Persistent sexual abuse of a child

25.51 All jurisdictions have introduced offences in relation to the ‘persistent sexual abuse of a child’,^[101] ‘maintaining a sexual relationship with a young person’,^[102] or the ‘persistent sexual exploitation of a child’.^[103]

25.52 The impetus for the enactment of these offences was recognition of the practical difficulties encountered in successfully prosecuting child sexual offences. The requirement of particularity in child sexual offences—that is, precise details of single incidents—fails to capture the multiple, repetitive experiences of many children, particularly in the context of sexual abuse by family members.^[104]

25.53 As then NSW Attorney General Jeff Shaw QC explained in the second reading speech for the Crimes Legislation (Child Sexual Offences) Bill 1998:

children are often unable to give precise details of offences, particularly where the alleged sexual assaults took place over many years, involved numerous occasions of abuse, and the accused was in a position of trust or authority. … [I]f the prosecution is unable to prove particulars of the time, date and place of an allegation of child sexual abuse, then the accused cannot be prosecuted. … The Government is of the firm view that the time has come to introduce legislation to better protect children. This bill accomplishes that purpose. By creating the offence of persistent sexual abuse of a child, we recognise the reality of continuing or prolonged child sexual abuse.^[105]

25.54 Generally these offences capture a number of unlawful sexual acts^[106]—not necessarily of the same kind—against a child within the one indictment. The provisions stipulate that ‘it is not necessary to specify or to prove the dates and exact circumstances of the alleged occasions on which the conduct constituting the offence occurred’.^[107] Instead, reasonable particularity for the period during which the offences are alleged to have taken place is required, and there must be a description of the ‘nature of the separate offences alleged to have been committed by the accused during that period’.^[108] Judicial criticism of the provisions has highlighted the problems associated with such lack of particularity, specifically the potential to jeopardise the defendant’s right to a fair trial and the impact on the admissibility of evidence.^[109]

25.55 Most Australian jurisdictions require the approval of the Attorney-General or Director of Public Prosecutions (DPP) before proceedings for the offence may be commenced;^[110] and the maximum penalty for the offences is relatively similar across the jurisdictions—ranging from life imprisonment in Queensland and South Australia,^[111] to 20 years imprisonment in Western Australia.^[112]

25.56 Various inquiries and reviews have indicated that the persistent sexual abuse provisions are rarely charged and that the specific provisions do not address the problems in the area.^[113] This view was echoed in submissions to this Inquiry and is discussed further below.

Consultations and submissions

25.57 In the Consultation Paper the Commissions asked whether the offence of ‘persistent sexual abuse’ or ‘maintaining a relationship’ had achieved its aims in assisting the prosecution of sexual offences against children in the family context, where there are frequently multiple unlawful acts.^[114]

25.58 The majority of stakeholders were supportive of the policy rationale underlying the introduction of ‘persistent sexual abuse’ type offences, particularly in a family violence context, but highlighted that this is an area in which there ‘is an implementation gap between written law and its practice’.^[115] Most stakeholders who addressed the issue indicated that the provisions are ‘profoundly under utilised’.^[116]

25.59 Some stakeholders outlined concerns about the potentially oppressive operation of the provisions and their impact on the rights of the accused, given the absence of particularity and resulting difficulties for the defence.^[117] Similar concerns have been raised in the past, including by the MCCOC.^[118]

25.60 The Office of the Director of Public Prosecutions (NSW ODPP) expressed the view that the NSW provision requires recasting because it is under-utilised for three reasons:

Firstly the reading down of the nature and purpose of the section by the Court of Criminal Appeal, secondly the failure of the section to sufficiently relieve the burden on the complainant to particularise offences and thirdly, by the requirement that the DPP sanction the laying of the charge.^[119]

25.61 In relation to the requirement for DPP approval, the NSW ODPP stated that:

while the reasoning behind the sanction requirement was sound in 1998, as the offence was of a novel nature and should only be used in cases of substantial abuse, the [Sexual Assault Review Committee] question that the sanction is still necessary to commence proceedings. It does seem, by reference to the Police complaints that the charge is not being considered, that the practicalities and the resources involved in sanctioning the charge are prohibitive to the proper application of the section.^[120]

25.62 Women’s Legal Service Queensland identified another practical limitation of the provisions where persistent sexual abuse occurs over a lengthy period, during which time the victim becomes an adult. Acts which occur after the child becomes 18 years of age are either consensual, in which case no offence has been committed unless it is incest, or non-consensual, and therefore constitute a separate criminal offence. However, the Legal Service emphasised that this assumes that victims of persistent sexual abuse have the capacity to consent—which in many instances neither recognises nor reflects the reality of the lives of young people who are subjected to such abuse.^[121]

25.63 National Legal Aid and Legal Aid NSW suggested that persistent sexual abuse offences would ‘benefit from further investigation by the NSW Bureau of Crime Statistics and Research or the Australian Institute of Criminology’.^[122]

Commissions’ views

25.64 The Commissions reaffirm the need for ‘persistent sexual abuse’ type offences in recognising and responding to the realities of child sexual abuse—particularly in a family violence context. As discussed by the MCCOC, the question in considering such offences is one of appropriate balance between addressing the difficulties faced by the prosecution in particularising sexual abuse and protecting the defendant’s right to a fair trial.^[123]

25.65 The current legislative provisions in this area appear to be under-utilised, in part due to the limits of current legislative formulations, and factors related to judicial interpretation and the exercise of prosecutorial discretion. In a general sense it appears that the provisions, in at least some jurisdictions, have not been effective in overcoming the need to particularise offences, which was the rationale behind their introduction.

25.66 Jurisdictions such as Victoria and South Australia have enacted amendments intended to address under-utilisation of these offences. For example, in the revised South Australian provision, reference to ‘persistent sexual abuse of a child’ was replaced with ‘persistent sexual exploitation of a child’. The offence now focuses on acts of sexual exploitation that comprise a course of conduct, rather than requiring a series of separate particularised offences.^[124] The NSW Attorney General has referred the issue of recasting the persistent sexual abuse provisions in NSW^[125] to a government Sex Offences Working Party.^[126]

25.67 Further work is required across jurisdictions to establish why persistent sexual abuse type offences are not being used, and in jurisdictions where they are, how the offences can be reformed to address the difficulties faced by both the prosecution and defendants in these cases. The Commissions, therefore, recommend that the Australian and state and territory governments review the utilisation and effectiveness of these offences, with a particular focus on offences committed in a family violence context.