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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-02-26 Daily Xml
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CRIMINAL LAW CONSOLIDATION (RAPE AND SEXUAL OFFENCES) AMENDMENT BILL

Second Reading

Second reading.

The Hon. P. HOLLOWAY (Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning) (15:28): I move:

That this bill be now read a second time.

I seek leave to have the detailed explanation of the bill inserted in Hansard without my reading it.

Leave granted.

This Bill is a result of the Government's review of South Australia's rape and sexual assault laws that began in 2006 with the issue of a discussion paper. An earlier version of the Bill, with the same title, was introduced to Parliament on 8 February, 2007 and allowed to lapse when Parliament prorogued to enable extended consultation.

The Bill amends the Criminal Law Consolidation Act 1935 ('the Act') to—

reform the offence of persistent sexual abuse;

reform the offence of rape to include a continuation of sexual intercourse when consent is withdrawn and to include compelled sexual intercourse or bestiality;

introduce a new offence of compelled sexual activity;

define reckless indifference to consent to sexual acts;

define consent to sexual activity and set out the circumstances in which consent is to be taken to have been vitiated;

reform the offence of unlawful sexual intercourse;

reform the offence of incest;

reform offences with animals;

reform the law on severance of trials for sexual-offence proceedings;

update references to sexual organs in the Act to include surgically-constructed or altered organs.

It makes related amendments to the Child Sex Offenders Registration Act 2006, the Correctional Services Act 1982, the Criminal Law (Sentencing Act) 1988, the Evidence Act 1929 and the Summary Procedure Act 1921.

The aim of the Bill and parts of the Statutes Amendment (Evidence and Procedure) Bill 2007 is to help reduce sexual violence and encourage victims of sexual violence to report it. Together, these Bills will clearly define the boundaries of lawful and unlawful sexual behaviour, require courts to explain the law to juries in a way that does not reinforce unfounded stereotypical beliefs about the way people respond to sexual violence and the circumstance in which it occurs, make it less frightening for alleged victims of sexual violence to give evidence in court and reduce delays in trials of sexual offending against children.

There are many misconceptions about sexual offending that are brought into the jury room. They can have a devastating and unwarranted effect on the conviction rate.

For example, although many people know that the most likely victims of sexual offences are women, children and physically or mentally vulnerable people, many think a sexual offender will be a stranger to the victim. In fact, the victim will often know the alleged offender.

Similarly, many people think that if there are no signs of physical resistance to sexual activity it must have been consensual. But sexual offending often occurs in situations where there is unlikely to be any physical sign of violence. Obvious examples are when the victim is under threat or duress or is unable to resist because unconscious, asleep or under the influence of alcohol or a drug. Less obvious examples are when the victim consents because confused about the nature of the activity or mistaken about the identity of the other person.

Ignorance of what victims of sexual assault actually experience often makes it difficult for jurors to understand or believe what a victim says. People commonly find it hard to understand why a person did not report a sexual offence immediately and laws on jury directions have traditionally been based on the incorrect premise that the less immediate the reporting, the less likely it was that the sexual offending took place. There are many valid reasons why a person might not report a sexual crime immediately - fear of retribution (particularly in violent family situations), shame, trauma or shock, isolation being just a few of them.

The Government recognises that the incidence of sexual violence in our society is not reflected in the number of sexual offences reported to police or prosecuted in our courts and that inbuilt misconceptions about sexual offending in our laws are partly to blame. These amendments seek to deal with that problem without detracting from fundamental principles of criminal responsibility.

AMENDMENTS TO THE CRIMINAL LAW CONSOLIDATION ACT 1935

Definition of bestiality

The Bill defines bestiality to mean sexual activity between a person and an animal. The definition is in the interpretation section because the new offence of rape is to include compelling an act of bestiality and there is also a new offence of bestiality which replaces the current offence of buggery with an animal.

Definition of sexual intercourse

The current definition of sexual intercourse, which includes the sexual penetration of a person's anus or labia majora, means that people who have had surgery to construct or alter these parts of their body (for example, victims of female genital mutilation or transsexuals) may not be considered to have been raped if a person has sexual intercourse with them against their will.

The Bill redresses this anomaly by providing that references in the Act to sexual organs, including but not limited to these parts, include a reference to surgically-constructed or altered sexual organs.

The Bill also redefines sexual intercourse to include a continuation of sexual intercourse. This supports reforms to the offence of rape.

Consent to sexual activity

The Bill inserts a new provision into Division 11 of the Act (Rape and other sexual offences) to define consent to sexual activity for the purposes of this Division.

The provision aims to clarify the current law. It says that a person is not to be taken to have consented to sexual activity (which includes, but is not confined to, sexual intercourse) unless he or she has freely and voluntarily agreed to the sexual activity.

The Bill lists circumstances where a person's agreement to sexual activity is not to be taken to be free and voluntary and therefore will not be taken to be consent. The list does not define all possible situations when a person, apparently consenting to sexual activity, should not be taken to have given that consent freely or voluntarily. It simply identifies some circumstances that have been identified in court decisions as vitiating consent and requires a court to take them to have vitiated consent. These circumstances are:

when the person agreed to sexual activity only because force was applied to him or her or to some other person; or because there was an express or implied threat of such force, or because he or she feared the application of such force, or because there was a threat to humiliate, disgrace or physically or mentally harass him or her or some other person;

when the person was unlawfully detained at the time of the activity;

if the activity occurred while he or she was asleep or unconscious;

if the activity occurred while he or she was so intoxicated (whether by alcohol or any other substance or combination of substances) that he or she is incapable of freely and voluntarily agreeing;

if the activity occurred while he or she was affected by an intellectual, mental or physical condition or impairment of such a nature and degree that he or she is incapable of freely agreeing;

if the person was unable to understand the nature of the activity (for example, when under a delusion that the activity is not a sexual one but one of an entirely different kind);

if the person is mistaken about the nature of the activity (mistakenly thinking, for example, that it is necessary for medical diagnosis);

if the person agreed to the activity with a person under a mistaken belief about the identity of that person.

Other Australian jurisdictions, the UK, Canada and New Zealand have used similar provisions to clarify the bounds of sexual conduct under the law. The approach taken in this Bill, like other recent Australian legislation, is based on a model proposed by the Model Criminal Code Officers Committee.

The Statutes Amendment (Evidence and Procedure) Bill 2007 will set out the kinds of directions a judge must give a jury about consent in sexual offence proceedings.

Reckless indifference

The common law on belief in consent in rape is that a person believes another to have consented to sexual intercourse if that belief was held honestly. It does not matter that the belief was mistaken or unreasonable. This is so because serious criminal offences are generally for intentional wrongdoing. Guilt depends on proof of what the person actually believed.

Many have criticised this subjective approach, saying it is based on outdated and now inappropriate concepts of acceptable sexual behaviour. In some rape cases it is clear that although the accused person honestly (albeit mistakenly) believed that the alleged victim consented to the sexual act, the accused's mistaken but honest belief was quite unreasonable in the circumstances. Also, a belief in consent may be held honestly without the accused having so much as turned his or her mind to whether the other person consented or having taken any reasonable steps towards ascertaining consent. Suggestions for reform include abandoning the subjective approach in favour of an entirely objective one; retaining the subjective approach but allowing a defence of honest and reasonable mistake that must be disproved by the prosecution or allowing a defence of honest mistake that is not allowed in certain circumstances, and must be disproved by the prosecution; or retaining the subjective approach and, rather than retaining a defence of mistake, expanding the meaning of reckless indifference to reflect contemporary standards of acceptable sexual behaviour.

The Bill takes the last-mentioned approach.

In its decision in Banditt v The Queen [2005] HCA 80, the High Court examined the meaning of the expression 'reckless as to whether the other person consents to the sexual intercourse', acknowledging the uncertainty of the law in this area. Callinan J summarised Australian and UK authorities thus:

105...Western Australia, Queensland and Tasmania impose objective tests, so that an honest belief in consent will not negate criminal responsibility unless it be reasonably held. Victoria adopts a statutory test of awareness that the other person 'is not consenting or might not be consenting'. South Australia has enacted a statutory formulation as to the mental element of rape similar to [the NSW] s 61R(1). Section 48 of the Criminal Law Consolidation Act 1935 (SA) as amended by Act No 83 of 1976, provides that the offence is made out by establishing knowledge of absence of consent, or reckless indifference as to whether the other person consents to sexual intercourse with him. In Egan, White J (with whom Zelling and Mohr JJ agreed) said:

'Once it is clearly proved that she might not be consenting, then the man is recklessly indifferent if he presses on with intercourse without clearing up that difficulty of possible non-consent. ...

Upon receiving notice of the possibility of her non-consent, he is put upon inquiry before he proceeds to intercourse.'

The High Court unanimously dismissed the accused's appeal against conviction, holding that the accused was reckless in proceeding to intercourse because he was aware, from the complainant's previous rebuff of his advances, that there was a risk of non-consent. It held that it was not necessary for the prosecution also to establish a determination to proceed with intercourse regardless of lack of consent.

The court disagreed, however, on how the judge should explain 'recklessness to consent' to the jury. The majority thought that:

It may well be said that 'reckless' is an ordinary term and one the meaning of which is not necessarily controlled by particular legal doctrines. However, in its ordinary use, 'reckless' may indicate conduct which is negligent or careless, as well as that which is rash or incautious as to consequences; the former has an 'objective', the latter a 'subjective', hue. These considerations make it inappropriate for charges to juries to do no more than invite the application of an ordinary understanding of 'reckless'...

...In the present case, the trial judge properly emphasised that it was not the reaction of some notional reasonable man but the state of mind of the appellant which the jury was obliged to consider and that this was to be undertaken with regard to the surrounding circumstances, including the past relationship of the parties.

The South Australian law on rape requires proof of the accused's knowledge of lack of consent or of his reckless indifference as to consent. There is nothing wrong with that formulation other than that it leaves unstated the meaning of reckless indifference, which can cause uncertainty.

Although respondents to the Government's discussion paper on reform of the rape and sexual assault laws, published in 2006, were divided on some aspects of consent reform, the majority thought a subjective approach acceptable if reckless indifference were defined more broadly to capture situations where a person is aware that the other person might not consent but goes ahead anyway, or, does not give the slightest thought to whether the other person consents (for any reason, including self-induced intoxication). They suggested that a failure to take reasonable steps, in the circumstances, to ascertain whether the other person was consenting should be taken into account by the court in determining the accused's state of mind.

The Bill achieves this and applies the definition of reckless indifference to all relevant sexual offences in Division 11 of the Act, not just rape.

For these offences, it requires the prosecution to prove that there was a relevant sexual act, that the complainant did not consent to that act, and either that the accused knew the complainant was not consenting to the act or that the accused was recklessly indifferent as to whether the complainant was consenting to the act.

Reckless indifference to the fact that the other person does not consent to an act or has withdrawn consent to an act means one of three things.

It means that the accused 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, decided to proceed regardless of that possibility. Although aware that the other person might not be consenting, his decision was to ignore it.

It also means that the accused person realised the possibility that the other person might not be consenting to the act or might have withdrawn consent to the act but did not take reasonable steps to ascertain whether the other person did in fact consent or had in fact withdrawn consent to the act before deciding to proceed.

Finally, it means that the accused person did not give any thought as to whether or not the other person was consenting to the act or had withdrawn consent to the act before deciding to proceed.

Self induced intoxication and rape

The Bill also amends the current law on 'the drunk's defence' to ensure that it cannot be used to deny an awareness of the possibility that the other person was not consenting to sexual intercourse. This amendment became necessary after the Bill was introduced when the Supreme Court suggested that the elements of rape be characterised in a way that was not contemplated when the laws of self induced intoxication were enacted.

The common law principle that a defendant can rely on evidence of intoxication to negative any mental element, including voluntariness, intention, knowledge or subjective recklessness applies in South Australia but has been modified for self induced intoxication in response to political disquiet about the effect of the defence. The Criminal Law Consolidation (Intoxication) Amendment Act 1999 preserved the common law principles of self induced intoxication but introduced procedural restrictions on the circumstances in which evidence of intoxication could be left for the consideration of the jury. The Criminal Law Consolidation (Intoxication) Amendment Act 2004 overrode the common law to provide that self induced intoxication is no longer relevant to deny any mental element.

In jurisdictions (like South Australia) in which rape is not based on an objective belief in consent or where, as by this Bill, there is a compromise between a fully objective and a fully subjective approach to rape, self induced intoxication is 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.

The majority in that case, however, 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, 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 the case under the current definition of rape or under the definition in the Bill.

The Bill will prevent this by making a special exception to the laws of self induced intoxication as they apply to rape, and for this crime only.

Section 268(2) of the Act stops the drunk's defence being used to deny criminal liability (in the sense of voluntariness and intent) once the objective elements of an offence have been established.

Section 268(3) makes an exception to this. It allows a drunk's defence in limited circumstances that are consistent with fundamental principles of criminal liability. It allows the drunk's defence where foresight of the result of one's conduct is an element of the offence or where awareness of the circumstances surrounding one's conduct is an element of the offence.

If, however, as the courts have now suggested, awareness of consent is a circumstance surrounding the offence of rape, section 268(3)(b) will, if not amended, allow a drunk's defence to rape because it is an offence that requires proof of an awareness of the circumstances surrounding the defendant's conduct (awareness of consent). That would be contrary to the policy behind these reforms and to the policy behind the intoxication laws. By amending section 268(3)(b) the Bill will prevent a person defending a charge of rape on the ground that he did not know whether the other person consented or not because his consciousness was impaired by self induced intoxication.

The offence of rape

The Bill retains the existing elements of rape: having sexual intercourse with another person without their consent and knowing the person was not consenting or being recklessly indifferent as to whether the person was not consenting.

It also includes in the offence of rape the continuation of sexual intercourse when consent is withdrawn and compelling a person to have sexual intercourse with another person, to engage in sexual self-penetration or to engage in an act of bestiality, or to continue to engage in these acts if the other person withdraws initial consent to doing so.

Continuation of sexual intercourse

In consultation on the lapsed Bill, some commentators suggested that the Act should make it clear that to continue with sexual intercourse after consent is withdrawn is rape.

Although it is not mentioned specifically in the offence of rape, the courts have held it to be rape if at any point in sexual intercourse the defendant becomes aware that the other person is not consenting to it or is recklessly indifferent to whether the other person is consenting to it and proceeds with the sexual intercourse regardless.

Rape can therefore be committed in situations where a person who has initially consented to sexual intercourse withdraws that consent and the sexual intercourse continues.

There is, however, authority in South Australia that sexual intercourse, if by sexual penetration, cannot be rape when consent is withdrawn after penetration, the offence then being indecent assault. That authority is based on an interpretation of a definition of carnal knowledge (the equivalent of 'sexual intercourse' in the current offence of rape) that deemed it to be complete upon penetration only. The Privy Council has since pointed out that the purpose of this definition is to identify the minimum physical characteristics of the sexual act upon which the offence is based (i.e. that mere penetration is enough to constitute that act), not to identify a point at which awareness of consent is no longer relevant. That our offence of rape is expressed in terms of 'having' sexual intercourse would tend to confirm this interpretation.

New South Wales, the ACT and Victoria have amended their sexual offence laws to refer to the non-consensual continuation of sexual intercourse, to emphasise that this conduct is criminal.

The Bill amends our laws along similar lines to the laws in Victoria. It defines sexual intercourse to include a continuation of an activity that comprises sexual intercourse. It makes it rape for a person who is engaged in sexual intercourse with another person to refuse or fail to disengage from the sexual intercourse knowing or being recklessly indifferent to the fact that the other person has withdrawn consent.

Compelled sexual intercourse

In consultation on the lapsed Bill, some commentators suggested that it should be a specific crime for a person to compel another person to have sexual intercourse with a third person or to sexually penetrate themselves, citing offences to this effect under Victorian and New South Wales law. Although the 2006 South Australian discussion paper on reform of the rape laws did not refer to this topic, the Government takes the view that offences of this kind will stop a potential gap in the law.

The definitions of rape and sexual intercourse in the current law and in the lapsed Bill are directed at the state of mind of a person who has sexual intercourse, in person, with another person, without that other person's consent. They do not contemplate compelled sexual intercourse.

The laws of aiding and abetting do not clearly cover a person who compels another to have sexual intercourse in this sense. If the person being compelled does not commit an offence (because under duress or being an innocent agent), it may be difficult to convict the person compelling him or her of aiding and abetting an offence. Making this conduct a specific offence will remove that ambiguity.

The Bill makes it rape to compel a person to have or continue to have sexual intercourse with a third person (regardless of whether that third person consents to it or not), knowing that the person being compelled does not consent to it or has withdrawn consent to it or being recklessly indifferent to whether this person consents or has withdrawn consent. It makes it rape to compel a person to sexually-penetrate themselves knowing that the person does not consent to it or has withdrawn consent to it or being recklessly indifferent to whether this person consents or has withdrawn consent. It makes it rape for a person to compel another person to engage in an act of bestiality knowing that the person being compelled does not consent to it or has withdrawn consent to it or being recklessly indifferent to whether this person consents or has withdrawn consent. As rape, this conduct attracts a maximum penalty of life imprisonment.

The common law defence of duress will apply where appropriate to prevent a person who is compelled to perform sexual acts from being convicted of a sexual offence him or herself.

Consequentially, the Bill reconstructs offence with animals (limited at present to 'buggery with an animal') as an offence of bestiality, defined simply and more broadly as sexual activity between a person and an animal.

Compelled sexual manipulation

The Bill makes compelled sexual activity that is not sexually-penetrative or does not involve bestiality a separate crime, because the acts being compelled are less serious than rape, amounting, at most, to indecent assault. The offence has the same elements of knowledge and reckless indifference to consent as compelled rape and includes a continuation of the act. The defence of duress applies in the same was as to compelled rape.

The offence includes, for a prurient purpose, compelling a person, without their consent, to sexually manipulate oneself, to sexually-manipulate someone else, and to sexually-manipulate themselves or to continue to do any of these things when consent is withdrawn, knowing or being recklessly indifferent as to consent or withdrawal of consent.

The new offence of compelled sexual manipulation is more serious than ordinary indecent assault because of the element of compulsion. It therefore carries a maximum penalty, for a basic offence, of imprisonment for 10 years, and, for an aggravated offence, of imprisonment for 15 years. These penalties are greater, by 2 and 3 years respectively, than the maximum penalties for basic and aggravated offences of indecent assault.

Unlawful sexual intercourse

The Bill changes the criteria for what makes sexual intercourse between an adult and a child who is 17 years old unlawful. The need for this change was pointed out in consultation about reforming the offence of persistent sexual abuse of a child. The new criteria proposed by the Bill will apply to both unlawful sexual intercourse and the new offence of persistent sexual exploitation of a child.

The current criteria are too narrow, referring only to guardians, school masters, school mistresses and teachers.

The effect of the Bill will be to make it unlawful for an adult to have sexual intercourse with a child who is 17 years old, even if the child consents to it, if the adult is in a position of authority in relation to the child. The Bill defines a position of authority exhaustively. An adult is in a position of authority for the purposes of this offence if he or she is the child's teacher, the child's step-parent, foster parent or guardian (note that a parent who engages in such conduct is already liable for the offence of incest), a religious official or spiritual leader providing pastoral care or religious instruction to the child, the child's medical practitioner, psychologist or social worker, a person who is holding the child in lawful detention or custody, or the child's employer (whether the work is paid or not).

All these people are, by dint of their position of authority, able to wield considerable influence over a young adult's will. That influence should therefore be exercised with great care and the utmost professionalism, and not to secure consent to sexual activity. By enacting this provision, Parliament is saying that sexual activity between an adult in such a position and a child of 17 years old is inherently reprehensible and should be a criminal offence.

Persistent sexual exploitation of a child

The Bill repeals the offence of persistent sexual abuse of a child and replaces it with a new offence of 'persistent sexual exploitation of a child'.

The current offence of persistent sexual abuse was enacted to overcome problems such as those identified by the High Court in the case of S v the Queen and by the South Australian Court of Criminal Appeal in R v S. In that case multiple offences against the same child were charged as having occurred between two specified dates, each one being part of an alleged continuous course of conduct. Because the evidence given of the alleged course of conduct was not sufficiently related to the particular charges, in that the child could not identify particular occasions and link them with particular counts, an appeal against conviction was allowed and an acquittal entered.

The offence of persistent sexual abuse is rarely charged because it fails to overcome the very problem of particularity that it tried to remedy. Children are still unable to identify precisely each separate incident of abuse that is required to prove the offence.

The new offence has the same aim as the current offence: to punish the persistent sexual abuse of a child, and not just the sexual acts that can be identified with enough particularity to be charged as specific offences in themselves.

Often, children who have been subjected to long-term sexual abuse can remember in some detail when the abuse started and when it ended, so that the first and last alleged acts are often capable of being charged as specific offences, but can't remember the detail of when and where each of the many intervening acts occurred enough to distinguish each one from the other. That is why all these acts cannot be charged as specific offences, and why, when convicted of only the acts that can be so charged, the law fails to recognise or punish the full extent of the abuse. The current offence aims to overcome this but has not worked.

The Bill proposes to replace the current offence with a new one of persistent sexual exploitation of a child. The new offence focuses on acts of sexual exploitation that comprise a course of conduct (persistent sexual exploitation) rather than a series of separately particularised offences.

Under the Bill, an act of sexual exploitation is an act of a kind that could, if it were able to be properly particularised, be the subject of a charge of a specific sexual offence. The kinds of sexual offences to which these acts should approximate are rape, unlawful sexual intercourse, indecent assault, acts of gross indecency, procuring sexual intercourse, procuring a child to commit an indecent act, sexual servitude and related offences, incest and bestiality, including an attempt to commit any of these offences or an assault with intent to commit any of them.

The Bill provides that those parts of the course of conduct that can be charged as specific offences against the Act may be charged on the same information as the charge of persistent sexual exploitation of a child, as alternatives to that charge. Importantly, it prevents a person who is convicted of a charge of persistent sexual exploitation being convicted or punished for the same conduct twice.

As under the current law, the offence applies when the child is of or under the prescribed age.

The Bill uses the same age thresholds as under the current law but redefines the circumstances in which the offence applies to children between the age of 17 and 18 years in the same way as in the offence of unlawful sexual intercourse with a child (already explained).

As under the current law, if the child was at least 16 years of age when the offence was alleged to have been committed, it is a defence to prove that the defendant believed on reasonable grounds that the child was at least the prescribed age. This is the same defence that applies to the charge of unlawful sexual intercourse.

The new offence retains the maximum penalty of life imprisonment.

Joinder of charges against a person accused of sexual offences against more than one alleged victim

Section 278(2) of the Act permits a judge to order a separate trial of any count or counts on an information if of the opinion that the accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information. This provision applies to all kinds of criminal proceedings.

In prosecutions for sexual offences allegedly committed against several different people, courts will often order separate trials even if there is some cross-admissibility of evidence. This means that there will be a different jury hearing the allegations against the defendant that concern each separate alleged victim. None of these juries will hear anything about the allegations against the defendant in respect of the other alleged victims.

Judges make these rulings to prevent unfairness to a defendant when they think there is a risk that, if evidence of the defendant's similar conduct towards people other than the complainant in this case is admitted, the jury will use evidence of that conduct to sustain a finding of guilt on the charge before them even though there is not enough evidence before them to sustain such a finding beyond reasonable doubt.

Some say this demonstrates a lack of faith in the jury. Others say it is reasonable for the court to anticipate and prevent prejudice to a defendant in a system of justice that is based on a presumption of innocence. In sexual cases, however, and particularly those where a person is charged with offences against different children, it often means that a jury may not hear evidence about an alleged offence in its full context.

This Bill makes an exception to the rules of joinder and severance of counts for sexual-offence cases, for which it creates 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.

The presumption may be rebutted, so that a separate trial may be ordered for a count relating to a particular alleged victim, only if evidence relating to that count is not admissible in relation to each other count relating to any of the other alleged victims.

In determining the admissibility of evidence supporting a count relating to one victim as to counts relating to another for the purposes of ordering separate trials, the Bill provides that evidence relevant to that count is admissible only if it has a relevance beyond mere propensity, and also, that the judge is not to have regard to whether or not there is a reasonable explanation in relation to the evidence that is consistent with the innocence of the defendant or whether or not the evidence may be the result of collusion or concoction. Both these matters are for the jury to decide; the judge may not prevent the jury hearing this evidence for these reasons alone.

The effect of this amendment will be to limit the circumstances in which the court may sever counts of sexual offences against different alleged victims that are charged against the one defendant so that they are heard by different juries.

In conclusion

This Bill declares and clarifies the legal boundaries of sexual behaviour that were until now to be found in the case law only. It replaces the little-used offence of persistent sexual abuse of a child with a new offence of persistent sexual exploitation of a child, designed to overcome obstacles to the prosecution of people who persistently abuse children. It introduces a presumption that counts of sexual offences in the same information that involve several alleged victims should be heard together in the same trial, and that in determining whether evidence supporting a count relating to one alleged victim is admissible in relation to each other count relating to a different alleged victim (a determination which will dictate whether the trials of different victims can be heard separately or together) the judge may no longer have regard to whether there is a reasonable explanation consistent with the defendant's innocence or whether the evidence may be the result of concoction or collusion. It will update the offence of incest. It will introduce new offences of compelled sexual intercourse (to be a form of rape) and compelled sexual manipulation. It will define reckless indifference to consent or the withdrawal of consent to an act and to allow a court determining whether a person charged with a sexual offence was recklessly indifferent to consent or withdrawal of consent to consider whether the evidence suggests the person did not take reasonable steps, in the circumstances, to ascertain consent. It will change the laws of self induced intoxication to ensure that the drunk's defence cannot be used to deny an awareness that the other person might not be consenting. It will redefine rape to include a continuation of sexual intercourse where consent is withdrawn. It will define consent to sexual activity as free and voluntary agreement to the sexual activity and will set out circumstances when a person is to be taken not to have freely and voluntarily agreed to sexual activity.

The Bill will be complemented by evidential and procedural amendments in the Statutes Amendment (Evidence and Procedure) Amendment Bill 2007 that reform the way judges warn and direct juries in sexual offence proceedings, reform criminal procedures to reduce the impact upon children of delay in giving evidence of sexual abuse, and reform the law on complaint evidence in sexual-assault cases.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

4—Amendment of section 5—Interpretation

This clause inserts a new definition of bestiality and amends the definition of sexual intercourse in section 5 of the Act to ensure that it includes penetration of the vagina and also that it includes a continuation of any activity constituting sexual intercourse. The clause also inserts a new subsection into section 5 to deal with the issue of surgically constructed or altered breasts and genitalia.

5—Substitution of section 48

This clause repeals the existing provision on rape and substitutes new provisions as follows:

46—Consent to sexual activity

This proposed section provides that a person consents to sexual activity (which expressly includes sexual intercourse) if the person freely and voluntarily agrees to the sexual activity. The provision then gives a list of situations in which a person is taken not to freely and voluntarily agree to sexual activity (although this list does not limit the circumstances in which a person may be found to not freely and voluntarily agree to sexual activity).

47—Reckless indifference

Proposed new sections 48 and 48A both use the concept of a defendant being recklessly indifferent with respect to the issue of consent to a sexual act. This proposed section defines that concept of reckless indifference.

48—Rape

This proposed section enacts 2 rape offences under which—

a person who engages or continues to engage in sexual intercourse with another person when that other person does not consent to engaging in the sexual intercourse or has withdrawn consent to the sexual intercourse is guilty of the offence of rape if the person knows, or is recklessly indifferent as to, the fact that the other person does not consent or has withdrawn consent;

a person who compels another person to engage or to continue to engage in sexual intercourse with a third person, an act of sexual self penetration (defined in the section) or an act of bestiality (defined in section 5) when the compelled person does not consent to engaging in the sexual intercourse or act, or has withdrawn consent, is guilty of the offence of rape if the person knows, or is recklessly indifferent to, the fact that the person does not consent or has withdrawn consent.

A person found guilty of rape is liable to life imprisonment.

48A—Compelled sexual manipulation

This proposed section provides that a person who, for a prurient purpose, compels a person to engage or to continue to engage in an act of sexual manipulation (defined in subsection (2)) or an act of sexual self manipulation (defined in subsection (2)) when the compelled person does not consent to engaging in the act, or has withdrawn consent, is guilty of the offence of compelled sexual manipulation if the person knows, or is recklessly indifferent to, the fact that the person does not consent or has withdrawn consent. The maximum penalty for a basic offence against the section is 10 years imprisonment and for an aggravated offence is 15 years imprisonment.

6—Amendment of section 49—Unlawful sexual intercourse

This clause substitutes a new subsection (5) into section 49, so that the provision applies in respect of a person in a position of authority in relation to the child (and defines who is in a position of authority).

7—Insertion of section 50

This clause inserts a new section 50 in the principal Act (to replace the current section 74, which is repealed under clause 12 of the measure) as follows:

50—Persistent sexual exploitation of a child

Under this provision, an adult who engages in persistent sexual exploitation of a child (defined as consisting of more than 1 act of sexual exploitation with the child over a period of not less than 3 days) under the prescribed age is guilty of an offence punishable by life imprisonment. An act of sexual exploitation is an act that constitutes (or would, if it were able to be sufficiently particularised, constitute) an offence against Division 11 (other than sections 59 and 61) or section 63B, 66, 69 or 72 or an attempt or assault with intent to commit, any of those offences. The prescribed age is generally 17, but is 18 if the adult is in a position of authority in relation to the child (which is defined consistently with the new definition proposed to be inserted in section 49).

If the child was at least 16 years of age at the time of any alleged act of sexual exploitation, the act is not taken into account for the purposes of this offence if the defendant proves that he or she believed on reasonable grounds the child was at least the prescribed age.

The prosecution is not required to allege the particulars of the alleged unlawful sexual acts that would be necessary if the acts were charged as separate offences.

A person may be charged on 1 information with an offence against this section and other offences, but cannot be convicted of both this offence and another sexual offence against the same child during the same period alleged for this offence.

The provision applies in relation to acts of sexual exploitation of a child whether committed before or after the commencement of the provision.

8—Amendment of section 57—Consent no defence in certain cases

This clause reflects the changes to section 49, discussed above, and provides that a person under the age of 18 will be taken not to be capable of consenting to an indecent assault committed by a person who is in a position of authority in relation to the person.

9—Substitution of section 69

This clause substitutes a new section 69 (to replace the current offence of buggery with an animal) as follows:

69—Bestiality

It is an offence to commit bestiality (defined in section 5 as sexual activity between a person and an animal) punishable by imprisonment for 10 years.

10—Substitution of section 72—Incest

This clause substitutes a new incest offence into the current Act, making it an offence to have sexual intercourse with a close family member (defined in the section as a parent, child, sibling or half sibling, grandparent or grandchild, other than such a person who is related only by marriage or adoption). The offence is punishable by 10 years imprisonment and it is a defence to a charge of such an offence to prove that the defendant did not know, and could not reasonably have been expected to know, that the person was a close family member.

11—Amendment of section 73—Proof of certain matters

This clause is consequential to proposed new section 47 (dealing with consent).

12—Repeal of section 74

This clause repeals section 74.

13—Amendment of section 75—Alternative verdict on charge of rape etc

This clause makes a consequential amendment to section 75.

14—Amendment of section 76—Corroborative evidence in certain cases

This clause deletes an obsolete reference.

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

This clause amends section 268(3) to specify that paragraph (b) of that subsection does not apply in relation to an alleged offence of rape.

16—Amendment of section 278—Joinder of charges

This clause amends section 278 to provide a presumption that different counts of sexual offences involving different victims that are joined in the 1 information are triable together and to specify the circumstances in which a count may be severed. The proposed amendment also makes provision with respect to determining the admissibility of evidence for the purposes of determining whether severance should occur.

Schedule 1—Related amendments and transitional provision

The Schedule makes consequential amendments to various other Acts and includes a transitional provision relating to the repeal of section 74 of the Criminal Law Consolidation Act 1935.

Debate adjourned on motion of Hon. S.G. Wade.

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