Law reform

24.85 The present Inquiry follows an extensive body of work by law reform commissions[113] and other government bodies[114] on reform of the law and procedure relating to sexual offences. Since the 1970s, there have been successive rounds of legislative and procedural change across Australian jurisdictions.

Focus of reform

24.86 In relation to the substance of sexual offences, reform has focused, at different times and in different jurisdictions, on the following issues:

  • Terminology. Some Australian jurisdictions have moved away from the language of rape to the language of sexual assault.[115] This was generally seen as a way to move away from the emphasis on sexual elements, to focus instead on sexual assault as an assault—that is, as an act of violence. Other jurisdictions have retained the language of rape.[116]

  • Consent. Since the 1990s there has been a move to define consent in legislation. All Australian jurisdictions, with the exception of the ACT, now have a legislative definition of consent.[117] These definitions are based on a communicative model of consent.

  • Definition of sexual assault. Definitions of what constitutes a sexual assault have been broadened, so that, for example, penetrative sexual offences includes penetration by a penis, object, part of a body or mouth.[118]

  • Gender neutral laws. All jurisdictions amended the laws relating to sexual assault or rape so that they are gender neutral. Before this, rape had been specifically defined as an offence perpetrated by a man against a woman.[119]

  • Graded sexual offences. Some jurisdictions introduced graded sexual offences– that is, a range of sexual offences with different penalties attached. This differentiation usually takes account of the presence of physical violence or other aggravating circumstances.[120] It was an approach again intended to focus on sexual assault as an act of violence.

  • Removal of the marital immunity. All jurisdictions legislated to remove the marital immunity.[121]

  • Age of criminal responsibility. With the exception of Tasmania, all jurisdictions removed notions that a person was not capable, simply on the basis of their age, of having or intending to have sexual intercourse.[122]

24.87 In relation to criminal procedure and evidence law, reform has focused on:

  • Evidence of sexual reputation and experience. Legislation was enacted to restrict the cross-examination of complainants and the admission of evidence of complainants’ sexual reputation and prior sexual experience.[123]

  • Protecting counselling communications. Legislation was enacted to protect confidential counselling communications from being disclosed or used in sexual offence proceedings.[124]

  • Jury warnings. Legislation was enacted restricting or providing greater guidance to judicial officers, on warnings to the jury regarding unreliable evidence and corroboration[125] and the implications of delay in complaint.[126]

  • Giving evidence. Legislation was enacted to restrict or provide limits on inappropriate and offensive questioning in cross-examination;[127] and to enable access to other modes of giving evidence, particularly for children and people with a cognitive impairment.[128] This has included the use of pre-recorded evidence, the use of closed circuit television or screens and enabling complainants to give evidence accompanied by a support person.[129]

24.88 At the same time, changes have occurred in relation to police and prosecutorial practices and procedure. For example, as discussed in Chapters 29 to 31, there have been moves towards more specialised and integrated police responses to sexual violence, aimed in part at ensuring that complainants receive appropriate support at the outset from the criminal justice system. In addition, prosecutorial guidelines require the interests of victims to be taken into account in various ways.

Recent work

24.89 A number of important projects and law reform initiatives intended to address continuing concerns with how the criminal justice system responds to allegations of sexual assault have taken place since 2003. These have included the:

  • NSW Criminal Justice Sexual Offences Taskforce;[130]

  • VLRC sexual offences inquiry;[131]

  • Queensland Crime and Misconduct Commission inquiry into the handling of sexual offences;[132]

  • Western Australian government Inquiry into the Prosecution of Assaults and Sexual Offences;[133]

  • South Australian Review of Rape and Sexual Assault Laws;[134]

  • ACT Sexual Assault Response Program;[135] and

  • Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Child Abuse.[136]

24.90 Other recent projects and law reform initiatives have examined aspects of evidence law and the giving of jury directions relevant to sexual assault proceedings. These include:

  • NSWLRC and Queensland Law Reform Commission inquiries examining jury directions;[137] and

  • the Tasmania Law Reform Institute inquiry examining tendency and coincidence evidence.[138]

24.91 In addition, the Standing Committee of Attorneys-General (SCAG), through the work of the SCAG National Working Group on Evidence, has been examining aspects of vulnerable witness protection and the sexual assault counselling communications privilege.[139] The ALRC has been specifically directed not to duplicate this work.[140]

Other legal responses

24.92 As noted at the beginning of this chapter, sexual assault does not only appear in the criminal justice system—it is raised in, and may require a response from, a range of different legal areas, sometimes in relation to the same incident. These areas include:

  • Protection orders. In most jurisdictions, sexual assault is nominated as one of the forms of violence that may ground an application for a civil protection order.[141] Such allegations may be contained in the actual complaint or raised in oral evidence before the court. There is little research available about the extent to which sexual violence is included within protection order proceedings. It has, however, been suggested that sexual violence is rarely referred to expressly in protection order complaints.[142] This has the potential to render this form of violence invisible in these proceedings and, in those cases where it has taken place—but has not been referred to—provides an inadequate picture in which to assess the need for protection. Protection orders and the relationship between protection orders and criminal law proceedings are discussed in Chapter 11.

  • Family law. Sexual violence may be raised in family law proceedings, including in relation to decisions about parenting or property orders. Child protection and the family law system is specifically discussed in Chapter 19. Research suggests that adult sexual assault is rarely raised in family law proceedings.[143] It has been suggested that sexual violence may be less visible than other forms of family violence due to the reluctance of lawyers, and other professionals, to ask specifically about sexual violence.[144] There may be a lack of understanding about how sexual violence is a risk factor in the future seriousness and repetition of family violence and, therefore, how it should be taken into account in any family law determinations. As with civil protection orders, the experience of sexual violence as part of family violence is important in understanding the risk faced by a victim, and in considering the ways in which it might have an impact on determinations about whether and how contact with children should proceed.

  • Crimes compensation schemes. Compensation for victims of sexual assault may be available through the various state and territory crimes compensation schemes. For example, in NSW, persons injured by an act of violence, including a sexual assault, are eligible for an award of compensation between $7,500 and $50,000.[145] In recent years there have been changes to criminal injuries compensation schemes, in some jurisdictions, in terms of how family violence and sexual assault are dealt with, and flexibility around the time limits within which applications must be lodged. An area of concern for sexual assault victims is the manner in which related acts are defined and dealt with under the various statutory schemes. This is a particular issue given that family violence, including sexual assault, is the ‘quintessential repeat crime’.[146] Often these provisions mean that acts perpetrated around the same time, by the same perpetrator, and in similar circumstances, may be treated as related acts—limiting the claim to a single event.[147] This issue is discussed in detail in Chapter 29.

  • Law of torts. The acts comprising sexual assault or family violence also constitute a civil wrong, known as a tort. In particular, the torts of battery, assault and negligence are possible sources of redress for victims of family violence. Bringing an action in tort for assaults and batteries that took place as part of family violence is rare when compared to claims made under the various state and territory compensation schemes. This is because there are a number of barriers that plaintiffs encounter, including: the cost of bringing such an action; the limited prospect of recovery, even if successful; the effect of limitation periods; the difficulty in proving the case, particularly if the events took place some time ago; and the adversarial nature of these proceedings (particularly when compared to the process available under crimes compensation schemes).[148]

24.93 In each of these areas questions may be raised about the visibility of sexual assault and whether the response of the legal system is adequate.

Law is not the only response

24.94 The law (criminal and civil) is not the only mechanism available to respond to the problem of sexual assault. A range of legal and non-legal measures is required in order to substantially reduce sexual violence. This need is particularly clear given the very small number of cases that come to the attention of the criminal justice system. The VLRC recognised this reality, noting that:

An adequate response to the harm of sexual assault must go beyond the criminal justice process and include other mechanisms for assisting people who have been sexually assaulted such as access to information, provision of counselling and support services ... and compensation.[149]

24.95 While the Commissions recognise that non-legal measures are vital in developing an appropriately integrated response to sexual assault, the main focus in this part of the Inquiry is on the interpretation and application of criminal law and procedure. In this context it is important to recognise the process of feedback between the legal system and the community. On the one hand, community attitudes inform the legal system’s responses to sexual assault; on the other, the law—how it defines and responds to sexual assault—plays a key symbolic role in forming community perceptions of sexual violence. As such, the law is a critical mechanism through which understandings of appropriate sexual relationships—based on notions of autonomy and freedom of choice—can be fostered.

[113] See, eg: New South Wales Law Reform Commission, Questioning of Complainants by Unrepresented Accused in Sexual Offence Trials, Report No 101 (2003); New South Wales Law Reform Commission, Review of Section 409B of the Crimes Act 1900 (NSW), Report 87 (1998); Victorian Law Reform Commission, Sexual Offences: Final Report (2004); Queensland Law Reform Commission, Reform of the Law of Rape, Report 21 (1976); Tasmania Law Reform Institute, Warnings in Sexual Offences Cases Relating to Delay in Complaint, Final Report 8 (2006); ACT Law Reform Commission, Report on the Laws Relating to Sexual Assault, Report 18 (2001); Northern Territory Law Reform Committee, Report on the Laws Relating to the Investigation and Prosecution of Sexual Assault in the Northern Territory (1999).

[114] For example, at the national level, see Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999). In NSW: Criminal Justice Sexual Offences Taskforce (Attorney General’s Department (NSW)), Responding to Sexual Assault: The Way Forward (2005); Legislative Council Standing Committee on Law and Justice—Parliament of New South Wales, Report on Child Sexual Assault Prosecutions, Report No 22 (2002); J Bargen, Heroines of Fortitude: The Experiences of Women in Court as Victims of Sexual Assault, Gender Bias and the Law Project (1996). In Victoria: Crime Prevention Committee—Parliament of Victoria, Combating Child Sexual Assault: An Integrated Model (1995); the work of the RLREP, eg, M Heenan and H McKelvie, The Crimes Rape Act 1991: An Evaluation Report (1997). In Queensland: Crime and Misconduct Commission (Qld), Seeking Justice: An Inquiry into How Sexual Offences are Handled by the Queensland Criminal Justice System (2003). In Tasmania: Task Force on Sexual Assault and Rape in Tasmania, Report of the Task Force on Sexual Assault and Rape in Tasmania (1998). In South Australia: see L Chapman, Review of South Australia Rape and Sexual Assault Law: Discussion Paper (2006), prepared for the Government of South Australia. In WA: Community Development and Justice Standing Committee–Parliament of Western Australia, Inquiry into the Prosecution of Assaults and Sexual Offences (2008).

[115] In NSW, WA, ACT and NT, the offence of sexual penetration or sexual intercourse without consent is articulated as one of a number of sexual assault offences: see Crimes Act 1900 (NSW) s 61I; Criminal Code (WA) s 325; Crimes Act 1900 (ACT) s 54; Criminal Code (NT) s 192.

[116]Crimes Act 1958 (Vic) s 38; Criminal Code (Qld) s 349; Criminal Law Consolidation Act 1935 (SA) s 48; Criminal Code (Tas) s 185. All jurisdictions, whether they call the penetrative offence ‘rape’ or ‘sexual intercourse without consent’, have broadened the offence beyond the common law offence of rape which was penile penetration of a women without her consent (or against her will). There are still debates about what is the best approach and most appropriate language to employ: see discussion in M Heath, ‘Disputed Truths: Australian Reform of the Sexual Conduct Elements of Common Law Rape’ in P Easteal (ed) Balancing the Scales: Rape, Law Reform and Australian Culture (1998) 13, 23–24. Professor Reg Graycar has observed that, while some jurisdictions have done away with the language of rape, the ‘phenomenon that women fear is still [called] rape’: R Graycar, ‘Frozen Chooks Revisited: The Challenge of Changing Law/s’ in R Hunter and M Keyes (eds), Changing Law: Rights, Regulation and Reconciliation (2005) 49, 55. See also discussion in J Bargen and E Fishwick, Sexual Assault Law Reform: A National Perspective (1995), prepared for the Office of the Status of Women, [6.2.2.1].

[117]Crimes Act 1900 (NSW) s 61HA; Crimes Act 1958 (Vic) s 36; Criminal Code (Qld) s 348; Criminal Law Consolidation Act 1935 (SA) ss 46–47; Criminal Code (Tas) s 2A; Crimes Act 1900 (ACT) s 67; Criminal Code (NT) s 192. This issue is discussed in detail in Ch 25.

[118] See, eg, Crimes Act 1900 (NSW) s 61H(1).

[119] A number of commentators thought that the move to gender neutrality might lead to improvements in the way that the law dealt with sexual offences as now men would have a ‘stake in making the law of rape work better’: M Heath, ‘Disputed Truths: Australian Reform of the Sexual Conduct Elements of Common Law Rape’ in P Easteal (ed) Balancing the Scales: Rape, Law Reform and Australian Culture (1998) 13, 15. However, other commentators pointed out that gender neutrality obscures ‘who is doing what to whom’, by failing to make explicit the fact that while men can be, and are, sexually assaulted, women and girls are overwhelmingly the victims of these acts (that is to say, that it is a particularly gendered crime: see discussion in S Bronitt and B McSherry, Principles of Criminal Law (2nd ed, 2005), 559; R Graycar and J Morgan, The Hidden Gender of Law (2nd ed, 2002), 364–365. Graycar and Morgan note that one of the ways in which the gendered nature of sexual assault can be recognised is through an objects, or guiding principles, clause: 365. This has been done in Victoria, see discussion in Ch 25.

[120]For a discussion of arguments in favour and those against graded approaches see Heath in P Easteal (ed) Balancing the Scales: Rape, Law Reform and Australian Culture (1998), 22.

[121] For express statutory provisions see Crimes Act 1900 (NSW) s 61T; Crimes Act 1958 (Vic) s 62(2); Criminal Law Consolidation Act 1935 (SA) s 73(3); Crimes Act 1900 (ACT) s 69. The remaining jurisdictions have removed the immunity by inference.

[122]Crimes Act 1900 (NSW) s 61S; Crimes Act 1958 (Vic) s 62(1); Criminal Code (Qld) s 29; Criminal Code (WA) s 29; Criminal Law Consolidation Act 1935 (SA) s 73(2); Crimes Act 1900 (ACT) s 68; Criminal Code (NT) s 38. In Tasmania, a male child under the age of seven is presumed to be incapable of having sexual intercourse: Criminal Code (Tas) s 18(3).

[123]Criminal Procedure Act 2009 (Vic) s 339(1); Criminal Law (Sexual Offences) Act 1978 (Qld) s 4; Evidence Act 1906 (WA) s 36A; Evidence Act 1929 (SA) s 34L(1); Evidence Act 2001 (Tas) s 194M(1); Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 49; Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4.

[124] For current provisions see: Criminal Procedure Act 1986 (NSW) ch 6 pt 5 div 2; Evidence (Miscellaneous Provisions) Act 1958 (Vic) pt 2 div 2A; Evidence Act 1906 (WA) ss 19A–19M; Evidence Act 1929 (SA) pt 7 div 9; Evidence Act 2001 (Tas) s 127B; Evidence (Miscellaneous Provisions) Act 1991 (ACT) pt 4 div 4.5; Evidence Act 1939 (NT) pt VIA. Queensland has not enacted specific legislation protecting sexual assault counselling communications.

[125]Evidence Act 1995 (Cth) s 164(3); Evidence Act 1995 (NSW) s 164(3); Evidence Act 2008 (Vic) s 164(3); Criminal Code (Qld) s 632(2); Evidence Act 1906 (WA) s 50; Criminal Code (Tas) s 136; Evidence Act 2001 (Tas) s 164; Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 69, 70.

[126] Uniform Evidence Acts, s 165B; Evidence Act 1929 (SA) s 34CB.

[127] Uniform Evidence Acts, s 41; Evidence Act 1977 (Qld) s 21(2); Evidence Act 1906 (WA) s 26(3); Evidence Act 2001 (Tas) s 41(2); Evidence Act 1939 (NT) s 16(2).

[128] For example, in relation to the use of pre-recorded evidence: Criminal Procedure Act 2009 (Vic) s 368; Evidence Act 1977 (Qld) div 4, 4A; Evidence Act 1906 (WA) ss 106HB; Evidence Act 1929 (SA) s 13A; Evidence (Miscellaneous Provisions) Act 1991 (ACT) div 4.2B; Evidence Act 1939 (NT) s 21E.

[129] These issues of criminal procedure and evidence law are discussed in Chs 27–28.

[130] Criminal Justice Sexual Offences Taskforce (Attorney General’s Department (NSW)), Responding to Sexual Assault: The Way Forward (2005).

[131] Victorian Law Reform Commission, Sexual Offences: Final Report (2004).

[132] Crime and Misconduct Commission (Qld), Seeking Justice: An Inquiry into How Sexual Offences are Handled by the Queensland Criminal Justice System (2003).

[133] Community Development and Justice Standing Committee–Parliament of Western Australia, Inquiry into the Prosecution of Assaults and Sexual Offences (2008).

[134] L Chapman, Review of South Australian Rape and Sexual Assault Law: Discussion Paper (2006), prepared for the Government of South Australia.

[135] Office of the Director of Public Prosecutions (ACT) and Australian Federal Police, Responding to Sexual Assault: The Challenge of Change (2005).

[136] Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Little Children are Sacred: Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse (2007).

[137] New South Wales Law Reform Commission, Jury Directions, CP 4 (2008); Queensland Law Reform Commission, A Review of Jury Directions: Discussion Paper, WP 67 (2009).

[138] Tasmania Law Reform Institute, Evidence Act 2001 Sections 97, 98 & 101 and Hoch’s Case: Admissibility of Tendency and Coincidence Evidence in Sexual Assault Cases with Multiple Complainants, Issues Paper 15 (2009).

[139] See Ch 27.

[140] The Terms of Reference are set out at the front of this Report.

[141] The main exception is Western Australia which does not specifically refer to sexual offences under the Criminal Code (WA). Queensland includes ‘indecent behaviour without consent’—which could potentially include a range of unwanted sexual behaviour.

[142] In NSW, see J Wangmann, ‘“She Said …” “He said …” : Cross Applications in NSW Apprehended Domestic Violence Order Proceedings’, Thesis, University of Sydney, 2009, 152–153.

[143] L Moloney and others, Allegations of Family Violence and Child Abuse in Family Law Children’s Proceedings: A Pre-reform Exploratory Study (2007), prepared for the Australian Institute of Family Studies, 69, Table 5.3.

[144] Women’s Legal Services NSW, Consultation, Sydney, 23 September 2009.

[145] Under the Victims Support and Rehabilitation Act 1996 (NSW).

[146] R Felson and A Cares, ‘Gender and Seriousness of Assaults on Intimate Partners and Other Victims’ (2005) 67 Journal of Marriage and the Family 1182, 1183.

[147] See, eg, the procedural history in JM v Victims Compensation Fund Corporation [2009] NSWSC.

[148] Notwithstanding such difficulties, women have successfully brought such actions for physical and sexual abuse perpetrated as part of family violence. See, eg, Morris v Karunaratne [2009] NSWDC; Giller v Procopets (2008) 40 Fam LR 378; Varmedja v Varmedja [2008] NSWCA.

[149] Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [1.53].