Setting the law back to the 1800s

First off, I want to congratulate the Human Rights Law Resource Centre for its excellent coverage of the Momcilovic appeal over twitter. In the coming days, I'll sit down with the transcript and give my thoughts on which way the wind was blowing at the hearing. In the meantime, I recommend you all get on Twitter, do a search for #momcilovic, and read the HRLRC's summaries. It's a credit to them that they managed to compress the gist of several party's arguments into the Twitter character limit.

I now want to turn to a brief article I saw in the MX on the way home, which is reproduced in most of the Herald Sun's companion papers. The article warns that "UNDERAGE girls in NSW could be charged with being an accessory to their own rape due to a legal loophole" (link here)

The article goes on to state:

Police said prosecuting men for statutory rape was difficult because they could be compelled to charge the vulnerable child victim as an accessory to the crime. The offence of statutory rape is known in Australia as the sexual assault of a child under 16. The revelation to NSW Parliament came after Opposition community services spokeswoman Pru Goward questioned why a 25-year-old man had not been charged over an alleged relationship with a pregnant 14-year-old girl. Ms Goward had no further details of that case but she yesterday said the refusal by police to lay charges in those circumstances had set progress in rape cases back years.

It is a pity that the police officers in question didn't cast their mind back to 1800s where, in the UK decision of R v Tyrell [1894] 1 QB 10, the court answered this dilemma. The headnote accurately summarises the decision:

It is not a criminal offence for a girl between the ages of 13 and 16 to aid and abet a male person in committing or to incite him to commit the misdemeanour of having unlawful carnal knowledge of her, contrary to Section 5 of the Criminal Law Amendment Act, 1885

More relevantly, the reason for the decision was that it would undermine the purpose of legislation designed to protect a particular class of person to allow prosecutions of that class under the guise of aiding and abetting. The language is outdated, sexist and paternalistic, but the reasons in Tyrell effectively describe why allowing aiding and abetting prosecutions would be absurd:

The Act was passed for the purpose of protecting women and girls against themselves. At the time it was passed there was a discussion as to what point should be fixed as the age of consent. That discussion ended in a compromise and the age of consent was fixed at 16. With the object of protecting women and girls against themselves, the Act of Parliament: has made illicit connection with a girl under that age unlawful; if a man wishes to have such illicit connection he must wait until the girl is 16 otherwise he breaks the law; but it is impossible to say that the Act which is absolutely silent about aiding or abetting or soliciting or inciting can have intended that the girls for whose protection it was passed should be punishable under it for the offences committed upon themselves.

Tyrell's case was approved, 80 years later, in Whitehouse v R [1977] QB 868 and endorsed in Australia by Mason J of the High Court in Giorgianni v R (1985) 156 CLR 473 (though it is a reference in passing, rather than an important part of his reasoning):

In Mallan v Lee Dixon J observed that "the application of sections dealing with aiding and abetting may be excluded by the nature of the substantive offence or the general tenor or policy of the provisions by which it is created". A similar approach must be taken to apply to the exclusion of the doctrine of secondary participation at common law. It may, therefore, be inapplicable to a person of a class whom the substantive offence is designed to protect (Reg v Tyrell [1894] 1 QB ,10; Reg v Whitehouse [1977] QB 868; cf United States v Annunziato (1961) 293 F (2d) 373 at p379) or in respect of whose participation some lesser punishment is imposed: Ellis v Guerin [1925] SASR 282; cf People v Pangelina (1981) 117 Cal App (3d) 414 at p420 - p421. It may also be inapplicable where the substantive offence itself involves some element of secondary participation: cf Jenks v Turpin (1884) 13 QBD 505 at p526; Carmichael & Sons (Worcester) Ltd v Cottle [1971] RTR 11, at p14. And in McAteer v Lester [1962] NZLR 485, a legislative intent to exclude responsibility for secondary participation was found in s194(1) of the Licensing Act 1908 (NZ) which made it an offence for a person to be found on licensed premises at certain times unless he satisfied the court that he was on the premises for a lawful purpose.

Now, there can be difficult questions at the margins for when an offence is created to protect a particular class (see, for example, Keane v Police (1997) 69 SASR 481, which surprisingly held that a person protected under a domestic violence intervention order can aid and abet its breach), but until now, I didn't know that there was any dispute about the categorisation of sexual offences against children. And if the NSW police force's decision has "set progress in rape cases back years", it is going to have to go way back to before 1894!

A more likely explanation for the difficulties of prosecuting sexual offences against children (especially, I suggest, in the 14-16 age bracket), is that where there is a consensual sexual relationship, the 'victim' is not likely to want to be responsible for sending their partner to prison for a couple of years. And that problem is far more difficult to solve than passing redundant legislation to give statutory force to what has been the common law position for over 100 years.