any one cause of the sexual delinquency among children which has
provoked this inquiry. There are many predisposing and precipitating
causes. If there be any common denominator in the majority of cases
studied by the Committee it is lack of appreciation by parents of their
personal responsibility for the upbringing and behaviour of their
children or, if they do appreciate their responsibility, they are unable
to guide them correctly and to maintain control of them. This finding is
in harmony with the current of public opinion expressed in the
statements that "it all comes back to the parents" or "the parents are
to blame". That much cannot be gainsaid.
But what is the root cause of this failure or inability on the part of
present-day parents? This is an aspect of its assignment to which the
Committee has paid great attention.
It should be made quite plain that the Committee does not subscribe to
the view that the sexual immorality which has recently been brought to
notice is entirely of the pattern which prevailed in former generations.
Nor can the Committee be content with platitudinous recommendations as
to how this immorality among young persons may be kept in check within
the existing processes of the law. It is the view of the Committee that
during the past few decades there have been changes in certain aspects
of family life throughout the English-speaking world leading to a
decline in morality as it has generally been understood. A remedy must
be found before this decline leads to the decay of the family itself as
the centre and core of our national life and culture.
=(2) The Place of the Family in the Legal System=
The emphasis which the Committee places upon this section of its report
calls for a statement of the place of the family in English law.
The family (meaning thereby the father, mother, and children) from time
immemorial has had a definite and recognized status in our national
life--a place which it has not always occupied or enjoyed in other
cultures and other systems of law. There is in our culture an air of
sanctity about the home where parents and children dwell. The rights of
a parent against any intrusion into his family affairs have been
expressed in such statements as "A man's house is his castle".
Our law of domestic relations centres upon the home. When the
Legislature or the law-courts have interfered in the conduct of a home
it has only been because one member of the family has failed to
discharge the duties which an individual is required to perform towards
other members of the family or towards society. Speaking generally, the
rights and duties of individual members of the family have been
preserved and enforced in our statute law. Illustrations are to be found
in the Infants Act, the Destitute Persons Act, the Child Welfare Act,
the Family Protection Act, and the Joint Family Homes Act.
The policy of English law is, and always has been, to keep the family
together and to uphold the rights of parents. Those rights have
correlative duties attaching to them. It is the failure of some parents
to perform those duties which has now become a matter of grave concern.
The irony of the situation is that this slipping of parental
responsibility has occurred contemporaneously with the granting of
financial and other help to parents. Family allowances and State homes
should be concomitants of an increased sense of responsibility. Despite
all that the State has done, and is doing, for families, the moral
standards of the community have somehow been undermined. Is this because
of a general lowering of the moral standards of adults? Is the attitude
of children towards sexual matters a direct reflection of the thoughts
and conduct of their elders? To borrow the words of a Jewish proverb
"the apple never falls far from the tree". It has been firmly urged upon
the Committee that there has been a "breakdown of the moral order and
moral standards". That may be putting the matter too strongly, but there
can be no denying the fact that the sanctions of morality today are not
as strong as they were, say, forty or fifty years ago.
=(3) The Sanctions of Religion and Morality in Family Life=
Up till early in this century the chief sanctions operating in society
were those dictated either by religion or by wisdom and past experience,
i.e., religious sanctions and moral sanctions. The standard of religious
morality is that which is prescribed in the Bible, interpreted perhaps
in different ways by different denominations at different times. The
standard of conventional morality is that which has been handed down
from generation to generation. There have at times been differences
between the religious standard and the conventional standard. For
instance, the Church has always reprobated adultery, but even as late as
the nineteenth century society accepted, without very much concern, the
conduct of a man who had both a legal wife and a mistress. Despite those
occasional differences between the religious standard and the
conventional standard, our system of morals has been based on the
standards of Christianity.
=(4) The Moral Drift=
During last century it was strongly urged by some scientists that a
religion based on faith was untenable. Man, it was contended, should
accept only what could be proved by reasoning from observed facts. Once
again there emerged, particularly in scientific and literary circles,
the belief that there could be a code of morals entirely devoid of
religious content.
This intellectual standpoint helped to undermine the authority of the
churches. The views of the scientists were not the cause of, but
undoubtedly did accelerate, the drift from organized religion.
There is evidence of the effects of beliefs developed during the present
century in another field of learning, that of psychology. On the one
hand, it is held that there was in former days suppression of the
natural development of human personality and, on the other, that a great
deal of misery has been caused by feelings of guilt. Ill health, even
mental illness, has been attributed to these two factors.
Between the two world wars much of the material of the new psychologists
began to drift into circulation in so-called popular editions. Doubtless
much of the writing was from reputable sources, but the new views, good
in origin, began to suffer as had religious faith in the past from poor
exponents.
A desire for scientific accuracy is understandable, a wish to understand
the working of the human mind wholly commendable, but many people whose
loose behaviour was instinctive, rather than inspired, now had
apologists for their conduct. The moral drift had become moral chaos.
_XIV. Changing Times and Concepts_
Since the beginning of the twentieth century the undermentioned aspects
of a changed social order have become evident. It is not within the
province of this Committee to make an appraisal of the tenets implicit
in any of them. Ecclesiastics may preach against the sins involved;
opposition may arise to the philosophy of education; commercial and
professional interests may inveigh against the inroads of the State, but
this Committee is concerned only in their effects on the sexual
behaviour of young people whose habits and characters are being
affected. It is now necessary to examine them.
=(1) Contraceptives=
Perhaps the first major shock to "respectable" society regarding sex was
when it became known, soon after the beginning of the First World War,
that the Army authorities were distributing "condoms" to troops about to
go on leave. Probably this was the first recognition by the New Zealand
Government of contraceptives. This decision by the Army was accepted by
society, not without misgivings, on the basis that it was much more
important to guard against the spread of venereal disease than to
endeavour to enforce continence among the troops. Society was obliged to
choose between two evils, and it chose what it regarded as the lesser.
Contraceptives thereafter came into common use, are now purchased by a
majority of married couples, and by many unmarried persons. Their
acceptance by the married has posed some problems which have required
the attention of the Courts in England. It was not foreseen, when they
came into use, that questions would arise as to the validity of certain
marriages where one party used contraceptives to avoid having children.
The Committee has found a strong public demand that contraceptives
should not be allowed to get into the hands of children and adolescents.
Whatever views may be held concerning the use of contraceptives by older
people (married or unmarried) no responsible father or mother would
countenance their possession by their young sons and daughters.
The Committee is unanimous that adolescents should not buy or have
contraceptives in their possession.
=(2) The Broadening of the Divorce Laws=
The subject of divorce was very fully discussed in the Houses of
Parliament in England, in New Zealand, and elsewhere after the First
World War.
If parents are unable to live happy lives together or to become
reconciled after differences have arisen, the interests of the children
may be improved, or may be worsened, by a legal separation or a divorce.
Tension in the home may be just as big a factor in the causation of
delinquency as a divorce or separation of the spouses.
Juvenile delinquency in all its forms is frequently associated with
homes where the marriage is broken either by a divorce, separation, or
discord. It is not so much the separation as the tension which precedes
and succeeds it that results in children getting out of control.
The matter is noted here solely because, if parents cannot agree
together, they are less likely to discharge their duties to their
children. Greater is the responsibility which rests upon them in these
unhappy circumstances. If parents are unwilling to shoulder the extra
burden caused by the break-down of their marriage, some action by the
State may be required if it seems likely that children may suffer.
=(3) Pre-marital Relations=
One aspect of the moral drift is the number of people who entertain the
nebulous idea that it is somehow not wrong to have pre-marital relations
or to live together as man and wife without marriage.
Such a view is opposed to all the ideas of chastity which are inherent
in our morality. Apart from that, an irregular sex relationship may be
psychologically[6] disadvantageous.
However much adults may desire a good moral standard to be observed by
children and adolescents, they have no right to expect it unless they
conform to proper moral standards themselves.
=(4) "Self-expression" in Children=
Early in this century psychologists said that the repressive influences
of early discipline were stultifying to the development of the child.
They advocated that the child's personality would mature better if
uninhibited. This has been interpreted by many people to mean that you
should not use corrective measures in the upbringing of children and
that their natural impulses must not be suppressed. Some of these people
have even thought it wrong to say "No" to a child.
People brought up in this way have now become parents. It is difficult
for them to adopt an attitude to their children which does not go to
extremes either way. As a revolt against their own upbringing, they are
either too firm in their control or too lax. Children brought up in both
of these ways have been featured in the case notes of delinquent
children placed before the Committee.
=(5) Materialistic Concepts in Society=
Education, medical and hospital treatment, industrial insurance,
sickness and age benefits, and other things are all provided by the
State, when the need arises, without direct charge upon the individual.
The virtues of thrift and self-denial have been disappearing. Incentive
does not have the place in our economy which it used to have. The
tendency has been to turn to the State for the supply of all material
needs. By encouraging parents to rely upon the State their sense of
responsibility for the upbringing of their children has been diminished.
The adolescent of today has been born into a world where things
temporal, such as money values and costs, are discussed much more than
spiritual things. The weekly "child's allowance" is regarded by some
children as their own perquisite from the benevolent Government.
The dangers inherent in this materialistic view is that many young
people who could profit from further education do not feel a sufficient
inducement to continue study. They leave school too soon, and the
broadening influences which could come from further education in the
daytime, or the evenings, is lost to them. In the result, these young
people, having too much interest in material things, and not enough in
the things of the mind and the spirit, become a potential source of
trouble in the community.
One suggestion made to the Committee was that saving and thrift should
be encouraged, or that this might be enforced through the Children's
Court in cases where it is found that offenders have fallen into
criminal immorality through having more money than suffices to pay the
reasonable necessaries of life. While the powers of the Children's Court
might be extended or used for this purpose in extreme cases where
adolescents are brought before the Court, the best help can come from
wise action by parents to prevent their powers of direction and control
being undermined through young persons having too much freedom and too
many of the material things which are not necessary for their
well-being.
_XV. The Law and Morality_
=(1) History of the Law Regarding Morality=
At no time in the history of the British Commonwealth have Parliaments
or the law-courts endeavoured to impose a system or code of morality on
the people. Men are not required by the governing powers to observe the
moral law, any more than they are required to attend Divine worship. But
Parliament, in the shaping of legislation, and the Judges in the
administration of justice, have frequently had regard to that
indefinable sense of right and wrong which becomes implanted in the
human breast. Furthermore, the law, while not coercing any one into
following a particular course of moral conduct, has, nevertheless,
always been careful to restrain people from acting in such a way as may
cause offence to those who do observe the principles of religion or of
morality.
Offences against religion (for example, blasphemy and disturbing public
worship), and offences against decency and morality (for example,
indecent exposure, indecent publications, and prostitution) are strongly
reprehended.
In determining what conduct on the part of an individual should be
condemned the law has always endeavoured to maintain a balance between
freedom of the individual and the rights of the community not to be
harmed by the exercise of that freedom.
The law is not interested in sin, or even immorality, but it is vitally
interested in the effects of them. A person may stay away from church,
but he must not scoff at the Holy Scriptures. He may bathe in the nude,
but not at a public beach or near where persons are passing. A human
model may be posed for an artist, but must not be exhibited in a shop
window.
One other feature of the law regarding morals is that there are some
things which adults are not restrained from doing but which the law will
not suffer to be done by minors. Common examples are found in the
restraints which are imposed on children smoking, or entering upon
premises open for "drinking" or betting.
Similarly, through reason and experience, the law has found it necessary
to set some limits on the right of an individual to do what he likes
with his own person. The community has an interest in the life of every
citizen. More particularly may this be said to be so when the State
spends much money on the education and health of the people. Suicide
has always been wrongful; attempts at suicide are therefore punishable,
partly because the State has an interest in maintaining human life, and
partly because suicide is a result of sin and a breach of morality.
=(2) Protection of Women and Girls from Defilement=
At common law the woman was always regarded as the mistress of her own
person. Consent was therefore a defence to a charge of rape. The
Legislature subsequently interfered for the good of society and in the
interests of morality by legislating against abortion, against
soliciting for the purpose of prostitution, against the keeping of
brothels, and against procuration for the purpose of carnal knowledge.
The next development of consequence in the law on this matter was in the
Criminal Law Amendment Act of 1885 (England). This statute, which was
subsequently followed in New Zealand, made it a criminal offence to have
carnal knowledge of girls. The penalties were graded according to the
ages of the girls involved.
As an indication of the seriousness with which the law, by successive
stages, has regarded sexual offences it is convenient here to summarize
the penalties set out in sections 212 _et seq._ of the Crimes Act
(N.Z.).
Rape Imprisonment for life.
Attempted rape Imprisonment for 10 years.
Carnal knowledge of girl under 10 Imprisonment for life.
Carnal knowledge of girl 10 to 11 years Imprisonment for 10 years.
Attempted carnal knowledge of girl
under 12 years Imprisonment for 7 years.
Carnal knowledge of girl 12 to 16 years Imprisonment for 5 years.
Indecent assault on female Imprisonment for 7 years.
The above are the maximum penalties. The modern tendency is to inflict
much lesser punishment upon an offender, to grade the punishment having
regard to such matters as the damage done, the past history of the
offender, and the prospect of reform.
=(3) Consent as a Defence=
The consent of a girl under 12 years of age cannot be raised as a
defence to any defilement charge.
But where the girl is over 12 and under 16 her consent may be raised as
a defence if:
(_a_) The girl is older than or of the same age as the person
charged; or
(_b_) It is made to appear to the jury that the accused is under
the age of 21 and had reasonable cause to believe that the girl
was of or over the age of 16 years.
The law on this point is not uniform throughout the Commonwealth. In
Victoria the defence of consent is available only when the girl is older
than, or of the same age as, the accused (_vide_ Crimes Act 1928, Vict.
3664, sec. 45). The Committee has been officially informed that this law
(most rigid when compared with the defence of consent available in this
Dominion) has been working well since it was first enacted about fifty
years ago.
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:
(i) The failure of the law to make it an offence for a
sophisticated girl to entice a male into carnal knowledge of her.
(ii) The modern practice of not publishing the names of the girls
involved.
(iii) The fact that the defence of consent is available to persons
under 21 years of age is a factor making it more difficult to
obtain a conviction when the person charged is over 21 years.
_(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.
Having regard to the evidence before the Committee that many boys have
been tempted and encouraged into sexual crime by the indecent conduct of
girls themselves, in picture theatres and elsewhere, the time has
arrived when boys should be protected by letting the girls know that
they too commit an offence when they act towards boys in an indecent
manner.
=(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:
First, to allow the law to remain as it is.
Secondly, to strike out the proviso which permits this defence of
consent to be raised in cases where the accused is under 21 years
and older than the girl.
Thirdly, to alter the wording of the provision regarding age of
consent from--
" ... it is made to appear ... that the accused was under 21 and
had reasonable cause to believe that the girl was of or over the
age of 16."
to--
" ... if the accused (being a person under the age of 21 years)
took all reasonable steps to ascertain that the girl was of or
over the age of 16 years and did as a result thereof believe
that she was of or over the age of 16 years."