Each Australian jurisdiction has its own set of substantive and procedural criminal laws. The main point of divergence between the 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.
‘Rape’: the penetrative sexual offence
Chapter 16 includes a brief overview of federal, state and territory law in relation to penetrative sexual offences, aggravated sexual assaults, indecent assault, acts of indecency and assaults with intent to commit sexual acts. The chapter notes the various statutory extensions and modifications to the common law crime of rape in each jurisdiction and the differences in the language and scope of the offences.
Question 16–1 Do significant gaps or inconsistencies arise among Australian jurisdictions in relation to sexual offences against adults in terms of the:
- definition of sexual intercourse or penetration;
- recognition of aggravating factors;
- penalties applicable if an offence is found proven
- offences relating to attempts; or
- definitions of indecency offences?
Question 16–2 Do these gaps or inconsistencies have a disproportionate impact on victims of sexual assault occurring in a family violence context? If so, how?
Sexual offences against children and young people
Each jurisdiction provides a range of offences concerning sexual conduct with children. For example: sexual intercourse; attempts to have sexual intercourse; acts of indecency; procuring or grooming a child for ‘unlawful sexual activity’; and abducting a child with the intention of engaging in unlawful sexual activity. Absence of consent is generally not an element of these offences. Offences against children are commonly articulated in terms of the age of the victim. This gradation generally reflects the seriousness of offences against very young children. Accordingly, the sentences attached to those offences are higher than for those against older children.
There is inconsistency in the age of consent—the age at which young people are considered able to consent to sexual activity—across the jurisdictions. The age of a sexual assault victim may be relevant as an element of sexual offending and to the availability of defences.
The Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth), concerning child sex tourism offences, sets the age of consent at 16 years of age. According to the Explanatory Memorandum, this ‘strikes the appropriate balance between the need to protect vulnerable persons from sexual exploitation, and the need to allow for sexual autonomy’. The Commissions agree with this approach.
Proposal 16–1 Commonwealth, state and territory sexual offences legislation should provide that the age of consent for all sexual offences is 16 years.
Question 16–3 How should ‘similarity in age’ of the complainant and the accused be dealt with? Should it be a defence, or should lack of consent be included as an element of the offence in these circumstances?
Question 16–4 At what age should a defendant be able to raise an honest and reasonable belief that a person was over a certain age?
Persistent sexual abuse of a child
All jurisdictions have introduced offences in relation to the ‘persistent sexual abuse of a child’, ‘maintaining a sexual relationship with a young person’, or the ‘persistent sexual exploitation of a child’. Generally these offences capture a number of unlawful sexual acts—not necessarily of the same kind—against a child within the one indictment. The provisions clearly 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’. Instead, reasonable particularity for the period during which the offence(s) 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’.
Question 16–5 Has the offence of ‘persistent sexual abuse’ or ‘maintaining a relationship’ achieved its aims in assisting the prosecution of sexual offences against children in the family context, where there are frequently multiple unlawful acts? If not, what further changes are required?