I guess, he is now feeling pretty much like the six or so warders at the AbuGhraib prison...

Oh, how badly has he let down the team.