In this case Judge Bidois not only discharged the defendants without conviction, however. He went further, suggesting that it might be time to revisit the law, or at least the sentencing approach to what some societies still call statutory rape. There are valid reasons, surely, for insisting that sexual intercourse with a minor should be, and remain, a criminal offence.
To declare it otherwise would be to open the door to a decidedly unhealthy acceptance of any man's right to prey upon girls who, legally and by every other measure, are entitled to be regarded as children.
Not surprisingly, some don't see it that way. NZME journalist Rachael Smalley has argued that improvements in diet and "lifestyles" (whatever that means) have led to children entering puberty at a much earlier age than previous generations. Whether that physical precociousness is matched by earlier emotional development is doubtful, and one would hope that setting the legal age of consent would be based on rather more than the development of a child's genitalia.
There is also the question of where we set the bar. Ms Smalley apparently sees nothing wrong with a girl of 14 sleeping with a boy of 16 or 17; what if the male participant is 20, or 30, or 50? Should the law set a cut-off point? Or do we shrug our shoulders and say that if a girl is physically capable of sexual intercourse she's fair game?
The reaction of Relationship Matters director Steve Taylor has a more rational ring to it. He interpreted Judge Bidois' views as giving licence to men to act with sexual impunity against vulnerable young women. He also questioned how parents could continue to have "reasonable confidence" in the judiciary to uphold laws that were created to protect their children.
Encouragingly, Justice Minister Amy Adams says she has no plans to consider changing the law that makes it illegal for any person to have sex with a child under the age of 16, or the manner in which charges are brought. For Judge Bidois and others of his ilk there is already an out - anyone charged with having sex with a child aged 12 to 16 can defend themselves on the basis that they believed the young person to be over the age of 16 and that they consented.
There is no legal defence to a charge of having sex with a child under the age of 12.
Further discretion can be applied before the accused gets anywhere near a dock, in that it is up to the police, and ultimately the Solicitor-General, to decide whether charges will be laid. By the time the defendant arrives in court it has been decided by the prosecution that an offence has been committed, and it is up to the judge to determine whether that is the case, and, if so, how the offender should be punished.
In the situation in Opotiki, where the accused did not seek to defend themselves, it was perhaps not unreasonable to discharge the boys without conviction given the stigma attached to sexual offending against children and the impact convictions might have had on the rest of their lives. But the distasteful impression that these were just kids being kids remains, and of course Judge Bidois made it clear that he believed the law to be an ass. It is not.
He also observed that the "traditional approach" was that young people needed protecting from themselves. In this case, he said, the girls, who had "largely rejected" the victim label, had been victimised by the system.
How a judge could come to that conclusion beggars belief. He might well have been right in his interpretation of the specific circumstances behind these charges and the enthusiasm with which the girls had participated (although how they will judge their behaviour in years to come remains to be seen), but to apply that to the entire spectrum of sex before the age of consent was wrong, and dangerous. Girls might well be reaching the age of puberty earlier than their mothers and grandmothers did, but it is doubtful that puberty was the only consideration when the law was enacted.
A 15-year-old girl, no matter how well-nourished she might be, no matter how superior her lifestyle in terms of those endured by her forebears, is a child. She might well be capable of mastering the mechanics of a sexual relationship, but she can't be expected to be emotionally or intellectually mature enough to engage in such behaviour.
That a judge could even instigate this debate is deeply disturbing. It's not that long ago that we were outraged by the depredations of the young predators who revelled in their status as Roastbusters, and there has been more such offending (but no convictions) since then, young men plying girls with alcohol then abusing them in the most degrading fashion. There was no suggestion of such behaviour in Opotiki, but the last thing we need in this society is a relaxation of laws that, whether Judge Bidois likes it or not, really are designed to protect young people from themselves. One wonders if his attitude would have changed had one of these girls been his daughter.
Will these boys and others of their kind have learned anything? Probably not. Dollars to doughnuts they have picked up where they left off, but a little more discreetly so they won't be caught again. And why shouldn't they? What they've been doing is perfectly acceptable to the Opotiki District Court, and, according to the reported reaction in court to their discharge without conviction, to their families.
One wonders how much further we have to sink before standards become fashionable in this country again, a process that might be hastened just a little if judges were reminded that their job is not to write law but to apply it, especially if they don't possess the imagination to see where their misguided views might lead us.
