Sex, gender, age, and the law: Challenges from the Opotiki case


Five young Opotiki men who pleaded guilty to sexual connection with girls under the age of sixteen, were last week discharged without conviction. Many commentators agree this was the right outcome. But left hanging in its wake are complicated questions about sex, gender, age, and the law. Not least of all: what, if anything, did this case have to do with sexual violence?

There is a lot we don’t know about the case – or more to the point, these cases. We don’t know – and neither should we – what went on between all of the girls and boys and what lead to charges being laid. But we do know some of what was said in the courtroom during sentencing. And it is troubling. There are so many contradictions, and they pose a real challenge to what we think we are doing to address sexual violence.

Several issues about this case concern me. First, is the impact on the girls – and what appears to be an injustice towards them. In the name of protecting girls from a crime of violation, it looks as if the rights of at least one and maybe all of the girls have been violated by the criminal justice process.

Second, are the highly contradictory messages about the specific ‘wrongs’ the boys were accused of committing. The judge told them they did wrong, the boys accepted they did wrong. But what exactly was that wrong? Was it simply breaching the legal technicality around age (more on that later) or was it breaching the legal technicality around age in ways that were also ethically wrong (was there disrespect, pressure, denigration, exploitation?)?

Confusion over this point risks reinforcing old-fashioned and inegalitarian sexual stereotypes that feed into the ‘cultural conditions of possibility’ for rape (eg, the idea that it’s simply natural for young men to be driven to want sex with girls younger than them; and that young women are passive vessels who can’t possibly have any sexual desires or initiative of their own).

Third, I’m wondering why a path of criminal prosecution was taken for a handful of boys over what appear (from the contradictory, semi-contextualized fragments we can piece together) to be behaviours that were either not problematic at all or were highly problematic but in ways that are arguably tied to the mixed messages we are giving young men about how to be a man.

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A confusing element in this case is that the girls who were the ‘victims’ of the crimes did not, apparently, see themselves as victims. The judge, the boys, and supposedly the girls, all agreed that the sex was consensual. (I’m hedging slightly, because not all the girls’ voices were directly reported.) Why, therefore, were these cases prosecuted? While technically sex with a person under 16 is a crime, the law is rarely used (as far as I can tell) to prosecute a young person for having consensual sex with a person a few years younger.

Having an ‘age of consent’ at which we don’t accept a person’s consent as legally meaningful is important. It helps safeguard against the kind of dangerous victim-blaming excuse-making that men who abuse children tend to use to account for their actions: “she lead me on”, “she wanted it”. Children are particularly vulnerable to coercion, manipulation and exploitation. While there is no magic age at which children become adults overnight, our law says that young persons under the age of sixteen still deserve this protection. While it could be seen as paternalistic as it also deprives them of the liberty to choose to have sex without fear of criminal consequence for their sexual partner, on balance I think it’s about right (so long as it’s not used against those very same young people).

But what is incredibly jarring in this case, is the image of one of the girls speaking out in court tearfully and strongly stating that she did not see herself as a victim. She spoke warmly about the boy accused of her statutory rape, as a “gentle giant with a kind heart” who “never forced me, never tried to make me do anything I didn’t want to do”. “There was never anything disgusting about us being together,” she said, and she did not want him to be punished.

Apparently circumstances in these cases were all quite different. But we need to listen to this young woman’s words. She describes what sounds like a caring and respectful girlfriend-boyfriend relationship that surely bears no resemblance to sexual violence. For a moment, I’m going to suspend any speculation and questions about the rights and wrongs of what happened between all of the boys and the girls, to focus on just one issue: the victimization of ‘victims’ through the criminal justice process.

We are often calling for the criminal justice system to take sexual violence more seriously. In the Roastbusters case, for example, there was widespread outrage at the failure of police to take any action against young men who boasted about egregious sexual exploitation that seemed to bear the hallmarks of gang rape. Many of us are also concerned, still, about the way ‘rape myths’ operate within the criminal justice system to filter which cases are taken seriously and prosecuted. And to blame and discredit rape victims during the court process. Some women who have had the courage to report rape and appear in the courtroom, are told by defense lawyers that what they say was rape was really consensual sex. And that it was no big deal, and they aren’t really victims at all.

In this Opotiki case, for at least one young woman, we have the very opposite happening. The criminal justice system is insisting that she is a victim when she is insisting she is not. This young woman, who said she was not a victim of any crime, by contrast described the police investigation as having “made her feel dirty and disgraceful” – “I feel like we are being used by police to make a point”. As well as this, presumably related to publicity about the case, the girls were reportedly blamed by some in the community for “causing drama” and shamed as “sluts”.

How can this possibly be right? Do we need to go back to basics and think about why we have laws against sexual violence? Isn’t it because sexual offences violate people’s fundamental rights in ways that can cause serious and lasting harm? Part of the harm of rape for some people is that it can disrupt their sense of themselves and their place in the world. So how, in the name of protecting young people against sexual violence, can we justify treating the girls in ways that mirror aspects of the same kind of violation we are trying to protect against? That, in itself, is a form of symbolic violence.

Admittedly, this is delicate territory. It is possible, I believe, that someone can be raped or sexual exploited without them recognizing it as such. And that doesn’t mean that sexual violence was not perpetrated. But neither does it mean that anyone has a right to impose a particular reality and identity on that person. There can be good reasons why people don’t identify as victims – one is that they have not been victimized! Another reason is that it can be psychologically unhelpful at a particular point in time to see oneself as a victim, and it can attract a lot of social baggage from other people. It is one thing to ask questions that potentially open up other ways a person might see their experiences (which can have both therapeutic and political value). But to outright tell someone that you know better about their experience and reality than they do is not only patronizing and disrespectful, it can cause harm.

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One response to all this, is to focus on the agreed facts that all the sex was consensual, advocate revisiting our age of consent, and see no problem at all. But here is where things get complicated and murky.

Lots of people have sex before the age of 16. The Adolescent Health Research Group’s survey of over 8000 New Zealand secondary school students in 2012 found that nearly a quarter of 15 year olds had (ever) “had sex” and nearly one in five were sexually active at the time of the survey. These figures excluded experiences of sexual abuse. Early sexual experiences are nothing new. Among people born in the early 1970s, another New Zealand study found that over a quarter of young men and nearly a third of young women had first experienced (hetero)sexual intercourse at age 15 or younger. In this study, women were more likely to be younger than their male partner. It seems likely, therefore, that sex between 15 year old girls (and – but less commonly – 14 year old girls) and older boys is not uncommon.

How does this relate to the wrongs the boys committed? If their wrong was purely a technical infringement, having sex with a girl under 16, then it would seem difficult to justify criminalising behaviour that is reasonably normative. Particularly with a crime that attracts a maximum sentence of 10 years imprisonment.

But, on the other hand, just because something is fairly common, doesn’t mean it’s always right. Research consistently paints an uninviting picture of girls’ early heterosexual experiences, with intercourse variously described as boring, painful, and a duty. It seems to be common, still, for girls to expect sexual experiences to be disconnected from their own sexual desires, and for them to feel pressure to please males. Heterosexual coercion is common, and sometimes girls feel that they have no choice to but to go along with sex. Researchers who study sexuality and sexual violence make a distinction between nonconsensual sex and unwanted sex. It is possible for a person to consent to sex that they don’t want. Equally it is possible for someone to not consent to sex that they would like (for many reasons). So, while the law has to take a dichotomous view of consent, the fact that someone consented to sex does not mean they asked for it, they enjoyed it, or even that they wanted it. In other words, just because sex was consensual doesn’t mean it was ethical.

So how do we marry up the contradictory conclusion that the boys’ actions were wrong but, according to the judge, “human nature”. If, as he said, no harm was done – “no one was forced into a position or made vulnerable” – was the wrong only a technicality?

The risk in this case is that this confusing jumble of messages (you boys did wrong, but no-one was harmed, and it was your nature anyway, so it wasn’t really wrong, but we’ll make you pay $500 all the same …?) obscures the range of different possible dynamics that the case was about. In doing so, we are invited to make sense of what went on in black and white terms. Either the girls really were victims and the boys (lead by their unruly natures) perpetrated sexual crimes; or the girls were fully and actively consenting to egalitarian sexual relations and the prosecution was totally off target. Both alternatives paper over the possibility that the reality was probably more complicated. And that to the extent real wrongs were committed, they were probably fuelled not so much by human nature as by sexist social norms about male sexual entitlement and portrayals of girls and women as bodies to please. These norms are pervasive, and their circulation is a systemic social problem that us adults must collectively take more responsibility for challenging.

From the facts presented, it is difficult to know what was happening in Opotiki that lead to charges being laid against five young men. Maybe, for some of the men, nothing more than sex with a willing but too-young partner. But if the acting out of harmful sexist sexual norms was part of what was going on (surely something more concerning than ‘underage sex’ attracted police attention and resources), then we probably need to see these boys’ behaviour in a wider context. If there were ethical wrongs that some of them committed, did they merit becoming criminal wrongs (given the girls said they consented)? Particularly if they were acting on the kinds of mixed messages we give young men about gender, power, and sexuality. That could, perhaps, seem hypocritical. And making a spectacle out of a handful of young individuals seems not only potentially unfair, but dangerously diverts attention from where it is needed – which is in challenges to the scaffolding of sexist sexual culture across the board. Not only because it creates a context in which boys’ mistreatment of girls is possible, but because it also is part and parcel of a ‘rape culture’ that makes sexual violence possible.

Nicola Gavey

[Thanks to Kirsty Johnston for sharing her insights, observations and questions that got me thinking about this thought-provoking case.]