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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-10-28 Daily Xml
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Statutes Amendment (Stealthing and Consent) Bill

Introduction and First Reading

The Hon. R.I. LUCAS (Treasurer) (18:05): Obtained leave and introduced a bill for an act to amend the Criminal Law Consolidation Act 1935, the Criminal Procedure Act 1921 and the Evidence Act 1929. Read a first time.

Second Reading

The Hon. R.I. LUCAS (Treasurer) (18:06): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and the detailed explanation of clauses inserted in Hansard without my reading them.

Leave granted.

Mr President, the Government is pleased to introduce the Statutes Amendment (Stealthing and Consent) Bill 2021.

The Bill contains a number of improvements to the operation of laws around consent to sexual activity.

The issue of consent in cases involving sexual offences has recently been the subject of consideration by a number of law reform bodies across Australia. The Queensland Law Reform Commission and New South Wales Law Reform Commission each published reports in 2020 reviewing consent laws in their respective jurisdictions. The Victorian Law Reform Commission is also currently looking at improving the responses of the justice system to sexual offences, and is expected to release its report imminently.

The South Australian Government has considered the recommendations made by the NSW and Queensland law reform bodies in the context of South Australia's legislative framework, and has identified a number of areas where improvements can be made to our laws.

The first amendment in the Bill is to the Criminal Law Consolidation Act 1935 and deals with the practice known as stealthing. Stealthing is where a person deliberately and without consent does not use, damages or removes a condom before or during sexual activity.

Section 46 of the Criminal Law Consolidation Act provides that a person only consents to sexual activity if they freely and voluntarily agree to the activity. It further provides a non-exhaustive list of circumstances in which a person is taken not to freely and voluntarily agree to sexual activity.

The Bill amends section 46 of the Criminal Law Consolidation Act to include stealthing as an additional situation in which consent is negated. It provides that a person is taken not to freely and voluntarily agree to sexual activity if 'the person agrees to engage in the activity because of a misrepresentation (whether express or implied) as to the use of a condom during the activity'.

This means that, where a person agrees to engage in sexual intercourse on the basis that a condom will be used, non-consensual removal of the condom will amount to rape. This will leave no room for uncertainty that this harmful and degrading practice is unlawful and will not be tolerated by the South Australian community.

I wish to acknowledge the work done in this area by Hon. Connie Bonaros MLC. The Hon Ms Bonaros recently introduced a Private Member's Bill to address this issue, and in doing so provided personal accounts from individuals that she spoke with about being a victim of stealthing. Her remarks highlighted that this is a real issue affecting South Australians, and that clarification of the law is indeed required.

The second reform is an amendment to the Evidence Act 1929 to broaden the jury directions that must be given in cases involving a sexual offence where consent is in issue.

Section 34N of the Evidence Act already provides a number of jury directions that must be given by the trial judge, where applicable in the circumstances of the particular case. For example, the judge must direct the jury that the person is not to be regarded as having consented to the sexual activity merely because the person did not protest or physically resist, or because the person consented to the sexual activity on an earlier occasion. These directions are aimed at addressing misconceptions about how a person might ordinarily respond to non-consensual sexual activity.

The NSW Law Reform Commission identified a number of other common misconceptions about non-consensual sexual activity that exist within the community, and raised concerns about the possibility of juries making, or being invited to make, unwarranted assumptions about consent. The NSW Law Reform Commission recommended that these misconceptions be addressed via a direction from the trial judge.

In South Australia, a number of the misconceptions identified by the NSW Law Reform Commission are already captured by section 34N of the Evidence Act.

The Bill expands the list of section 34N directions to include:

that non-consensual sexual activity can occur in many different circumstances and is not always perpetrated by a stranger in a public place;

that non-consensual sexual activity can occur between different kinds of people, including people who are married or in an established relationship;

that trauma may affect people differently, and the presence or absence of emotional distress when giving evidence does not necessarily mean that a person is not telling the truth about an alleged sexual offence; and

that it should not be assumed that a person consented to sexual activity because the person wore particular clothing or had a particular appearance, consumed alcohol or any other drug, or was present in a particular location (either generally or at a particular time).

The third reform, also to the Evidence Act, expressly allows the admission of expert evidence relating to the topics dealt with in section 34N.

Finally, the Bill contains a related amendment to the Criminal Procedure Act 1921 to require disclosure of expert reports where the expert evidence relates to the topics dealt with in section 34N of the Evidence Act.

While the prosecution is already required to disclose the evidence it intends to call well advance of trial, the same does not automatically apply to the defendant.

Under section 124(8) of the Criminal Procedure Act, the court may require the defendant to provide the prosecution with a copy of any expert report it proposes to rely on, but equally the court may exercise its discretion to refuse to order the disclosure.

If the expert evidence relates to the conduct of the complainant and deals with misconceptions around consent, it is imperative that the prosecution has the opportunity to consider the report in advance of the trial. The Bill amends section 124(8) of the Criminal Procedure Act to require expert reports of this nature to be disclosed to the prosecution.

Mr President, I commend the Bill to Members and I seek leave to have the Explanation of Clauses inserted in Hansard without my reading them.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal. The measure will commence on assent.

Part 2—Amendment of Criminal Law Consolidation Act 1935

3—Amendment of section 46—Consent to sexual activity

This clause amends section 46 to specify that a person is taken not to freely and voluntarily agree to sexual activity if the person agrees to engage in the activity because of a misrepresentation (whether express or implied) as to the use of a condom during the activity.

Part 3—Amendment of Criminal Procedure Act 1921

4—Amendment of section 124—Expert evidence and evidence of alibi

This is a related amendment to clause 6 and requires the defence to provide the prosecution with a copy of any report obtained from a person who is to be called to give expert evidence at a trial of a kind referred to in proposed new section 34N(2a) of the Evidence Act 1929.

5—Transitional provision

The requirement in clause 4 applies to proceedings relating to an offence that are commenced after the commencement of the Part (regardless of when the offence occurred).

Part 4—Amendment of Evidence Act 1929

6—Amendment of section 34N—Directions relating to consent in certain sexual cases

This clause provides that, in a trial of a charge of a sexual offence where a lack of consent of a person in relation to a particular sexual activity is in issue, the judge must direct the jury as to certain matters set out in the proposed provision (and a court may, in a trial of a charge of a sexual offence, receive expert evidence about any such matter).

7—Transitional provision

The requirement in clause 6 applies to proceedings relating to an offence that are commenced after the commencement of the Part (regardless of when the offence occurred).

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

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