From all that has been above written it will be seen that there is not

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."

Report of the Special Committee on Moral Delinquency in Children and Adolescents · 第 4 / 7 段