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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-03-05 Daily Xml
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CRIMINAL LAW CONSOLIDATION (RAPE AND SEXUAL OFFENCES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 5 March 2008. Page 1992.)

The Hon. R.D. LAWSON (20:45): When announcing the government's intention to introduce this legislation, the Attorney-General issued a press statement with the Minister for the Status of Women in which it was said that this legislation introduces 'sweeping changes to the state's rape and sexual assault laws'. The minister said that 'this legislation will give a clear direction to the courts over what can be admitted as evidence' in rape offences. These statements are typical hyperbole of this government. This legislation contains a number of important provisions but they are not sweeping and they will, I regret to say, not give a clear direction to the courts over what can be admitted in evidence in cases involving sexual assault and rape.

The Attorney-General is quoted in his own statement as saying that the driving force behind the changes is the unacceptably low conviction rates for rape and sexual assault. He said:

Only 17.6 per cent of rape cases sent to the courts result in a conviction. That tells me there is something wrong with our current laws.

It is true that there is a low conviction rate for rape and sexual assault. This was a matter which was the subject of an inquiry by the Legislative Review Committee which reported in 2005. The inquiry of that committee was entitled 'Inquiry into Sexual Assault Conviction Rates'. The committee examined the South Australian statistics and also statistics from other jurisdictions. It is quite difficult to establish precisely what is the conviction rate by reason of a number of factors, which includes matters such as the number of these offences reported, and we know that, regrettably, there is a low reporting rate in relation to rape and sexual offences, for reasons which members would or should understand.

Factors are involved in the evidence collected by police and whether or not that evidence is sufficient to support a conviction. Also, there are factors relating to the way in which the office of the DPP determines whether or not to proceed with charges of rape, attempted rape and other sexual offences. There are quite a number of other factors. However, when one boils it all down, the Legislative Review Committee concluded that the conviction rate for rape and serious sexual assault was about 56 per cent, and I here refer to page 17 of the report of that committee. I think that most people would regard 56 per cent as an unacceptably low rate. The Attorney-General in his statement claiming that only 17.6 per cent of rape cases sent to the courts resulted in a conviction is inconsistent with the conclusions of the Legislative Review Committee; but I think this government does have a penchant for over-exaggerating the nature of problems.

To say that only 17.6 per cent of rape cases results in a conviction, when it would appear that the rate is something of the order of 50 per cent, is an exaggeration. I happen to consider that 50 per cent of cases in this type of offence is too low; and the Liberal opposition certainly does not contest the proposition that the fact that only half of the accused persons who are charged with rape in our courts are convicted of that offence indicates a serious issue. However, the point is: will this bill result in more guilty persons being convicted of these offences? I seriously doubt whether this piece of legislation will result in more people who are guilty being convicted of these offences. The Attorney said at that stage:

One of the most significant reforms will be the definition of what constitutes consent to sexual activity, making South Australia among the first jurisdictions in the country to define 'consent'.

Well, true it is—we may be one of the first jurisdictions to put in legislation what is consent, but the question one must ask oneself is: do we really need a dictionary definition of 'consent'? Is the question of consent a real issue in most rape cases, or is there sufficient doubt about the existing common law about what is consent that there needs to be a change? We seriously doubt that the current definitions of 'consent' which are applied under the common law are sufficiently doubtful to warrant legislative intervention. Members on this side of the chamber happen to believe that the British system of common law, where cases are developed on a case-by-case basis based upon the facts of a particular situation rather than a theoretical consideration in advance of what might arise, is a better way of developing the law.

It is an attractive proposition to suggest that parliament should lay down all the laws, that we should codify the laws, and that when we see the thousands of pages of the laws of South Australia in statute and the hundreds of thousands of pages of judicial decisions that it would be better to confine the law to what parliament says the law is rather than what the judges say the law is on a case-by-case basis. The fact is that building laws and principles by reference to actual cases, rather than by reference to theoretical surmises and academic considerations of what might arise in the future, is a better way. It is the proven way in which the English common law has developed. It is the common law not only in the United Kingdom but also in Australia, the United States and various other countries. We think we have a good system for developing the law, and one of the difficulties about codifying the law is that, by writing down what you think consent is in advance of a particular situation, it often results in unintended consequences.

In the statement to which I am referring, the Attorney-General is quoted as saying:

Too often a case can fail on the question of what is consent, so we will make certain the new legislation defines that consent as being free and voluntary.

The statement continues:

Mr Atkinson says the new laws will set out that consent is not given if:

The victim is so intoxicated that they are incapable of agreeing [to sexual activity]

The victim was asleep or unconscious

The victim was forced to agree to sex because of threats or harassment

The victim misunderstood the nature of the activity

The victim could not consent because of physical or intellectual impairment.

All these things are covered in the existing law. There is nothing in the existing law that suggests that a victim who is asleep or unconscious can give consent to sexual activity. There is nothing in the existing law to suggest that if one obtains consent to sexual activity by means of a threat or harassment, or some other form of physical pressure, it amounts to valid consent. There is nothing in the existing law, as I understand it, which suggests that a victim who misunderstands the nature of the sexual activity to be undertaken can be taken to be giving consent. If a woman consents to what she believes to be a medical procedure, it cannot be taken to be consent to some sexual activity by the person pretending to be a doctor or suggesting that as a medical practitioner he is entitled to undertake some procedure.

We seriously doubt whether this legislation will have the good effects that are intended. We believe that, once again, the Labor Party and the Rann government are overstating the effect of legislation of this kind. This legislation is difficult—there is no doubt about that—as is illustrated by the fact that this government said it was going to review the laws of rape quite some years ago. It produced the statement to which I have referred, produced a bill and then abandoned it, and produced another bill and then abandoned it; and now it has come up with a third version on the same topic because, as a result of consultation, it realises that things that it thought were a great idea in the first place are not such a great idea. It asked judges how these procedures would work and it now finds that they will not work in practice.

In February 2007, the government produced a bill of six pages; I will not go back to the earlier version. Now we have a version before us with twice that number of pages—13 pages of legislation—to address what it said was a relatively simple issue. It is not a simple issue.

It has introduced some new concepts into this bill, and one might have some doubts about the necessity for those new concepts. One of the difficulties that has really bedevilled the law in relation to sexual assault is that definitions are changed and distorted from the ordinary concepts of language. For example, most people would know what sexual intercourse is, but the definition that has been included in our criminal law as a result of amendments is as follows:

Sexual intercourse includes any activity involving—

(a) penetration—

people would well understand that—

(b) fellatio;

(c) cunnilingus

Those two latter concepts are not really within the ordinary concept of sexual intercourse as most people understand it. However, we have added those things to include something in sexual intercourse which is not within the ordinary usages. We have defined 'rape' as not only including forced sexual intercourse but also various other practices; offensive activities they might be, but they are not rape by ordinary definition. However, you can create a rape by defining it as the penetration of any orifice of the body.

So, what we do in our desire to make the law all encompassing is to include within various concepts things that are not traditionally so associated. I see, for example, in this latest version we have a new definition of 'bestiality', a pretty rare sort of offence, but it certainly does not fall within what might be termed traditional concepts.

We have the new concept of 'compelled sexual manipulation', which is where an offender, for a prurient purpose, compels a person to engage, or continue to engage, in an act of sexual manipulation of the offender or some other person, or an act of sexual self-manipulation. So, we have a long section (proposed section 48A) dealing with this whole topic of 'compelled sexual manipulation': three big words. It was all previously covered by the concept of gross indecency. I think people understand what gross indecency is; you do not need to break it up into various kinds of activity. It covers a whole range of activities, including what is now defined as 'compelled sexual manipulation'.

We see there are quite a number of cases where the legislation originally introduced in February 2007 has been markedly changed. I mentioned earlier the fact that the case law already establishes pretty well what is consent and what is not consent. The government is making great play of the fact that here in this bill we have decided to define exactly what is consent, and there are a number of paragraphs defining what is not consent. This is where a person is unlawfully detained or a person is asleep or unconscious, so affected or intoxicated as to be incapable of giving consent.

Yet another concept has now been added: a person who agrees to engage in an activity with a person under a mistaken belief as to the identity of that person. This was not previously included in the bill of February 2007, and it is a somewhat unusual provision. Taking a hypothetical example, if an adult woman decides that she would like to engage in some sexual activity with some rock star at a concert, hangs around the stage door after the concert and actually finishes up being bedded by somebody who claimed to be the rock star but was actually only the lighting mechanic, is that actually now—

The Hon. A. Bressington interjecting:

The Hon. R.D. LAWSON: It might be a big disappointment to the woman. She might not be able to post a particular conquest on her website. Is that particular situation really rape when she willingly entered into a sexual relationship with the person, had sexual relations with that person but was mistaken as to his identity? Or, if someone meets somebody in a pub and thinks he is a millionaire but he is not, is that considered to be rape because the woman was under a mistaken belief as to the identity of the person?

In this provision relating to the identity of the person committing the sexual offence, one can well imagine that if, in my hypothetical example, the lighting mechanic pretended and said that he was in fact the rock star, that might actually be a circumstance in which one would say that consent was not validly given. But the section does not actually provide that the alleged offender has to have induced a belief that he had a particular identity, a particular quality or that he was a millionaire, but simply that the victim—the now victim—entertained a mistaken belief. So, there need be no dishonesty or subterfuge on the part of the alleged offender for there to be an offence. I seriously doubt whether that matter now included in this bill has been sufficiently thought through.

The bill now also introduces a statutory definition of the concept of reckless indifference. Reckless indifference arises in relation to consent in this way: it is an offence if a person engages in a sexual activity where the partner has not consented. In the courts, there are often questions about whether or not the—let us say in this example—woman has communicated the fact that she is not consenting to the activity and, if the alleged offender continues with the activity, recklessly indifferent as to whether or not she was consenting, he is guilty of the offence because consent is absent.

What this bill now seeks to do is create a statutory definition in 10 lines of what constitutes reckless indifference. Such a definition has not previously been thought necessary because, as I mentioned, common law works out in a case by case way—and in a practical way—what is reckless indifference.

When you look at the definition of reckless indifference, you can say that it is a fair enough definition. However, there is no doubt that, when you put 10 lines of legislation into a statute, it will create endless arguments about the meaning of each and every term. Contrary to the idea that it will resolve difficulties, it actually does not resolve them but creates by definition additional difficulties.

In connection with the offence of rape, which is contained in section 48 of the Criminal Law Consolidation Act, I might say that the existing provision is perfectly reasonable and simply provides:

A person who has sexual intercourse with another person without the consent of that other person—

(a) knowing that that other person does not consent to sexual intercourse with him; or

(b) being recklessly indifferent as to whether that other person consents to sexual intercourse with him,

shall (whether or not physical resistance is offered by that other person) be guilty of rape and liable to be imprisoned for life.

Those six lines of text—well understood and well applied—are now being expanded to some 28 lines of text which will leave more room for debate and legal argument and which are not necessarily a clearer provision. It is interesting once again to see how this proposed law, so vaunted by the Attorney-General in his statement in February 2007, has changed. The bill originally proposed to insert into the concept of rape not only knowing that the person does not consent or being recklessly indifferent but also—and this was the proposal—that a person who has sexual intercourse with another person without the consent of that person 'having failed to take reasonable steps in the circumstances to ascertain whether the other person consented to sexual intercourse'.

What is proposed is that a person would be guilty of rape if he (as would usually be the case) had failed to take reasonable steps in the circumstance to ascertain whether the other person consented. In the ordinary course of human behaviour, in my very limited experience in this matter, and in my understanding of the behaviour of others, the steps that are taken by somebody, whether male or female, to know whether there is consent are not actually signing a form or asking, 'Do you mind if I do what I propose doing? What do you think about this? Would you mind signing a statutory declaration? Can we go ahead?'

That was the government's proposal. That is what it wanted to put in but, wisely in my view, it abandoned that. The reason I raise this is just to say that what the government thought a year ago was a fabulous idea and had to be included has now been brushed aside. I commend it for brushing it aside, but I think it shows the uncertainty about ideas and concepts in this field.

Yet again, in this provision, new section 48 under the heading 'Rape', they have included not only sexual intercourse with a person other than the offender but also sexual self-penetration and acts of bestiality. I mentioned earlier expanding the concept of rape. People understand what is rape and what is sexuality. To describe bestiality, namely, sexual activity with an animal, as rape seems to be a bizarre notion. There is already an offence in the Criminal Law Consolidation Act which says that the offence of bestiality is a particular offence: it is not rape, it is bestiality, and one can be charged with that. It used to be called 'buggery of an animal', which is perhaps too brutal for our modern ears, so they call it bestiality. To my way of thinking it is not rape as it is commonly understood. This is a way of distorting the criminal law.

They have introduced in the bill currently before us—and it was not thought to be so important in February last year—a new offence of 'compelled sexual manipulation'. This is whereby some person, for a prurient purpose, compels some other person to engage in some form of sexual activity where the person does not consent to engaging in that act. That is already surely covered by the generalised offence of gross indecency, which covers all sorts of activities of this kind.

There is already in the Criminal Law Consolidation Act an offence of sexual exploitation of children, undoubtedly an entirely appropriate offence and one that ought to be on the books. That offence is being redefined. We have no particular problem with it because we now understand that sexual exploitation of children is a major issue—one that for many years was not appropriately addressed either in the criminal law or in our social support systems. The offence of persistent sexual exploitation of a child will now occupy some two pages of text in a detailed explanation.

There are provisions in this bill relating to the joinder of charges. These are important provisions and have been in the Criminal Law Consolidation Act for some time. They are rather complex, but the existing law is that, where a person is charged with two or more offences, they may be joined in the same information, which means they will be tried before a jury at the same time. If the charges are founded on the same facts, or a part of a series of offences of the same or a similar character, the current law is that, where before a trial, or at any stage of a trial, the court—meaning the judge—is of the opinion that the accused person may be prejudiced or embarrassed in his defence by reason of being charged with one or more offence on the same information, the various offences should be tried separately.

It is widely recognised—and we certainly accept—that that can lead to injustice to a victim who is required not only to give evidence at a particular trial, but at another trial and perhaps another trial and yet another trial. There are new and rather more complex provisions proposed to be inserted which are generally in favour of allowing all offences being joined in the same information and being tried together, with a residual power in a judge to order separate trials relating to particular victims or offences, and rather complex provisions relating to whether or not the evidence in relation to a particular charge will also be relevant to evidence in another charge. We agree that this particular provision is appropriate, especially given the fact that the judges have indicated that amendments ought be made and they have been made, as we understand it, to the bill.

Notwithstanding the reservations we have about this particular measure, we agree with the basic principle that the current laws relating to sexual offences are not as effective as they should be, insofar as that is reflected in the very low conviction rate. However, we do not believe that these laws, of themselves, will make a great difference to that, so we are sceptical. The reason people do not report rape and other sexual offences is not because of some technical deficiencies in the laws. The reasons are to be found in many other things. The way in which reports are taken, the sensitivity with which they are handled, the support which victims of sexual assault are given, the encouragement that they are given, and the protections that they are offered in the course of the trial do not relate to this particular bill at all.

If we are to be serious about increasing the number of convictions and ensuring that guilty people are found guilty and punished, we need to do more than simply window-dressing the underlying legislation. We need to provide far more mechanisms and support to ensure that the evidence is presented, that people do not abandon prosecutions, that people are not dispirited and simply do not go on with them and do not think it is worth reporting. These are all issues which cannot simply be resolved with the stroke of a legislative pen, but which require real resources and real effort by government.

Admittedly there is another bill, which is associated with this particular one, which deals with some of the evidence and the facilities for giving evidence. We will be supporting that bill, but do not let it be claimed by this government that, by this measure, they have really done anything other than window-dressing in relation to ensuring justice for the victims of sexual assault. We will be supporting the second reading and we look forward to the committee stage of the bill, where some of the more technical aspects will be explored in greater detail.

Debate adjourned on motion of Hon. I.K. Hunter.

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