Hansard debates

         CRIMES AMENDMENT (SEXUAL OFFENCES AND OTHER MATTERS) BILL 2014
                                 Second reading

  Mr CLARK (Attorney-General) -- I move:
  That this bill be now read a second time.
Speech  as follows incorporated  into Hansard in  accordance  with resolution of
house:
  Rape and sexual assault are  among the most despicable crimes, which can cause
  severe and devastating harm to victims. The  government is committed to better
  protecting  the  community from these horrible crimes, holding perpetrators to
  account and providing support to victims.

  Existing  sexual offence  laws  are  highly complex  and  confusing to  apply.
  Uncertainty in the law  has  led  to  numerous  appeals and retrials, which is
  highly  traumatic  for  victims  and  their   families,   and  contributes  to
  unnecessary court delays.
  This  bill introduces important  reforms to Victoria's sexual  offence laws to
  improve the  effectiveness of the law  and ensure that perpetrators  of sexual
  offences are  held  to  account.  It will make sexual offence laws clearer and
  fairer, and  improve the  way that the law deals  with cases  of repeated  and
  systematic sexual abuse.
  These  reforms  are  based  on proposals by the Department of Justice  in  its
  Review of Sexual Offences -- Consultation Paper released in October 2013.
  The bill also addresses the phenomenon of 'sexting'.

  It implements  recommendations  made  by  the  Victorian Parliament Law Reform
  Committee in its  report on the  inquiry  into sexting. Sexting  involves  the
  sharing  of sexually explicit images  through the internet,  mobile phones and
  social media. It has become increasingly common, especially between teenagers.
  It is important that this practice  is regulated to provide protection to both
  children  and adults against exploitative sharing of  intimate  images,  while
  ensuring  that  teenagers  do  not  face  unwarranted  prosecution  for  child
  pornography offences.
  Improvements to key sexual offences
  The bill will  introduce clearer and  simpler sexual offences into  the Crimes
  Act 1958 to cover:
    rape;

    rape by compelling sexual penetration;
    sexual assault;
    sexual assault by compelling sexual touching;
    assault with intent to commit a sexual offence; and
    threat to commit a sexual offence.
  The bill will modernise  outdated language in  existing  offences and make  it
  easier  for juries  to determine  whether or not an accused is guilty of these
  offences.

  The bill will introduce a new  fault  element  into these offences, which will
  apply when 'the  accused  does not reasonably  believe  that the other  person
  consents' to the sexual activity. This means that the accused will come within
  the fault  element if they did not believe that the complainant was consenting
  or, if  they  did have such a belief, it was  not a reasonable one. This fault
  element is conceptually  simpler than the  current  law, which is  complex and
  confusing. It will be significantly easier for juries to understand and judges
  to apply, which will reduce the number of appeals and retrials.
  The  new fault element  is also consistent with  laws in other  jurisdictions,
  including the United Kingdom, New Zealand and New South Wales, where the fault
  element has worked successfully for a number of years.  It is  also similar to
  the  approach  in Queensland,  Tasmania  and Western Australia.  It means that
  offenders will not escape liability for committing sexual offences where their
  belief that the other person is consenting is unreasonable.

  The new fault element requires a person to have objectively reasonable grounds
  for their belief that another person consents to sexual activity with them. It
  will not be a  matter of what the accused  thinks it is reasonable to believe.
  Instead,  the  courts  will  apply  a more  objective  standard that  reflects
  community standards of what  is a reasonable  belief.  The bill provides  that
  whether  or  not  an accused  reasonably  believes  that the  other  person is
  consenting  to an act  depends on the circumstances.  This includes any  steps
  that the accused has taken to find out whether the  other person consents. The
  bill   expressly  excludes  the   accused's  self-induced  intoxication  as  a
  circumstance  to consider. Otherwise, it will be a matter for the jury in each
  case  to  determine  whether  the  accused's  belief  was  reasonable  in  the
  circumstances.

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  The bill  contains a list of circumstances  in which a person  is taken not to
  have  consented  to  a sexual act. This reflects the current law and  includes
  when a person is asleep or unconscious, and when they submit to an act because
  of  force  or  fear  of  force. The  bill provides  that when  an accused  has
  knowledge  that one of these circumstances exists, this is enough to show that
  he or she did not have a reasonable belief in consent.
  The bill  will  also  amend  the  Jury  Directions  Act  2013 to simplify jury
  directions in sexual offence trials. Under  the bill, the parties  may request
  that  the  trial  judge  direct  the  jury  on  the  meaning  of consent,  the
  circumstances in which a person is taken not to have consented to a sexual act
  and reasonable belief in consent. This will allow directions to be tailored to
  the  particular  circumstances of the  case. This will  encourage shorter jury
  directions and minimise unnecessary and unhelpful directions.

  Course of conduct charge
  As the Parliamentary  Family and Community Development Committee's Betrayal of
  Trust  report found, repeated and  systematic sexual abuse of  children is all
  too  common. The government  is committed to  providing effective criminal law
  responses to this insidious problem.
  Regrettably, the criminal  law  has not responded  effectively to some of  the
  most serious  instances of repeated sexual abuse. At common law, a high degree
  of specificity in  charges laid against an accused is traditionally  required.
  This is  difficult to  satisfy in  cases of  repeated sexual  abuse, as it  is
  common for complainants to have trouble recalling precise details of each  act
  of abuse.

  In  order  to  address  this  issue,  the  offence  of  maintaining  a  sexual
  relationship with a child under 16 years was introduced in section 47A of  the
  Crimes  Act  in  1991. This offence is now called 'persistent sexual abuse  of
  child  under the  age of 16'. This offence allows less specific evidence  by a
  complainant to be sufficient to identify and prove a charge.
  However, the applicability of the section  47A offence remains  limited. Under
  section 47A, it is not sufficient for a complainant  to  give  evidence  about
  what the accused would typically  or routinely do. Such evidence is admissible
  to prove  a  course  of  conduct. Instead, section 47A requires proof of three
  separate offences. This  means that the  complainant must remember details  to
  distinguish between different acts of abuse. This  requirement is difficult to
  satisfy  where  sexual abuse  is  ongoing,  as complainants  commonly  find it
  difficult to remember precise details of each act of abuse.

  The bill will address these  limitations  in  the current law by introducing a
  new way of charging repeated sexual abuse. This reform is  based on  a similar
  approach used in the United Kingdom. The bill will enable  the  prosecution to
  file a  'course  of  conduct' charge  alleging  multiple incidents  of  sexual
  offending  against  the  same  complainant.  Under  this   new  approach,  the
  prosecution will not need  to prove particular incidents of abuse or  identify
  distinctive  features differentiating  any  of the  incidents.  Therefore  the
  complainant  will  not need  to  provide details  about  separate incidents of
  abuse. This is a significant change, but  the  law  remains  fair  because the
  prosecution will need to prove the course of conduct beyond reasonable doubt.
  Where an accused has  been found guilty of an  offence in a course of  conduct
  charge,  the  court will  be  required  to impose  a  sentence reflecting  the
  totality of the offending.

  This important reform  will ensure that the law responds effectively  to cases
  of repeated  and  systematic sexual  abuse,  and  that perpetrators  of  these
  horrible crimes can be brought to justice.
  The  course of conduct charge will also be  available  in  relation  to  other
  specified offences such  as theft, money  laundering and obtaining a financial
  advantage by deception. While  the need for this new approach is most pressing
  in relation  to  sexual offences,  it  will also have  considerable  value for
  charging high-volume offences which typically involve an element of dishonesty
  or deception, which can number in the hundreds or thousands. Charging a course
  of conduct of defrauding  thousands of victims  is  more practical and  better
  reflects the criminal behaviour than filing thousands  of separate charges for
  each of the incidents.
  Removing restrictions on prosecuting sexual offences committed prior to 1991

  The bill will remove  inappropriate  time  limitations which currently prevent
  the prosecution  of  certain sexual  offences  alleged to have  been committed
  against children prior to 1991.
  Prior to 1991,  criminal  prosecutions  for  sexual offences committed against
  children had  to  be commenced within  12  months from  the  alleged  offence.
  Research  shows  that  more  than  half of child sexual abuse victims  do  not
  complain to anyone for over 12  months.  Although  this time limit was removed
  from  legislation  in  1991, the restriction  on  commencing  prosecution  for
  offences committed before that  time  still  applies.  This  effectively gives
  perpetrators  of  these  heinous  crimes  immunity from prosecution, which  is
  completely inappropriate.
  The bill ensures  that perpetrators of  sexual crimes against children  can be
  brought to justice by removing these inappropriate time limits.

  Exceptions to sexual offences against children under 16
  The bill will remove the exceptions to  sexual offences against children under
  16 years, which purport to apply  where the  accused is  married to the child.
  These exceptions are redundant, since it is no longer possible for a person to
  be legally married in Australia under the age of 16.
  Removing  the  exceptions  will  make the  law  clearer  and  end  unjustified
  community concern that these  provisions  create  a  'loophole'  through which
  children can be abused.
  Exceptions to child pornography offences

  In recent  years, the growing  phenomenon of 'sexting'  has  prompted concerns
  that  teenagers  may  be  inappropriately   criminalised  by  existing   child
  pornography laws. It is important that  the criminal law is updated to reflect
  changing  uses of  technology,  while  providing  protection  against  harmful
  behaviour.
  Currently, any  sexually  explicit depiction of a person under 18 years old is
  potentially  child pornography.  Teenagers  who create,  possess or distribute
  explicit  images  of themselves  or  their  peers commit  a  child pornography
  offence. 

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Consequently, teenagers who  engage  in sexting risk  a criminal conviction  and
possible  registration on  the  sex offenders  register.  When non-exploitative,
consensual  sexting  occurs  between  peers,  these  serious  consequences   are
unwarranted.
  To address this  concern,  the bill introduces  four exceptions to  the  child
  pornography  offences.  The  exceptions  aim  to   capture  non-predatory  and
  non-exploitative sexting. They  do so by focusing on age and the nature of the
  act  depicted.  In  relation  to age, the exceptions only apply to sexting  by
  minors. Once a person turns  18, these exceptions will no longer be available.
  Further,  where explicit  images  of minors  are  shared,  the exceptions  are
  limited  to sharing between peers -- that is, the minor  must not be more than
  two years  older  than another minor  depicted  in the  image  (or  reasonably
  believe this to be so).

  In relation to the nature of the  act depicted,  the exceptions will not apply
  to an image that depicts a criminal offence punishable by imprisonment, unless
  the minor involved in the sexting is the victim of the offence depicted. It is
  important  that  the exceptions do  not protect minors who  create, possess or
  transmit child pornography that depicts a criminal activity.
  The restrictions concerning age and the nature of the act depicted will ensure
  that   child  pornography  offences   continue  to  protect  children  against
  exploitative and predatory behaviour.
  The four new exceptions will also apply to the publication and transmission of
  child pornography  offences  in the  Classification  (Publications, Films  and
  Computer Games) (Enforcement) Act 1995.
  New summary offences

  Currently,  the  law  provides  limited   protection  against   non-consensual
  distribution of intimate images. This behaviour can  cause  considerable harm,
  particularly if an image 'goes viral'. This bill creates two summary  offences
  designed to protect individuals against such harm.
  The first new offence prohibits intentional distribution of an  intimate image
  where that  distribution  is  contrary  to  community  standards of acceptable
  conduct. This offence  does not apply if the  person in the image  is an adult
  and has consented (expressly or impliedly) to the distribution. This exception
  does not apply to consent  by children, due to their greater vulnerability and
  need for protection. The offence is  punishable  by  a  maximum  of  two years
  imprisonment.

  The  second  offence prohibits  a  person from  threatening  to  distribute an
  intimate image of another person depicted in  the image, and the  distribution
  would be contrary to community standards of acceptable conduct. The person who
  makes the threat must  intend  that  the  other  person  will believe, or will
  probably believe, that the person will carry out the threat.  The  offence  is
  punishable by a maximum of one year's imprisonment.
  The bill provides guidance to courts to determine the application of community
  standards of acceptable conduct in a particular case. The court is directed to
  consider  the context in  which the image  was  captured and distributed,  the
  personal circumstances of the person  depicted, and the degree  to which their
  privacy  is  affected  by  the distribution.  The  purpose  of  the  community
  standards test is to ensure  that the offences do  not unjustifiably interfere
  with individual  privacy  and freedom of  expression,  while at the  same time
  targeting exploitative, harmful and non-consensual behaviour.

  Conclusion
  This bill makes significant improvements to sexual offence laws. It will  hold
  offenders  of  horrible sexual crimes to account but make sure that minors are
  not inappropriately prosecuted for child pornography offences when they engage
  in sexting with their peers.
  I commend the bill to the house.
Debate adjourned on motion of Mr NOONAN (Williamstown).
Debate adjourned until Thursday, 4 September.