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House of Assembly - Fifty-First Parliament, Second Session (51-2)
2008-04-09 Daily Xml
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Ministerial Statement

RAPE AND SEXUAL OFFENCES

The Hon. M.D. RANN (Ramsay—Premier, Minister for Economic Development, Minister for Social Inclusion, Minister for the Arts, Minister for Sustainability and Climate Change) (14:02): I seek leave to make a ministerial statement.

Leave granted.

The Hon. M.D. RANN: I am proud that I stand in a parliament today that has given its support to the most significant and far-reaching changes to South Australia's laws on rape and sexual assault in more than half a century. I am pleased to report that two pieces of legislation that encompass these landmark reforms have passed both houses of parliament and will soon become law.

This is a historic day as South Australia continues to lead the way in toughening up criminal law. The Criminal Law Consolidation (Rape and Sexual Offences) Amendment Bill 2007 was passed by both houses today, while the companion legislation, Statutes Amendment (Evidence and Procedure) Bill 2007, passed last week. It was only after extensive public consultation that our laws on rape and sexual assault were put to this parliament, which has now seen them strengthened to provide a clear and modern definition of offences and what constitutes consent to sexual activity.

It paves the way for a higher conviction rate for rape and sexual assault. Importantly, the new laws will clarify and strengthen provisions relating to the rape of victims who are intoxicated or drugged and therefore incapable of giving consent. This is one of the key parts of the legislation, and is an area which has been used repeatedly by defence lawyers in the past. Fewer than 20 per cent of rape and sexual assault cases that actually reach the courts result in a conviction; far fewer of the reported cases of rape and sexual assault ever get to court. This concerned me, it concerned the Attorney-General and it concerned the Minister for the Status of Women, as well as other members of the cabinet and of this parliament. It was clear to us that there may have been something wrong with how we define what is a rape or a sexual assault.

The reforms now supported by both Houses of Parliament clarify the definitions of the offences and remove any ambiguity about what constitutes consent. The new laws will require a judge to direct the jury, in relevant cases, that consent to sexual activity should not be assumed merely because the alleged victim:

did not say or do anything to indicate she or he did not consent;

did not protest or physically resist;

was not physically injured by the activity; and

had consensual sex with the accused person or anyone else before.

These new laws will require a person's agreement to sexual activity to be free and voluntary. Some of the circumstances in which a person will be taken not to have consented to sexual activity are:

when they agree because of force or threat of force to themselves or anyone else, or because of threats to degrade or disgrace them or anyone else;

when they were unlawfully detained at the time of the activity;

when the activity occurs while they were asleep or unconscious, or while they were too intoxicated by alcohol or drugs to be capable of agreeing freely and voluntarily, or while they were affected by a physical or mental disability that made them incapable of freely and voluntarily agreeing;

when they were unable to understand the nature of the sexual activity;

when they agreed to the activity with the person under a mistaken belief as to the person's identity; and

when they were mistaken about the nature of the activity.

The laws also reform and clarify rules about what a court may hear about an alleged victim's report of rape and the significance that should be given to a delay in reporting rape so that, where relevant, juries can hear the full story rather than just part of the story, and that is a critical breakthrough in the law.

The offence of rape will now include, specifically, a failure to stop what began as consensual sexual intercourse upon becoming aware that the other person has withdrawn consent. There will be a separate offence of compelling a person to sexually manipulate themselves or someone else, with a maximum penalty of 10 years' imprisonment or 15 years' imprisonment if aggravated. These laws also change the laws on: unlawful sexual intercourse; persistent sexual abuse; incest; and offences with animals.

Together, these laws will help ensure that South Australia's criminal justice system is more sensitive to the needs of victims of rape and sexual assault. Very importantly, there are provisions in here to ensure that the courts and the criminal justice system are much more sensitive to the needs of child victims of rape and sexual assault. I hope this will help the victims of these appalling crimes to come forward and report their crimes.

This government will now embark on a comprehensive education and awareness campaign about these laws. This will provide people working in this highly sensitive area of the criminal justice system with a better understanding of what the alleged victim may be going through.

South Australian courts will also be required to give priority to cases involving sexual offences against children, ahead of all other cases, unless exceptional circumstances exist. Children, especially, should not have the ordeal prolonged by the criminal justice system and endless delays. Also, special arrangements will be made for alleged victims of rape and sexual assaults, in giving their evidence to the court, to prevent the accused from personally cross-examining the alleged victim and protect witnesses from improper, harassing or humiliating questioning.

It is my belief that these new laws will become a catalyst for long-term changes to the way the justice system meets the needs of victims of sexual assault. I want to commend all members of parliament. This is an historic reform of the rape laws in South Australia, and one that I know will be welcomed by thousands of women in this state, and I hope it will be embraced by the legal profession.

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