Overview of sexual offences

25.5 Extensive reforms of the laws relating to sexual offences over the last 25 years have resulted in a new range of sexual offences in most jurisdictions.[4] Key areas of law reform have included a move away from the language of ‘rape’ to that of ‘sexual assault’ as a way of emphasising sexual offences as acts of violence. Related to this was the grading of sexual offences to take account of different circumstances and aggravating factors. The scope of the penetrative offence has also been broadened in all jurisdictions.

Legislative framework

25.6 Each Australian jurisdiction has its own set of substantive and procedural criminal laws. The main point of divergence between jurisdictions is whether the criminal law is codified or remains guided by the common law. Within that distinction, there is a further differentiation as to whether the jurisdiction has adopted the uniform Evidence Acts.[5]

25.7 In the criminal code jurisdictions—Queensland, Western Australia, Tasmania and the Northern Territory—statutes comprehensively set out the criminal law such that ‘all crimes now exist in statutory form as defined by the various codes which have specifically supplanted common law crimes’.[6] In the common law jurisdictions— NSW, Victoria, South Australia and the ACT—any legislation is ‘interpreted in the light of common law precepts unless Parliament has expressly, or by necessary implication, evinced a clear intention to displace the common law’.[7]

[4] See Thomson Reuters, The Laws of Australia, vol 10, Criminal Offences, 10.3, [10].

[5] The uniform Evidence Acts are: Evidence Act 1995 (Cth); Evidence Act 1995 (NSW); Evidence Act 2008 (Vic); Evidence Act 2001 (Tas); Evidence Act 2004 (NI). See Ch 27.

[6] M Bagaric and K Arenson, Criminal Laws in Australia: Cases and Materials (2nd ed, 2007), 18.

[7] Ibid, 18.