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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

Committee Stage

In committee (resumed on motion).

(Continued from page 1907.)

Clause 5.

The CHAIR: I recall, Attorney, that when we adjourned before lunch you had taken a question from the member for Heysen and were considering a response.

The Hon. R.J. McEwen interjecting:

The CHAIR: The nature of the question pertained to?

Mrs REDMOND: I am happy to restate the question.

The CHAIR: It was a long question.

Mrs REDMOND: The Attorney challenged me, in a way. Hearing the condolence motions after lunch, and having heard some wonderful condolence motions over the years, I think that one of the things that I want to do in my time in this house is something outrageous enough that, in 50 years' time, when they are doing a condolence motion for me, the people who are then in the chamber will not go to sleep through sheer boredom at the very boring life that I have led. To that end, I intend to accept the Attorney's challenge. The challenge was that he would take me out to dinner if I mentioned a certain phrase. I will accept the challenge to mention that phrase, but only on the basis that the Attorney agrees not to take me out to dinner.

An honourable member: Ever!

Mrs REDMOND: Ever! It was in the context of the question which I asked immediately before the lunch break, which had to do with essentially the concept of whether there is a point at which consent to a sexual act could no longer be withdrawn. The phrase—which was a phrase that in my naiveté and innocence I had never heard—was 'the vinegar stroke'. It appears from my investigations and research into this matter that it may be a South Australian country boy phrase, which I have discovered from the people who are actually familiar with it. The essence of it is that, once a participant in a sexual act reaches the point of no return, does the law actually recognise that there might be a point of no return, or is it the case that the law in this state says that, at no matter what time, a female, for instance, in a sexual act could say, 'Consent withdrawn'. That is the essence of the question, Madam Chair.

The Hon. M.J. ATKINSON: Yes, I did think about that over the lunch break. The member for Heysen and the member for Fisher wonder whether the law should provide that there are circumstances when it is unreasonable for a person to withdraw consent to sexual intercourse. I think they misunderstand the law of rape. If a person accused of rape is not aware that a person with whom they are having consensual sexual intercourse has withdrawn consent, or could not reasonably have been expected to be so aware, he will not be guilty of rape. The question of whether or not it is reasonable to withdraw consent does not arise. It is for this reason that no rape law refers to the reasonableness of the withdrawal of consent or to the expression that the member for Heysen mentioned.

Mrs REDMOND: I do not want to labour the point but it is, I think, a valid question. There could be circumstances in which a female, particularly if she wanted to create an awful lot of trouble in someone's life, could be very positive in giving consent and at a particular moment not only withdraw consent but very clearly communicate the withdrawal of that consent. My question is: does the law recognise that that may present a virtually impossible situation for the male of the species?

The Hon. M.J. ATKINSON: If it is effectively communicated to the other participant, then the law requires him to stop, but I agree with the member for Heysen that there are circumstances in which that communication may not be effective.

Clause as amended passed.

Clauses 6 and 7 passed.

Clause 8.

Mr PISONI: I have a question about the definition of the employer. Can the Attorney give me a definition of who is considered the employer? Is it somebody who is an immediate authority such as a supervisor? For example, a 19 year old working at a fast food outlet puts the hard word on a 17-year-old. Is that the employer or is the employer actually the owner of the franchise? I would like that clarified.

The Hon. M.J. ATKINSON: It has not been defined in the law. It is for the court to determine. I am sure our courts will be sensible about it.

Mr PISONI: What about in the instance of somebody working for the Public Service, for example, a trainee under the age of 18? Who would be considered as their employer and consequently would fall into this clause in the amendment?

The Hon. M.J. ATKINSON: Let me give you the whole list. I think this provision is a lot clearer and a lot more sensible than the equivalent provision in the existing law. It says 'a teacher, a foster parent, step-parent or guardian, a member of the clergy, a medical practitioner, psychologist or social worker, a person employed or providing services in a correctional institution, or an employer of the child (whether the work undertaken by the child is paid or otherwise). So I think 'employer' will be interpreted in that context.

Remember what is happening here. If the sexual intercourse is by an adult with someone under the age of 17, consent does not matter. It does not matter now but we are redefining the authority figures. What matters in this context is that someone aged from 17 up until their 18th birthday cannot consent to sexual intercourse with these people. Consent will not matter in these circumstances. That is what we are trying to achieve. So, broadly, it is where the adult is in a position of authority. I think the judges will interpret that correctly.

Mrs REDMOND: With respect, whilst I agree with the argument that the Attorney is putting, I think the member for Unley actually has a valid point in the way that this clause has been worded, because in the case, for instance, of a religious official, there is some detail gone into about this person who is providing pastoral care or religious instruction.

The point that the member for Unley makes is that in a workplace situation there can be any range of people involved in a supervisory capacity and I suspect that, rather than simply saying 'the employer of the child', it might be better to word it something along the lines of 'the person in authority over the child in a workplace (whether the work is paid or unpaid)' or something like that.

I think that the member for Unley makes a good point; that is, in a large organisation such as the Public Service, the employer could technically be the minister who is completely innocent and unaware of anything that is happening. The wrong that we are trying to get at in the legislation is to protect the young person from the person who is in authority over them in the workplace. That is at whom we are trying to get, and I suspect there is some merit in the argument of the member for Unley.

The Hon. M.J. ATKINSON: It is an interesting argument and it will be determined in the court where the black letter law that we are passing today will be interpreted as all criminal law is in favour of the presumption of innocence in favour of the accused. That is how it will be interpreted. If the member for Unley asks whether an 18 year old boy who is the supervisor of a 17 year old girl at Hungry Jack's have sex and he is charged with unlawful sexual intercourse will be regarded as a person in authority under the head 'Employer'—probably not.

Clause passed.

Clauses 9 to 14 passed.

New clause 14A.

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

Page 10, after line 28—

After clause 14 insert:

14A—Amendment of section 268—Mental element of offence to be presumed in certain cases

Section 268(3)—delete subsection (3) and substitute:

(3) However, subsection (2) does not extend to—

(a) a case in which it is necessary to establish that the defendant foresaw the consequences of his or her conduct; or

(b) except where the alleged offence is an offence against section 48 (rape)—a case in which it is necessary to establish that the defendant was aware of the circumstances surrounding his or her conduct.

Example—

A, whose consciousness is impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, beats B up and B dies of the injuries. In this case, A could be convicted of manslaughter but not of murder (because A is taken to have intended to do the act that results in death but not the death).

The new offence of rape in this bill will not convict a person who does not have and should not be treated as having the relevant intent to commit the crime. In jurisdictions where all that is required for rape is an objective belief in consent, self-induced intoxication is irrelevant and cannot be used as a defence to rape.

In jurisdictions such as South Australia in which rape is not based on an objective belief in consent and where, as by this bill, there is a compromise between a fully objective and a fully subjective approach to rape, self-induced intoxication will be available as a defence only if rape is classified as an offence of specific intent. Until the decision of the South Australian Court of Criminal Appeal in R v B, MA in early November 2007, rape has been treated as an offence of basic intent, thus denying a defence of self-induced intoxication. However, the majority in that case suggested that rape is an offence of specific intent because consent to sexual intercourse is a circumstance surrounding the defendant's conduct.

If it is now the law that rape is an offence of specific intent, self-induced intoxication can be a defence to it. A person charged with rape could use the drunk's defence to deny that he knew whether the other person consented to sexual intercourse. That would be so under the current definition of rape or under the definition in the bill. This amendment seeks to prevent that result. It changes the law of self-induced intoxication as it applies to rape as a special exception for this particular crime only.

The statutory self-induced intoxication laws are themselves an exception to the common law. At common law a person is liable for his conduct if he acted voluntarily and had the relevant intent. This means, among other things, that a person is not criminally liable for his or her conduct if his consciousness of what he was doing was so impaired that he could not be said to have acted voluntarily or to have formed the relevant criminal intent.

Progress reported; committee to sit again.

At 18:00 the house adjourned until Wednesday 13 February 2008 at 11:00.

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