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.
_(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.