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House of Assembly - Fifty-First Parliament, Second Session (51-2)
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CRIMINAL LAW CONSOLIDATION (RAPE AND SEXUAL OFFENCES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 25 October 2007. Page 1478)

Mrs REDMOND (Heysen) (11:01): I indicate to the house that I will be the lead speaker for the Opposition in relation to this bill. It is, of course, a bill that was originally introduced about 12 months ago in a slightly different form, which the government did not then progress. The bill subsequently lapsed when the parliament prorogued and was reintroduced in an amended form in, I think, about October last year after some consultation with the public about the various proposals contained in the bill. They effectively amount to three major changes: the reform of the offence of persistent sexual abuse; the severance of trials for sexual offence proceedings; and the reform of the offence of rape, as well as a couple of other ancillary or minor matters—although, obviously, not to those who are concerned with them.

One is that the bill addresses an existing anomaly by making it clear that persons who have had genital surgery—that is, female genital mutilation or transsexuals—can also be raped. Of course, at present the law does not include them, and it is right and proper that we amend the law to allow that. Consequently, it also amends the Child Sex Offenders Registration Act to ensure that, whether one is convicted of persistent sexual abuse of a child under the current law or the proposed law in the bill, it will still result in liability to registration under that act. I will not say anything further about those two amendments.

I will move, instead, to the amendment which I think is the most contentious and difficult, in a sense; that is, the reform of the offence of rape. The government actually commissioned a report by Liesl Chapman, who is a very good and experienced lawyer. She prepared a report specifically on the issue of rape law, which was presented to the government and the parliament in early 2006; so, almost two years ago. The basis for the need for that report and for looking at this area of the law generally was that it is clear that rape and sexual assault victims often do not pursue legal avenues and, in fact, often do not report the offences against them. Moreover, not only do we have low reporting rates but we then have low prosecution and conviction rates in this particular area of the law.

I agree with the government's position that it was necessary to look at this to see what we could do to ensure the law provides a just outcome for people who have been the subject of rape or sexual abuse. The other amendment concerning persistent sexual abuse of a child, of course, largely relies on the findings of the Layton report which was about protecting our children and which was commissioned by the government early in its first term.

In one sense, the law of rape is reasonably straightforward, but in a technical sense can be quite difficult to prosecute successfully. Obviously much of the evidence will be of the nature of 'He said', 'She said', 'He did', 'No, I didn't'. It will come down to the two protagonists in the courtroom as to who is believed in terms of the outcome of the proceedings and whether a prosecution is successful and a conviction actually obtained.

From talking with barristers about this particular legislation the indication is that, in fact, much of what was in the law and, indeed, will still be in the law, is really a reflection of the common law position. We would all understand rape to be the act of sexual intercourse without the consent of one party. As a concept that is not all that difficult, except we need to broaden that beyond simply sexual intercourse and, most difficult of all, we need to try to come to terms with just what constitutes consent. It is that issue upon which the government has concentrated its efforts in relation to this bill. Presently, the law of rape requires that there be true and genuine consent and that remains the case. What is happening in this particular statute is that, rather than that being a common law concept which is not defined, an attempt to codify the law has been made on the issue of consent and to clarify further than that the concept of 'reckless indifference'. Basically, the bill provides that a person will not be taken to have consented to sexual activity—and sexual activity is wider than simply sexual intercourse—unless she (commonly) or he voluntarily agreed to it.

The bill sets out a list of circumstances in which a person will be taken not to have freely or voluntarily agreed. All the circumstances put into the bill have been identified in actual rape cases as vitiating consent. For instance, if the victim of the alleged rape was unconscious, then clearly, although they might not have been able to say 'No', or to physically resist, their being unconscious presupposes that the person did not actually have the capacity to consent and did not, indeed, freely and voluntarily consent to the sexual activity; or if someone is so intoxicated, even if they are not completely unconscious, they may well lack the ability to give free and voluntary consent.

It is new and difficult ground for the law to approach this topic. Of course, it is even fairly delicate to tread the path of discussing it in a forum such as this because you reach the point where you have to ask 'Well, at what point can consent be withdrawn?' Is there a point during sexual intercourse at which consent can be withdrawn, or conversely, cannot be withdrawn? That, in itself, is a difficult and complex question for a legislature to try to grapple with. Is there a point at which it is unreasonable, for instance, for a female to say, 'No, sorry, I no longer consent', and for a male to have to withdraw?

My reading of the law is that, indeed, under this legislation, potentially there is no point at which it will be unreasonable for a female to say, 'I now withdraw consent.' I think that is going to be one of the real issues about this particular piece of legislation, because my view of the world is that, reasonably, there should be a point (using that example) at which it is unreasonable for a female to withdraw consent.

The Hon. M.J. Atkinson: Such as?

Mrs REDMOND: Such as at the very last moment. Importantly, I think that the change will address another major problem. This is a problem of which I became aware while I was shadow minister for disability, and it was something for which I tried to get some media interest. None was forthcoming because of the need of the media to have basically a talking head to talk about the issue.

The issue was this: we have around this state, and around this city, a number of facilities known as supported residential facilities. In those facilities we have people with intellectual disabilities and people with mental illness issues and sometimes people who have both. It is, to some extent, a transient population.

Over the years, we have had a change in the balance of the nature of the problems of the people in those facilities, so that now most of those facilities report about 60 per cent of their occupants as having a mental illness problem—with or without an intellectual disability, they have a mental illness problem—and the difficulty that I became aware of was that there are young women being placed into some of those facilities (often reluctantly by their families) who are sexually naive in the extreme.

Their families would come back a day or two later or a week later or whenever and find that, suddenly, these young women had become not just sexually active but were effectively being raped, in my view. They were being raped because they lacked the ability to give the consent that most of us take for granted.

Because these young women were over the age of 18, the police—and I am not trying to blame the police here—felt that they were powerless to act in these circumstances, because sometimes the woman would say, 'He's my boyfriend' or 'I consented'; sometimes the alleged boyfriend would say, 'She consented'; and sometimes they had multiple partners over a period of just 48 hours.

The family of this female family member—who, as I said, was absolutely sexually naive—suddenly found that they had a whole new set of issues to deal with because of having placed her into a supported residential facility, and, in spite of the fact that, on some occasions, clearly the sexual activity did appear to meet the requirements for saying it was rape, it was not prosecuted as rape because the police felt powerless to act.

They felt that either they could not get a consistent story out of the victim, or the perpetrator's story would be believed, or the person was just not going to be a reliable enough witness for the matter to go to trial. It basically led to a situation where families were very hesitant about putting their loved one into a supported residential facility because they could be confronted with this activity.

My view—indeed my party's view coming into the last election—is that we should give a lot more resourcing to supported residential facilities and lift them from local government licensing up to a state government level of licensing—after all, it is state legislation—so that there would be some consistency of approach.

More importantly, as far as possible, we would bring them into a situation where we separate and segregate as much as possible people with an intellectual disability from people with a mental illness, because often people with a mental illness are quite aggressive and much more worldly than those with an intellectual disability. The families largely supported that view. Obviously, there are people who suffer from both intellectual disability and mental illness, so it is not an absolute that we can talk in. However, in my view, as far as practicable it would be appropriate to seek to differentiate those two types of separate supported residential facilities. That was one of the reasons behind it.

Another thing I would like to see is the option of single sex accommodation, because a lot of young women find it quite threatening suddenly to be in a situation where they are sharing a household with men. In my view, it is unreasonable to expect them to have to do that. It is all very well for those who wish to have that, but I believe that we should provide as much choice as possible.

Whilst I have some misgivings about this legislation, I believe that the change will go a long way to address that problem. What will happen under the new legislation is that the prosecution will have to prove that there was an act of sexual intercourse; that the complainant did not consent to the act; or that the accused either knew that the complainant was not consenting or was recklessly indifferent as to whether he or she was consenting, and failed to take reasonable steps to ascertain whether the other person was consenting. No-one wants to go down the path of creating a situation where every time one has intercourse we have to have a statutory declaration giving consent for the activity.

Mr Pengilly interjecting:

Mrs REDMOND: I could make a lot of comments in response to some of the heckling here, but I will not. The reality is that, for most people—married couples, for instance—sexual intercourse sometimes occurs with a non-verbal communication, I suppose, but at least with a presumption of consent. I do not want to go into some of the jocular comments that may be obvious to those who have considered the implications of this part of the bill.

The bill sets out a non-exhaustive list of circumstances in which a person might be taken not to have freely or voluntarily agreed, and the onus will be on the perpetrator to show that they had a reasonable belief. It does get quite complicated because, at the present time, it is a defence at common law if the perpetrator honestly believes the other person to have consented, even if that belief was mistaken or unreasonable. That is really the essence of the change. That is what the common law says: even if the belief was mistaken or unreasonable, as long as the perpetrator believed that there was real consent, that is a defence. Whereas now, they will be able to prosecute if the accused either knew the complainant was not consenting, was recklessly indifferent as to whether he or she was consenting or failed to take reasonable steps to ascertain whether the other person was consenting.

I received a letter about this particular issue from a chap by the name of Ian Leader-Elliott, who is a lecturer, I think—I am not sure whether that is his right title—at the Adelaide University Law School. He took the trouble to write me quite a learned paper, which I think he also sent to the Attorney. Basically, he sets out an argument for why we need to relook at the offence created in this part of the bill. First, he points out that there were two versions of it, as I mentioned at the beginning of my comments. The first version was introduced on 7 February last year, and that version lapsed when the parliament was prorogued and then recommenced on the celebration of our sesquicentenary of self-government.

I note the member for Light nodding agreement, because he and I were two of the very few people in the chamber who actually celebrated, at one time, the sesquicentenary of local government in the state as members of local government and, subsequently, celebrated the sesquicentenary of state government as members of state government. Indeed, we have still not got around to having the photo taken on the front steps of Parliament House that we intended for the elite group to which that applies.

The 7 February bill was different from the October version. Ian Leader-Elliott asserts that the difference is both fundamental and contested. His letter to me states:

The question is whether a person who engages in sexual intercourse with another, without their consent, can be convicted of rape if they believed, quite unreasonably, that the other person had in fact consented to sexual intercourse. On a literal reading, the February Version would require conviction for the offence in such a case, while the October Version would require acquittal.

He asserts that we cannot rely on juries to rectify legislative oversights, but he points out that the February version provides:

It is rape if a person engages in sexual intercourse without consent and:

i. The person knew that the other had not consented;

ii. The person was recklessly indifferent as to whether the other had consented; or

iii. The person failed to take reasonable steps in the circumstances to ascertain whether the other person consented to engage in intercourse.

In the October version:

It is rape if a person engages in sexual intercourse without consent and:

i. The person knew that the other had not consented; or

ii. The person was recklessly indifferent as to whether the other had consented.

So, what is deleted from that, of course, is the third option that the person failed to take reasonable steps in the circumstances to ascertain whether the other person consented to engage in intercourse.

It is interesting that the words 'in the circumstances' appear in the legislation, and one might ask, quite legitimately, 'What circumstances and what variables of circumstances would lead the answer to change from time to time?' I suggest that, at that point, it is worth considering whether there is a point in the process of a sexual encounter where it is unreasonable to stop and ask further whether consent is freely given. He points out that it is immediately apparent that potential application of the offence of rape has been narrowed by the omission of the third fault element in the February version, that is, the 'failure to take reasonable steps' to ascertain whether the person had consented, although they still do mention the term 'reasonable steps' in the October version.

Ian Leader-Elliott notes three concerns about that: first, the extension of liability for rape so as to include cases of failure to take reasonable steps proposed in the February version was a significant proposal for reform, but it appears to have been abandoned. Secondly, the extension of liability for rape so as to include cases of failure to take reasonable steps would have barred reliance by a defendant on a drunken and unreasonable mistake about consent. That is, a person who made an unreasonable mistake about consent, as a consequence of recreational intoxication, could not be said to have taken reasonable steps to ascertain whether the victim consented to the act of intercourse. He suggested that that may or may not be a good thing, but it was an issue that was raised explicitly in the review.

The third concern that he expresses is that the proposal for redefinition of the concept of reckless indifference would introduce a new impediment to conviction for rape that is not recognised by existing law. So, in his view, the second version of this proposed amendment—that is, the October version and the version which is now before the house—will have less chance of securing convictions for rape than the earlier version would have had. As I said, my understanding is that the original version was based on the Liesl Chapman report and her recommendations, but the subsequent version has been amended following consultation with a range of stakeholders. No doubt, it is the government's intention to strike a balance. I guess that in the case of just about all legislation coming under my watch as the shadow attorney-general that is the difficulty we constantly face as legislators, that is, finding the right balance between infringing the rights of citizens, as we might discuss tomorrow, or the rights of defendants to every available defence, and the rights of the community at large to ensure that rape victims are accorded the ability to secure convictions for these very serious offences.

The current law in South Australia, which, as I have said, is based on common law and not defined in the statutes, already requires proof that the accused had knowledge of a lack of consent or was at least recklessly indifferent as to that consent. Largely, this legislation will reflect what already happens in common law. However, at the moment, the meaning of 'reckless consent' is not defined, and this bill seeks to address that. It defines it to mean either that the accused realised the possibility that the other person might not be consenting—clearly, reckless indifference—or did not give any thought to the matter and proceeded to have sexual intercourse regardless. I can well imagine that there would be plenty of people in the community who would not give any thought to the matter and would proceed to have sexual intercourse regardless. So, it is going to be codification of the law.

I now turn to the terms under which we will deal with these things, bearing in mind that sexual intercourse is really penetration and is defined as such under this legislation. Sexual activity is separately defined and includes sexual intercourse but may well fall short of actual sexual intercourse. I will just run through the circumstances that are listed in what will become section 46, under clause 5 of the legislation. Section 46, 'Consent to sexual activity', provides:

(2) For the purposes of this division, a person consents to sexual activity if the person freely and voluntarily agrees to the sexual activity...

It should be borne in mind that sexual activity includes sexual intercourse but is clearly not limited to sexual intercourse. It goes on to provide:

(3) Without limiting subsection (2), a person is taken not to freely and voluntarily agree to sexual activity if—

(a) the person agrees because of—

(i) the application of force or an express or implied threat of the application of force or a fear of the application of force to the person or to some other person;

For instance, a mother might be threatened by the fact that her child is being threatened with force if she does not agree to sexual activity. The other option is as follows:

(ii) an express or implied threat to degrade, humiliate, disgrace or harass the person or some other person;

So, that is the first circumstance in which consent will not be taken to have been given freely and voluntarily, and that is fairly self evident. The second circumstance, under paragraph (b), provides:

the person is unlawfully detained at the time of the activity—

in kidnapping circumstances and so on—

(c) the activity occurs while the person is asleep or unconscious...

I think last year we had a case, which received a fair bit of media attention in this state, with just such a circumstance. My recollection is that there was indeed a conviction secured on the basis of the common law as it stands. Continuing:

(d) the activity occurs while the person is intoxicated (whether by alcohol or any other substance or combination of substances)...

They have to be intoxicated 'to the point of being incapable of freely and voluntarily agreeing to the activity'. That raises some interesting questions in terms of the effect of intoxication and at what point one says that a person becomes incapable of freely and voluntarily consenting to activity. I am sure we all know that people respond to alcohol, and perhaps other drugs, in different ways. Some people very quickly become completely disinhibited, whereas others may become aggressive and have a different response to it, but that is what is set out in paragraph (d). Then:

(e) the activity occurs while the person is affected by a physical, mental or intellectual condition or impairment such that the person is incapable of freely and voluntarily agreeing.

As I have already pointed out, it is that section which I have great hopes will address a particularly nasty and difficult issue, which is being buried in our community at the moment, in our supported residential facilities—or some of them. I do not mean to disparage all those facilities but I certainly know that it has occurred in more than one. Continuing:

(f) the person is unable to understand the nature of the activity.

That goes a long way to dealing with people who have an intellectual disability, as does the previous clause, because often you will find people who may look like adults and who may even, on the surface, sound like adults, but who really are assessed as having the capacity of quite a young child in terms of their ability to understand the nature of what is going on. Then we see the next paragraph:

(g) the person agrees to engage in the activity with a person under a mistaken belief as to the identity of that person.

Again, I do not want to be comical about this but one can imagine that circumstances can arise where one might think one's own partner was getting into bed and somebody else entirely might be getting into the bed.

Mr Hanna: It has happened before.

Mrs REDMOND: As the member for Mitchell says, it has happened before—and there certainly have been cases of it. Indeed, all of these circumstances are things that have arisen in cases. The last one is:

(h) the person is mistaken about the nature of the activity.

I guess that may well be tied to a couple of the others—about their condition or level of impairment—that are already listed above.

Mr Hanna: It is about doctors as well.

Mrs REDMOND: That is right. So, as the member for Mitchell points out, it could include doctors, for instance, where a person might be consenting to an examination but in fact the doctor could be examining for a prurient purpose. There is an example given in the bill itself:

A person is taken not to freely and voluntarily agree to sexual activity if the person agrees to engage in the activity under the mistaken belief that the activity is necessary for the purpose of medical diagnosis, investigation or treatment, or for the purpose of hygiene.

So, it does specifically cover that circumstance. I guess my hesitation about this particular aspect of the bill is simply that I am always somewhat hesitant about trying to codify common law principles, because we all know, and particularly those of us who have practised anywhere in the law, that every set of circumstances is different. To try to codify leads, in my view, to the risk that a new set of circumstances that we have not actually thought of could arise and could legitimately belong within the realm of what we are trying to target but be left out simply because it has not come within the codifying.

As I have already read, subclause (3) commences 'without limiting subsection (2)', so theoretically this list is non-exhaustive. However, I have no doubt that, were circumstances to arise where a good defence barrister could legitimately say that it does not fall within any of the paragraphs (a) to (h) I have read out, they may well be able to argue successfully for an acquittal.

That said, on balance it seems to me, and to the Liberal Party, that it is at least better to take some action to seek to address this issue of rape and sexual offences which, as I said, has been a neglected area of the law and one where the conviction rates, and even our reporting rates, have been really a lot lower than we know the incidence of the activity to be in our community. Before I leave this topic in the bill, I want to go through the next clause, reckless indifference, which is defined as the person being:

...aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, and fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent...

What is interesting about the wording of that paragraph is the 'and' in the middle. So, we have the fact that another person does not consent to the act, or has withdrawn consent to the act, if he or she—that is, the perpetrator—is aware of the possibility that the other person might not be consenting, or has withdrawn consent, and fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent.

I am a little puzzled by the word 'and'. I think that perhaps it should be 'or'; nevertheless, it requires both components. It seems to me that there is some risk there in terms of proof from the prosecution's point of view—that they have to show that they are both aware of the possibility that the other person might not be consenting and that they failed to take reasonable steps. The alternative is: 'or' that the person in question 'does not give any thought as to whether or not the other person is consenting to the act, or has withdrawn consent to the act'.

It is a complex concept simply because, at its easiest, it is the case that someone says no and there is a brutal, threatening attack resulting in a rape and it is clear that it has indeed been rape. This bill seeks to address the grey area of: where does consent arise; how does consent arise; and what is the obligation upon the alleged perpetrator to ensure that consent is freely given? I see that we could get to a situation where sexual intercourse simply cannot take place without extensive questioning and commitment about the willingness and free voluntary consent of the people about to engage in that activity. As I said, on balance I believe that the overall thrust of the legislation is such that it will probably be an improvement, although I wait to see what happens to it once it goes into court and a few cases are heard on it.

I turn quickly to the other areas of reform in the bill, the first being the reform of the offence of persistent sexual abuse, which is already an offence under section 74 of the Criminal Law Consolidation Act. At the moment, it requires three separate incidents of sexual abuse to constitute the existing offence of persistent sexual abuse. One of the difficulties with that, of course, is that, where there are multiple offences against the same child—depending on the age of the child, when the offences took place, how long after the allegation is made and the matter is being prosecuted, and a whole range of things—it is obviously difficult and sometimes impossible for a child to be able to identify particular occasions when the particular contact occurred.

At present, the section requires that there be three separate incidents. So you can have an offence of sexual abuse of a child but, to fit within this current provision of persistent sexual abuse of a child, there have to be three separate incidents, and the difficulty explored by Liesl Chapman in her report is that it is very difficult to get the evidence, especially with child witnesses or adult witnesses recalling facts from long ago when they were children, as to precisely the occasions when the particular conduct occurred.

So this bill replaces persistent sexual abuse with persistent sexual exploitation, and it is designed primarily to overcome that problem. It is designed to overcome the problem where there are multiple offences against the same child. All that is going to be required is the engaging in more than one unlawful sexual act with a child over a period of more than 24 hours. Clearly, that is a much lower threshold to reach in terms of establishing the offence. So, in particular where you have a jury determining the outcome, the jury will not need to be satisfied precisely when and where an unlawful sexual act occurred, as long as it is still satisfied beyond reasonable doubt that there was more than one unlawful sexual act with that child over a period of more than 24 hours.

There are some provisions in relation to the age of the victim, and I will go through those quickly and refer to the bill as to what it says precisely. Basically, it is clear that, if a child is under the age of 16 years, no special considerations apply; but if a child is between 16 and 17 years, it will be a defence if it can be proved that the defendant believed on reasonable grounds that the child was of the prescribed age (which is 17 years). Under the age of 17 years is the normal cut-off limit for the offence to apply but it can still occur if the person is under the age of 18 years if the defendant adult is a guardian or a schoolteacher or someone engaged in education—I forget how broadly it is defined.

The bill provides that 'prescribed age' means that in the case of a person who is in a position of authority in relation to the child the prescribed age will be 18 years. In any other case, it will be 17 years. The person is in a position of authority if they are a teacher; foster parent, step-parent or guardian; or a religious official or spiritual leader, and that is a fairly broad description. It states 'however described and including lay members and whether paid or unpaid' who provide pastoral care or religious instruction to the child. Also included in the offence under the age of 18 years is a medical practitioner, psychologist or social worker providing professional services to the child; a person employed or providing services in a correctional institution or any other person engaged in the administration of the Correctional Services Act and the Young Offenders Act; or an employer of the child whether or not the work is undertaken by the child on a paid basis.

In relation to a child between the age of 17 and 18, there can still be persistent sexual exploitation of the child if the perpetrator is one of the people in the defined categories; otherwise this offence can occur only up to the age of 17. It will not matter if someone asserts consent in the case of a child who is under the age of 16. Again, I have some difficulty with that because of the nature of the child sex offenders registration legislation.

I have mentioned in this chamber before the fact that it is reasonably common for a boy over the age of 18 to have a girlfriend under the age of 16. They both would say that they were mutually consenting to sexual activity but, notwithstanding that, it remains an offence. I have no particular problem about that except that we would require that person to be registered as a child sex offender. I do not believe our community is ready to move to the idea of saying it is not still an offence. Most young men do understand that there is an age below which they should not be engaging in sexual activity with a girlfriend, but I have considerable misgivings about having them registered as child sex offenders.

I believe that child sex offences should be restricted to those who have a prurient and inappropriate interest in young children, not someone who happens to have fallen for a girl a couple of years younger who is a genuine girlfriend. It is the case that we needed to address the problem that was already evident in our legal system in terms of being able to appropriately prosecute the offence of sexual exploitation of a child. I note that the maximum penalty for this offence is life imprisonment. Certainly, at its most horrific, that is probably not a bad thing. That is the first of the changes contemplated by this bill.

The second one is the severance of trials for sexual offence proceedings. At present, in any sort of criminal proceeding there is a provision under section 278 of the Criminal Law Consolidation Act that allows a judge to order a separate trial on any counts if he is of the opinion that the accused might be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information or if it is desirable for any other reason. The problem that has arisen is that, if a perpetrator has been accused of a series of rapes against a number of different victims, the separation of those trials often can mean that one by one, each one having to be proved beyond reasonable doubt on the evidence and with a different jury—all those things which are meant to enhance our legal system—the outcome in sexual cases where there are charges against different children, and the effect of severing the trials into separate trials, might be that each jury might not hear evidence about an offence in its full context.

This bill makes an exception to the provisions in section 278 of the Criminal Law Consolidation Act for sexual offence cases by creating a presumption that counts charging sexual offences by the same person against different alleged victims that are joined in the same information are triable together. In other words, it will limit the circumstances in which a court or a judge can sever a trial. That will be a rebuttable presumption but, fundamentally, the idea is that, if it is a case of sexual offences against a child, the presumption will be against severing. The presumption will be in favour of keeping all the various victims in the same trial process and the defendant having to answer all those charges in the one trial so that the jury gets a full picture of what is being alleged to have occurred, rather than getting perhaps a small sliver of it and a different jury getting the next little sliver of it. That is to be a rebuttable presumption, but only where evidence relating to a count against one alleged victim is not admissible in relation to any other count or any other alleged victim, and it has to be evidence beyond merely the defendant's propensity to do such things. So, there will be circumstances in which cases can now be severed.

I do not feel competent to go into great detail about actual circumstances where a judge might still order the severance of a trial, but suffice to say that there will be circumstances where a judge could decide that, because evidence against a particular victim will not be admissible in another trial, that particular one has to be severed and heard separately. The bill also provides that a judge may not have regard as to whether or not there is a reasonable explanation consistent with the innocence of the defendant when deciding whether to allow or to exclude evidence. So, even if the judge thinks that there is a possibility that the evidence is concocted or is the result of collusion, he may not exclude the evidence from trial, but he has to leave the determination of the value of that evidence for the jury to decide.

I understand that we are not this week dealing with the other bill that goes hand in hand with this, that is, the amendments to the evidence law, which is, I think, the evidence miscellaneous amendment legislation. That bill goes hand in glove with this to make the relevant changes to what directions judges can give, particularly in rape and sexual offence cases—and, indeed, I think the Attorney in his second reading speech referred to what has to be left as being, 'the Attorney, subject to appropriate direction from the judge'. However, I note that, in his press release on 6 February last year (so, just over a year ago), the Attorney stated:

Judges will be prevented from giving what I consider to be inappropriate warnings about the value of evidence of an alleged rape victim just because of the time it has taken to bring a complaint or because the evidence is uncorroborated.

I will not go any further into that, because it properly belongs in the other legislation. However, suffice to say that the effect of this second amendment is really to ensure, so far as is possible, that alleged rapists are called to account and are unable to utilise the procedure that currently exists in section 278 of the Criminal Law Consolidation Act to their benefit and the disbenefit of the victims of their actions by having each trial heard separately by a different judge and a different jury and, therefore, none of the people assessing the evidence hearing all the evidence in its context against a particular offender.

I know that there are members of the defence bar who, understandably, are concerned about some of these provisions. As I said, my discussions have indicated largely that, with respect to the aspect of rape law at least, the law really does not vastly change the existing common law, but seeks to codify it. Whilst I have some misgivings about attempts to codify because of the risk that new circumstances might arise that have not been contemplated by the legislators and, thereby, we might risk someone not being convicted who properly should be convicted, I am unable to come up with any specific ideas as to what circumstances might exist that would not fit within the definition proposed and the non-exhaustive list in clause 5 as to where consent will be considered not to have been freely and voluntarily given.

Whilst I have some misgivings about that approach, I do agree (and the Liberal Party does agree) that we need to do something to address the shortcomings of the system in terms of securing convictions against alleged rapists. Given that Liesl Chapman—who is a very experienced practitioner (not an academic) in the law—thoroughly researched this issue and came up with a series of recommendations, I indicate that the Liberal Party will be supporting the passage of this bill through the house.

Mr HANNA (Mitchell) (11:58): I am speaking today in relation to the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Bill. I support this amendment of the rape and sexual offences law. In a particular way, it is very satisfying to see this legislation being debated in the House of Assembly today. I think that it was about the end of 2002 that a woman came to see me regarding the state of rape laws and with a concern about the lack of convictions in rape cases. I responded by proposing that the Legislative Review Committee of the parliament investigate why there was such a low rate of convictions in rape cases and what might be done about it.

The Legislative Review Committee over a period of 18 months or more heard evidence and deliberated upon this problem. The committee came up with a series of recommendations, one of the most important of which related to the law of consent particularly as it applied to the beliefs of the alleged rapist. It was considered important that the accused person had not only an honest belief in consent but also that that consent be reasonable for the person to be acquitted on the basis of consent. The recommendations of the parliamentary committee were published prior to the 2006 election.

I am pleased to see that the Labor government then took up the committee recommendations and provided them to a barrister, Ms Liesl Chapman, for consideration. The report of Ms Chapman more or less endorsed the recommendations of the parliamentary committee. The government went further and brought legislation into the house. That legislation lapsed, but then a few months ago the government introduced the legislation which we deal with today. In summary, it has been a lengthy and tortuous process. However, at the end of the day, this is a sound package of reform in this area of the law. Both the Attorney-General and the shadow attorney-general have gone through in some detail the content of the legislation, and they have entered into some analysis of the changes. I do not propose to do that in detail.

I have already mentioned that one of the most important areas of changes in relation to belief about consent is whether a jury or a judge should consider whether the accused's belief in consent should result in acquittal. My own view is that it was not necessary to identify a range of possible circumstances that vitiate consent—that is done in the bill. I think it would have been sufficient to necessitate a finding of an honest and reasonable belief in consent for an acquittal to arise, but I am not opposing anything in this legislation. I am not bringing forward amendments. I can see how some things might be improved or I might have a different view about some of the approaches that are taken in the measure but, on the whole, I think it is a very fine piece of reforming legislation. I am not going to draw out the discussion any further.

I conclude by mentioning that the most important people when we consider this legislation are the men, women and children who have been subjected to rape or sexual offences of some other kind. In considering those people, we also have to bear in mind those fundamental principles of the common law which preserve people's rights. We have the presumption of innocence, for example. We have the requirement that offences be proved beyond reasonable doubt. In the days of a populist approach to criminal activity, those principles are under some risk of erosion. However, in this particular area of the law, I am glad to see that the Labor government has taken a tough approach. I endorse this reform package.

The Hon. R.B. SUCH (Fisher) (12:03): The member for Heysen is a woman of few words: I thought she was going until lunchtime! It was a quality speech rather than one of quantity, perhaps unlike many of mine. This is very important legislation, and I support it with one concern which I will address in a moment. I think this bill is dealing with rape and sexual offences but I think we need to look at sexuality in the context of our society overall and we need to recognise that a lot of double standards are being practised and that there is much hypocrisy.

If we look at media publications (not just magazines) which are targeted at young people in particular, we see that there is an emphasis on sexual activity and the suggestion that if you are not involved in sexual intercourse every hour of every day somehow you are inadequate or not contributing to society or your own wellbeing. Sadly, young people often are influenced by that sort of attitude and what we get is an unrealistic expectation, often based on ignorance and lack of understanding, by young people. It is not just young men, but many of them feel as though they have to prove themselves, and you get all these stereotype images involving women and girls which suggest that they really want sex even if they say no. Young men—teenage males, in particular—do not source a lot of their information from the sort of magazines young women read; naturally, they have a different focus on life. Young women tend to be better informed about relationships because they talk about them and they interact; however, they also have access to magazines which, while they may exaggerate some aspects of human activity, nevertheless do convey information that can be useful in informing young women about sexuality and relationships. I am not aware of equivalent types of magazines for young males, and so young men do not get that same information. This is something of which we need to be mindful, and it is one of the reasons I am a strong advocate of proper sex education in schools and why I have been such a strong supporter of SHine and the programs it has run in schools.

Some of those programs have been refined—there was criticism by some people, and SHine refined them—but I think it is important that young people, in particular, not only learn the biological and physiological aspects of humans but also understand relationships and what it is that makes us tick as men and women. Studies done overseas show that countries that have well-informed and comprehensive sex education programs in schools have lower rates of unwanted pregnancies and abortion, and I do not know anyone who would not welcome that. However, in countries such as the United States where (like us) they tend to have what I think is a distorted view of human sexuality, there is often a lack of adequate sex education, with high levels of abortions and unwanted pregnancies and so on.

I think there is a lot that needs to be done in the context of the wider community. Obviously this bill cannot do that, and it was never intended to. However, from a male perspective one thing that concerns me greatly in our society is a lack of respect for women. I am not suggesting that men should treat women as some sort of artificial beings, but there is a great responsibility on parents (and not just fathers) as well as other members of the extended family to instil, particularly in their boys, a respect for women. When we talk about rape and sexual assault we are talking about someone's mother, sister or daughter; we are not talking about just a statistic, about something that is without feeling or emotion. I believe that mothers, fathers, and all other members of the wider family have a responsibility to ensure that, among young men in particular, there is a clear understanding of and respect for women.

That is often not helped by the behaviour of some women. I am not one to say that it in any way justifies a sexual assault, because it does not, but I see women getting around in T-shirts saying, 'Give me a few more drinks and I will do this or that', and displaying comments drawing attention to their breasts and so on. People may say that these are flippant comments but they do not help in trying to impress upon young men a respect for women. Some of the women themselves do not help; they actually demean women overall.

We need to put greater emphasis on getting young men to understand that women are more than just sexual objects. They have sexuality but it does not mean they are an object. As I said earlier, the media—in its whole diverse presentation—often presents women as simply pieces of flesh. That is a great insult; it demeans women and results in behaviour towards them which is unacceptable.

In some cultures women are required to be fully covered. In my mind, it is a form of perverse control, which is designed to keep women out of the limelight, out of education, and basically locked away. The argument used in defence is that they are protecting women, but I see it more as a form of control. But things have certainly changed. At my local high school the uniform for secondary school girls includes shorts; and they are very short. I do not believe that that in itself implies anything; it is probably more practical in terms of the clothing that they wear. The argument about whether someone is covered, partially covered or totally uncovered in no way justifies reference to women as sexual objects.

More specifically, in relation to rape, I know that this bill does not deal with the matter that has really concerned me for some time. I believe there is another bill to come that may deal with it. I took an interest in the Stingel v Clark case in Victoria, in which a woman took civil action against Geoff Clark. I read part of the transcript of that civil case. During the trial, Stingel was asked what was the size of her vagina. I find that completely outrageous and offensive. It has nothing to do with whether or not someone has been raped—it is completely irrelevant. She was also asked whether or not the offender was circumcised. Once again, it is completely irrelevant whether or not a person is raped by someone who is circumcised. They were actual questions posed to that woman in court. I find that highly offensive and outrageous.

It was one of the issues that I took up with the Attorney. I asked him if those questions could be asked here in court. He said that they can, but that they would be dealt with in legislation that he is drafting; I understand that it will be coming shortly, and so it should. That sort of nonsense is similar to whether someone has a past sexual history. It is completely irrelevant whether you have had 10 boyfriends or if you have been a prostitute—rape is rape, and sexual assault is sexual assault.

It highlights my concern in relation to the definition. I think the term 'sexual assault' tends to diminish the seriousness of the attack on a woman, because touching a breast is sexual assault. In the media, people think, 'Oh, sexual assault—it could've been someone touching them on the breast'—which is bad enough—but it can also cover rape. I am not saying that touching the breast is acceptable—it is not—but I think that people need to be careful when using the term sexual assault, that they do not diminish the seriousness of what has happened to a woman, usually—not always but often.

An issue of concern in this bill is the idea of withdrawing consent part way through intercourse. My knowledge of the law is not as great as that of the Attorney or the shadow minister. I am aware that in Western Australia men have been convicted of rape on the basis that they were part way through sexual intercourse and did not stop. I am interested in the Attorney's justification for that. I think that the everyday person—male or female—and I have spoken to men and women about this—finds it hard to understand how, if intercourse is underway, someone can say, 'Stop the world, I want you to get off', and how that is really a reasonable action that could result in someone being charged with rape. I am unsure how one would easily prove it in court. However, it has led to convictions in Western Australia where intercourse is underway and the female—I assume it is in a female—says 'No more.'

In summary, this bill is a step in the right direction. We hear people say, 'Look, there are not enough convictions for rape.' We do not want people convicted who are innocent, but we want the guilty convicted. One area not tackled by this bill is the serious situation in relation to juvenile offending when it comes to sexual assault on young women. This was highlighted to us on the Juvenile Justice Select Committee; that is, many young men are getting off and walking out of court because the system and the family conference model cannot adequately deal with sexual involvement when someone is pleading not guilty to having engaged in sexual intercourse without consent.

It is a step in the right direction, and I commend the Attorney. It is time to get it under way to see whether we can get some protection for men and women—mainly women, because men are the main offenders. They need to lift their game and show more respect for women and it needs to start at an early age. It is the responsibility of us all to convey that message to our young men.

Ms THOMPSON (Reynell) (12:16): I wish to commend the Attorney-General and the Minister for the Status of Women for this important initiative as part of a package of bills that this government has produced to improve the status of women under our laws.

All members in this house recognise that we do not always behave in a civilised manner in our community in relation to matters of sexual relations, whether between men and women or people of the same sex. We have been inclined not to talk about it sufficiently in our community, resulting in very inappropriate messages being received by young people—both offenders and those offended against—in relation to their own sexual dignity and their ability to determine whether or not they want to engage in certain conduct.

The issue of domestic violence also relates very closely to the issue of rape. We need to bear in mind the continuum of behaviours that exist from issues such as sexual harassment through to rape. Behaviours that we call sexual harassment result from the same lack of respect, power differences, etc., as rape.

The legislation now before the house sets down some new and important parameters, but from my perspective it is not the end of what we need to do. We need to do much more to enable people who have been violated in various ways in connection with their sexual roles and their sexual life to have control and choice about the way in which they go about dealing with the offences that have been committed against them. We need to give people who have been offended against far more say in how they are treated. In this regard, restorative justice practices are important and the restorative justice practices that already exist under the Equal Opportunity Act are also important.

These practices and the history we have of successful participation in conferences, etcetera under the Equal Opportunity Act will provide us with models for dealing with some of the rape and violence-related crimes in future. This is a really important step in laying the foundation. It describes more broadly some of the crimes that occur mainly against women, but also against men, than has been the case in the past. I commend the ministers concerned for their initiative and thank the opposition for their support.

Mr PISONI (Unley) (12:19): I too support the legislation. I see this as a first step in protecting women—and let us make no bones about it: this is predominantly a bill that will protect women and younger women, in particular. As the father of a daughter who is about to turn 14, obviously this is very relevant to me and my wife and our family. I say this is the first step because community attitudes need to change. If community attitudes do not change in regard to the way that men consider women in a lot of instances, then there will need to be an awful amount of resources poured into implementing this legislation.

I would like to see a community that sees men and women as equal. Women should not be lectured about how they dress. If my daughter feels as though she wants to wear the latest fashion, and if the latest fashion happens to be quite revealing, well, then that is up to her. She should not be held responsible for somebody else's behaviour.

There seem to be some attitudes in the community where young women, for some reason, because of the way they behave, are responsible for young men's behaviour. That is a line of thought that I have a lot of difficulty understanding. I thought we live in a society where we hold everybody responsible for their own behaviour.

Even the member for Fisher touched on it. I was a bit surprised to hear him raise his concerns about the way that some young girls dress because it is completely irrelevant how a young girl dresses. It is completely irrelevant. She can run down Rundle Mall naked if she wants to and there should be no expectation that she wants sex.

I think until that attitude in society changes we are not going to see women protected. Attitudes do change and there are lots of levers that governments can tweak, if you like, to change attitudes over the years. Changes to attitudes are a bit like the maturing of society. I can remember, barely remember, when we had capital punishment in this state. We have moved on from that. That was a cultural thing. It was part of our society that we expected that that would be the way that people would be punished.

It was very barbaric, very definite, but as a society we have realised that we were doing that wrong, that we should not have capital punishment. Consequently we do not have capital punishment any more. It was removed by law and I think it is fair to say that it is an expectation in society that we treat each other in a more civil manner these days.

What I am saying to the parliament today is that it is great to have these protections, particularly the amendment of section 57, 'Consent no defence in certain cases', which provides protection for those under the age of 18 who are under the care or under the influence of certain people. That is a very relevant amendment, I would suggest, because these days families are made up of a broad range.

There are a lot of families who do not have fathers and a lot of fathers who are not engaged with their families. They may very well have daughters who are not getting the type of fatherly affection that they might like or expect from their father and consequently they might look for an alternative authority figure to turn to, whether that be a priest, an employer or somebody in their volunteer organisation.

They might feel that, because they are getting some social intimacy from this person that they are perhaps not getting from their parent, if that person puts the hard word on them for sexual activity they have some form of obligation. This legislation protects them in those situations, so I am pleased to see it. So, I stand here as a member of the opposition in support of this bill.

I would like to tell a story to illustrate how much more work we have to do in the community to protect those who are most vulnerable, particularly when it comes to sexual assault. A lady in my electorate was married at the very young age of 16, and her husband was 40 at the time. That in itself, one would argue, was an arranged marriage in a culture familiar with that type of relationship. She was too young to realise, of course, that perhaps there was something not quite right with that relationship. A 16 year old girl was really in no position to make decisions for herself. However, it was not until she was 30 years into the marriage that she learnt through her granddaughter that her husband had been interfering not only with her daughters but also with her grandchildren. When she asked her daughters to participate in getting some justice—and, of course, she needed closure because, as the mother, she felt so guilty that this had happened under her roof—because of the stigma associated with this type of crime they did not want to be exposed to the abuse, if you like, they knew they would experience from defence lawyers in court.

Consequently, we have a woman who feels that her entire life has been wasted and that she has disappointed those in her family to whom she was so close and loved so dearly and, because of the actions of her ex-husband (who is now into his 80s), she cannot get closure and she no longer has a complete family. It is a very sad story, and it is more evidence that legislation is a good step, but it is not enough. We need to engage the community and we need to change attitudes. I hope that, as leaders in our community, we can move forward in changing those outdated, barbaric attitudes that still exist amongst many of our fellow citizens.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (12:28): I rise to speak on this bill, which was introduced in early 2007 as a result of considerable consultation and following the published report of Liesl Chapman in 2006. It was to be a bill that would not be presented for debate immediately so as to ensure again that significant time would be allowed for consultation.

In relation to the reform of rape law in South Australia, I, like many others, have seen a significant change in how we treat, define, prosecute and help to prevent rape offences from occurring. I am mindful of the period pre-1970s when we allowed for the provision of conjugal rights to remain in our legislation (until its removal) and the capacity for women to be raped within marriage, until legislation was introduced to include that specifically and for those women to be protected. We went through a period in the 1980s where we renamed rape and some other sexual offences at the lower level in an attempt to invite, induce or encourage offenders to come forward and admit their guilt.

I am not certain how successful that has been, to be frank; nevertheless, we have tried that. We have removed the requirement for victims of rape and serious sexual assault to give oral evidence at the committals on the basis that it is a difficult enough exercise for them to come forward and give their evidence during the trials. Indeed, to require them to do it twice is almost unconscionable. We have listened to the arguments against such a requirement, and legislation has amended it.

Regarding sexual assault on children, it is fair to say, I think, that in the era pre-1980 they got very little oxygen, attention, positive support or any provision in our legislation. However, we have moved significantly in this state to provide for children—especially children who are victims of child abuse and, in particular, sexual abuse—to be able to give evidence away from the view of the defendant, who we quite often hear is a person known to and/or related to the victim. Commonly, this is a female child with the father or relative sitting in the dock whom they have to face. Judges have been given a discretion to permit video evidence and/or children being in a separate room, or at least shielded from the defendant, when they give their evidence. There has been quite a significant advance over the last 20 years in relation to child sexual assault and in the last 30 years—perhaps 35 years I would go so far as to say—in relation to rape.

I do not consider rape to be a sexual offence: I consider it to be a gross act of violence. It always concerns me that we package law reform in such a way as to include rape with other sexual offences. I make that point but it is not a criticism of the government; it is something that has occurred over a long period of time. I always view with interest sentences imposed on offenders for acts against property, involving significant penalties—whether it is a pecuniary penalty or whether it is imprisonment—and, yet, someone who has been convicted of raping another person frequently receives a sentence of less than three or four years with a non-parole period of less. That does concern me. I must say that there is one little lighthouse on the horizon: there was a recent decision, I think, of the Hon. Justice Michael Boylan, who delivered a sentence of nine years for an offender who had been convicted of rape.

I think it is important to remember, when we are reviewing legislation on rape, that this is a serious and obscene act of violence and it should always be treated as such. I do not think there is anything sexual about it at all—except as to the organs of the victim which are usually grossly interfered with in the course of the act—but it is to be understood that this is a gross act of violence.

The purpose of this legislation today, in respect of rape, is really a codification, as has probably been identified by a number of the previous speakers. I am always a bit concerned about a 'bill of rights' type of approach to codifying these things when we have had significant advances for both the defendant and the victim in the fair prosecution of these matters. It means that we sometimes leave it open when we try to introduce an exhaustive and comprehensive piece of legislation to cover hundreds of years of legal precedent. However, I am mindful of the fact that the government and a number of other bodies have considered the matter at length, as has, indeed, the member for Heysen, representing the opposition. I am confident that with that type of scrutiny that it is something that is worthwhile supporting, and something we can leave to the judiciary to implement—hopefully, without restriction—as a result of the terms that will be imposed on the implementation of this legislation.

There is one aspect I still do not understand. I note that the government has tabled an amendment to provide a new definition of 'reckless indifference' in relation to the definition of the state of mind of the offender. I have not had an opportunity to review the amendment in detail, but I am sure the member for Heysen will do so. The amendment appears to include an additional clause which provides that a person acts towards someone with reckless indifference if, in fact, that person does not consent to an act or has withdrawn consent or if he or she is aware of the possibility that the other person might not be consenting, etc., but decides to proceed regardless of that possibility.

This appears to be an extra definition which will be proposed for voting. I simply say this: we have always recognised in the criminal law the concept of acting recklessly. It is considered to be in some ways, I suppose, not premeditated, obviously, if the motive is to deliberately and wilfully proceed with an act. To act recklessly is such a high level of disrespect, I suppose, for the party wounded or property damaged that we consider it to be a standard which should be considered and attract culpability, if it applies.

So, it is not a new concept where a person acts deliberately or recklessly, or even where there has been an act of criminal neglect. However, under the new definition 'reckless' will become 'recklessly indifferent'. I have to say that this legislation reminds me of the legislation that was being introduced to protect homeowners from home invasion, about which I raised a concern about how it might be applied. Several years ago, the government attempted, by legislative reform, to protect people in their homes from being victims of assault or damage caused by someone unlawfully entering their premises.

I think I raised a concern then about how that might affect people who enter someone else's property to argue about their respective marijuana crops. Clearly, the intent of the legislation was to try to protect innocent victims of home invasion—and there has been a lot of publicity about victims of home invasion. People ought to have some feeling of security when they are in their own homes.

When we came to look at that legislation, when there is an obligation on someone and when there is an expectation on another and then we start reversing the onus through the process of successful prosecution, it can become a mess. It sometimes gets to the stage where it becomes too difficult to successfully prosecute a case where, clearly, the legislation was intended to protect the victim in those circumstances. So, I raise a word of caution about the effectiveness of this legislation and the possibility that it will be so complicated that it will make it even more difficult to prosecute those who are guilty, thereby letting off those who otherwise may have been caught.

I am concerned about it. I accept that the government's intention here is to take up the important areas of law reform which have been outlined by Ms Liesl Chapman and the work that she has done in coming to this determination. So, I simply indicate my support, albeit with that concern.

The other matter I briefly refer to is the provision which relates largely to the offence of persistent sexual abuse, actually changing it to the persistent sexual exploitation of a child. I have personally been involved in representing children (victims and accused) in a number of child abuse cases, of which there has been everything from rape to sexual touching and exploitation. Whether it involves photographing or videoing a child or physical assault, there is a very broad range of instances in which children, by their very age and lack of maturity, are victims to the predatory behaviour of others.

One of the most difficult aspects of taking a reliable statement from a child, and hoping in some way that it will be consistent in subsequent proceedings, has been the fact that it is very difficult for a child to recall dates, times and the specifics of offences. So, whilst it is reasonable in adult cases and mature aged children—there is a varying provision here for 16 and 17 year olds—for those concerned to be tested on the validity and reliability of their evidence based on being able consistently to repeat specific details surrounding an act or acts in relation to the offence, it is a level that is of such a high standard that it is unrealistic to expect those details to be provided by children.

I think that this is an important initiative, because essentially it means that in cases where children cannot say exactly on what day they were touched, how many times they were touched, where they were touched, or provide the sequence of repeated touchings, they are able to still proceed with the case and there can be a successful prosecution. Ordinarily, at the moment, those cases most often never even reach the courtroom because the advice of the prosecuting representatives at the time is that it would simply not be in the best interests of the child to proceed with a case that was clearly going to fail.

So, after all those factors are eliminated, bearing in mind the damage that can be caused to a child in having to go through litigation, we then come to the case which otherwise is not prosecuted because of the unreliability of the evidence being detailed by a child witness but which, to some degree, I think, is overcome by this initiative, which I think is an important one.

Other speakers have referred to the severance of trials. This is another area which I think has some merit, and we will see how it operates in its implementation. I think it is something that should be carefully reviewed. I would hope that the Attorney-General and/or his department will be keeping a strong watching brief on how successful these amendments are and how they are going to effect both a successful prosecution and, I think to some degree, the lessening of harm to victims by over-exposure to the judicial process. So, with those comments, I indicate my support for the bill.

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs) (12:45): I thank each of the members who has contributed to the debate. The foreshadowed amendments will try to clarify the mental element in sexual assault, especially reckless indifference. Also, the foreshadowed amendments will deal with the interaction of the drunks defence with the law on sexual assault. I hope that it will have the effect of clarifying it.

The member for Heysen is right to point out that the bill contains no special offences for institutional carers who sexually abuse intellectually disabled people in their care; a commentator from Stop Rape Now suggested that it should, along the lines of the offence in Victoria. In South Australia, there are already laws about sexual offences with intellectually disabled people.

First, it is an offence of unlawful sexual intercourse with a maximum penalty of 10 years' imprisonment to have sexual intercourse with a person knowing that the person is, by reason of intellectual disability, unable to understand the nature or consequences of sexual intercourse, and I refer to section 49(6) of the Criminal Law Consolidation Act. Consent is not a defence, and the house should note that, if the intellectually disabled person is a child, the appropriate charge is unlawful sexual intercourse with a child, and that offence carries maximum penalties ranging from 10 years to life, depending on the age of the child.

Secondly, it will aggravate an offence of indecent assault if the offence constituted an abuse of the offender's position of authority, or position of trust over the victim, or if it can be shown that the defendant knew that the victim was, at the time of the offence, in a position of particular vulnerability because of physical or mental disability. That is the celebrated and recently debated section 5AA of the Criminal Law Consolidation Act.

The bill takes into account the intellectual or mental capacity of a victim by defining consent to sexual activity for any sexual offence, in which consent is an element, in terms of free and voluntary agreement in saying that a person is taken not to have consented to sexual activity when 'the activity occurs while the person is affected by physical, mental or intellectual condition or impairment such that the person is incapable of freely or voluntarily agreeing'.

The companion Statutes Amendment (Evidence and Procedure) Bill also makes special provision for the taking of evidence from people with intellectual or mental impairment. Although the model criminal code officers committee recommended separate sexual offences committed against mentally impaired persons by carers, I do not believe that there is a need for this. Our current law will catch this conduct without requiring proof of a relationship of care.

Victoria has enacted two sets of special offences for what might be described as institutional sexual crime: sexual offences against persons with a cognitive impairment by providers of medical or therapeutic services and sexual offences against persons with a cognitive impairment by providers of special programs. Again, this conduct—

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: Again, I would argue that this conduct is already covered in South Australia by the offence of unlawful sexual intercourse if the alleged victim is intellectually impaired, but we will discuss it further in committee.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 4 passed.

Clause 5.

The Hon. M.J. ATKINSON: I move:

Page 4, lines 30 to 41—

Clause 5, inserted section 47—delete inserted section 47 and substitute:

47—Reckless indifference

For the purposes of this Division, a person is recklessly indifferent to the fact that another person does not consent to an act, or has withdrawn consent to an act, if he or she—

(a) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility; or

(b) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed; or

(c) does not give any thought as to whether or not the other person is consenting to the act, or has withdrawn consent to the act before deciding to proceed.

In consultation on the bill it became apparent that the definition of reckless indifference could be interpreted in a way that gave it unintended effect. This amendment seeks to remove any ambiguity in the definition. The bill is intended to define reckless indifference for rape in a way that reflects the current common law. In Banditt v R 2005 the High Court held that the test for recklessness for rape is different from the one for other offences in that it includes a failure to give any thought to whether or not the other person is consenting and indifference as to whether or not there is consent. Conventional definitions of recklessness do not ordinarily include a failure to give any thought to the consequences of one's actions of itself because recklessness ordinarily requires foresight of risk and a conscious but unreasonable decision to take the risk. The High Court has taken the view that for rape a failure to give any thought to the question of consent is always reckless, whether or not had that thought been given the accused may not have acted the way he did.

That is the approach taken in the bill in the proposed section 47(b). I do not seek to change the substance of that subsection in this amendment. The High Court also held in Banditt that indifference to an appreciated risk that the other person may not be consenting to sexual intercourse is reckless indifference for the purposes of rape. The bill sought to replicate that approach in the proposed section 47(a). By section 47(a) the bill aimed for the purposes of rape and other sexual offences in this part of the act to catch any circumstances where a person, being aware of the possibility that the other person might not be consenting to an act or might have withdrawn consent to an act, decides to proceed regardless of that possibility. It does so by referring to an advertence to the possibility of lack of consent and a failure to take reasonable steps to ascertain consent.

It is possible, however, to read this as excluding circumstances where the person took no steps at all to ascertain consent. That is not what the government intended. It is important that the legislative definition of reckless indifference for rape is unambiguous in catching those circumstances also. The new section 47 that is inserted by this amendment we hope will achieve this. It will also include a reference to the decision to proceed that the person who is recklessly indifferent to the other person's consent makes, having adverted to the possibility that the other person might not be consenting or not having adverted to it at all. For the customary form of rape in section 48(1), that decision is to proceed to engage or continue to engage in sexual intercourse. For the new form of rape in section 48(2) where the offence is one of compelled engagement in sexual intercourse, sexual self-penetration or bestiality, that decision is to proceed to compel the other person to engage in one of those acts.

Mrs REDMOND: Only this morning whilst I was on my feet I was handed a copy of this amendment and, on a quick look at it, I think it probably does improve things. Interestingly, it deals with one of the issues I raised when I was on my feet. It struck me under the bill that was then before me that reckless indifference had two possible definitions: first, if one was aware of the possibility that the other person might not be consenting to the act or, secondly, consent to the act had been withdrawn and one failed to take reasonable steps to ascertain whether the other person had in fact consented or had in fact withdrawn consent to the act.

During my second reading contribution I said that the use of the word 'and' seemed potentially to create an unnecessary burdensome obligation on prosecutors because using the word 'and' would presuppose that they had to prove both elements. I notice that in paragraph (b) of the amendment the word 'and' has been substituted by the word 'but'. Indeed, I believe that it does make it read much more sensibly. A person is recklessly indifferent if he or she is aware of the possibility that the other person might not be consenting to the act or has withdrawn consent but fails to take reasonable steps to ascertain whether the person does in fact consent or has withdrawn consent to the act before deciding to proceed. What were paragraphs (a) and (b), subject to that change and the use of the word 'but', now become (b) and (c), and the inclusion now is that of being aware of the possibility that the other person might not be consenting to the act or has withdrawn consent to the act but decides to proceed regardless of that possibility.

I guess in one sense we all know what 'reckless' means; it means 'I do not know and I do not care'. That is how most people would interpret the term 'reckless indifference', but in terms of legislation we need to word these things fairly carefully because any astute defence attorney will pick up precisely on that situation and say, 'This person did not fit into what appeared as (a) or (b) in the first consideration but in fact fell fairly and squarely in what now appears as (a); that is, they were aware of the possibility that the other person might not be consenting and decided to proceed regardless.' Clearly, that is an area that the opposition wishes to cover, so I indicate that the opposition will support the amendment.

Amendment carried.

Mrs REDMOND: Section 48 defines 'rape' as being that an offender is guilty of the offence of rape if he or she engages or continues to engage in sexual intercourse with another person who does not consent to engaging in sexual intercourse or has withdrawn consent to the sexual intercourse, and the offender knows or is recklessly indifferent to that fact. Does the law recognise a point at which the withdrawal of consent is simply not able to be recognised in the law?

Progress reported; committee to sit again.

[Sitting suspended from 13:00 to14:00]

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