=(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.
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.