Crimes Amendment (Sexual Offences) Bill 2016 (VIC)
Wednesday 29 June 2016 @ 10.36 a.m. | Crime
The Victorian Crimes Amendment (Sexual Offences) Bill 2016 has passed the Legislative Assembly and is currently making its way through the Legislative Council. The Bill will amend the Victorian Crimes Act 1958 and the Summary Offences Act 1966 to update Victorian law in relation to various sexual conduct and offences as well as other procedural matters pertaining to sexual offences.
The Bill sets out to remedy the current system where reliance on common law is necessary to flesh out certain elements of an offence in order to provide defences. The Bill drafts and revises sexual offences in a way that all elements of an offence and relevant exceptions and defences are set out in the Bill.
Background to the Bill
In his second reading speech, Victorian Attorney-General Mr Martin Pakula, highlighted the threefold deficiency with the current Victorian criminal law’s approach to sexual offences. He says:
“[Firstly,] for many offences, Victoria's legislation only sets out some of the elements and defences relevant to an offence. Reliance is then placed on the common law to imply elements into the offence to make it complete. This means that Victoria's laws are not always clear to judges and lawyers, and certainly not to non-lawyers reading the legislation.
Second, the language used to define many sexual offences is unclear and needs to be modernised.
Third, some sexual offences have failed to keep up to date with new ways of offending and changes in technology. For example, the offence of indecent act in the presence of a child can only be committed if the child is physically present with the accused.”
The reform introduced by this Bill will address all these issues by making a law for sexual offences that are as clear, simple, consistent and effective as possible. Mr Pakula is confident that the resulting law will better protect people from sexual offending, especially those vulnerable members of society such as children and those with cognitive impairment or mental illness.
Amendments in the Bill
Sexual Offences Against Children
The primary purpose of the Bill is to protect children against sexual violence and abuse. The Bill will replace current sexual offences against children with a comprehensively reformed set of offences. The offences include sexual penetration of a child, sexual assault of a child, sexual activity in the presence of a child, causing a child to be present during sexual activity or encouraging a child to engage in sexual activity. Furthermore, the Bill will simplify and restructure the language relating to offences against children to provide a clearer and less complex approach.
The Bill will also introduce a number of defences that are more or less implied in the current system. A number of improvements have nevertheless been made to address the gaps in the law. For example, the bill removes the consent element from all exceptions and defences to sexual offences against children, except the 'similarity in age' defence to the offence of sexual penetration of a child under sixteen.
The Bill also revises the laws against child pornography by redubbing it ‘child abuse material’ in order to respond to current trends in technology. The definition of 'child abuse material' is clearer, and, for the first time in Victoria, will include material depicting a child as a victim of 'torture, cruelty or physical abuse', whether or not in a sexual context. This recognises that the trade in depictions of physical abuse of a child can be very harmful, like depictions of sexual abuse.
Sexual Offences Against the Impaired
The Bill will further reform the current laws regarding sexual abuse against persons with cognitive impairment or mental illness by workers of disability or mental health services, or by any other provider of medical and mental health treatment. The Bill adopts new terminologies and structure in this area to ensure that the offences will work effectively in the new service environment brought about by the national disability insurance scheme. It further introduces two new offences of sexual activity in the presence of a person with a cognitive impairment or mental illness and causing such a person to be present during sexual activity. According to Mr Pakula:
“Because the offences are based on the person's vulnerability in the context of the care giving relationship, they do not depend upon, and are not precluded by, legal capacity to consent. Where a person does not have legal capacity to consent, the offences of rape and sexual assault will apply.”
Sexual Activity Directed at another Person
The new offence of ‘sexual activity directed at another person’ will also be introduced by the Bill. The offence covers situations where sexual activity is engaged in with the intention of another person seeing it and becoming distressed or afraid. For instance, the offence may apply where a man jumps out and engages in a sexual activity, such as masturbation, in front of a lone female jogger in an isolated location.
Jury Direction
The Bill provides a clearer and more detailed direction regarding consent and a reasonable belief in consent. As explained by Mr Pakula:
“Trial judges will be able to inform the jury that experience shows there are many different circumstances in which people do not consent to a sexual act. People may not be consenting although not physically injured, subjected to violence or threatened with injury or violence. Directions on consent will also allow trial judges to inform the jury that people react differently and that there is no typical, proper or normal response to non-consensual sexual acts. Juries may also be directed that people can be involved in consensual sexual activity on other occasions but not consent to a particular act with a particular person.”
The current Bill will be one of the largest reforms to sexual offences in Victoria to date and will go a long way to continuing improvements to the criminal justice system.
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.
Sources:
Crimes Amendment (Sexual Offences) Bill 2016, Bill, Explanatory Material, and Second Reading Speech as published on LawOne
