A female teacher who allegedly had sex with two of her students cannot be prosecuted because the boys were over age and consenting – and it would be no different for a male teacher, a prominent lawyer says.
The teacher resigned on Friday after allegations that she had sex with two students at St John’s College in Hamilton New Zealand.
Hamilton Police, who received a complaint on Monday, said there was no criminal offending in the case.
The matter is now being investigated by the New Zealand Teachers’ Council.
Philip Morgan QC said that in the eyes of the law the female teacher had done nothing wrong, even though her alleged actions amounted to professional misconduct.
Mr Morgan said the only difference in the situation was that it involved a teacher and student.
“Because by the age of 17 most young people these days are already sexually active, it’s just they are doing it with people of a similar age and fellow students, not their teachers.”
In a criminal sense he said there was no difference in a role reversal of the situation, even though society might be more appalled at an older male teacher becoming involved with a younger female student.
“It’s obviously a matter of grave concern for any school or possibly the Teachers’ Council but if she’s 17 and she’s consenting it’s not an offence and that’s exactly the same if it’s a female teacher and a male student.”
Sex crimes were those that happened with children under 12, however there was a defence for sex with a child aged between 12 and 16, Mr Morgan said.
“You have a defence if the complainant consented and you’re of much the same age.”
He thought police would not bother charging two underage people in a consenting relationship and if one of them was over 16 they had a defence.
After receiving the allegations the school immediately suspended the teacher.
An investigation was initiated which resulted in the teacher’s decision to resign with immediate effect.
“It makes you feel sick, absolutely it makes you feel sick because I’m an old boy of this school … I’m a Catholic through and through, I went through Marist Intermediate, St John’s College and my brothers did as well,” said the College’s Principal Shane Tong.
“This place, I love working here it’s fantastic and these young men, are fine young men and I really enjoy what I do … Its just a sense of feeling so let down I guess.”
The teacher against whom the allegations were made graduated this year and has a three-year provisional practising certificate which expires in July 2017.
In the 2012-2013 financial year, the Teachers’ Council referred 39 cases to its Disciplinary Tribunal, a quasi-judicial body that conducts hearings in a manner similar to a court.
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