In light of the ever-increasing revelations of sexual assaults in Victoria and the recent findings released by the Royal Commission into Child Sexual Abuse, amendments to strengthen our laws were paramount.
The most recent wave of change in this space was the introduction of the Crimes Amendment (Sexual Offences) Act 2016 (Vic). These changes kicked off on 1 July 2017 and aim to tighten the current framework by laying out all the essential elements of an offence/defence (rather than just relying on judge determined law). The legislature also aims to modernise the language and terminology surrounding sexual offences and recognise the dynamic nature of family relationships in Australia.
Some important changes introduced by the Crimes Amendment (Sexual Offences) Act 2016 (Act) are:
1. Introduction of another consent negating circumstance:
Where a person does not consent if:
“the person is so affected by alcohol or another drug as to be incapable of withdrawing consent to the act” (s36(2)(f))
Although this consent negating circumstance was argued by the Prosecution in cases and considered by the courts, it was not clearly elicited in the legislation. It covers situations where an individual originally gives genuine consent but then becomes so affected by drugs or alcohol as to become incapable of consenting. So, if an individual loses capacity to consent, any consent previously given ceases to operate.
2. Scope of ‘sexual activity’ under the new s35D
The entirely new inclusive definition of ‘sexual activity’ applies to various sections under Division 8. It states that an activity may be sexual due to:
The area of body that is involved in the activity, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female or a person who identifies as a female;
The fact that the person engaging in the activity seeks or gets sexual arousal or sexual gratification from the activity; or
Any other aspect of the activity, including the circumstances in which it is engaged.
This last point highlights the legislature’s intention that a variety of factors must be taken into account in determining whether an activity constitutes a ‘sexual activity’.
This new broad definition of ‘sexual activity’ is used in a number of offences such as s 48 (a new provision covering sexual activity directed at another person).
3. New offence of covering ‘Sexual activity directed at another person’ (s 48)
This section creates a new offence that covers a broad spectrum of sexually intimidating behaviours (and sexual activities) that can occur in a public or private place. Limitations of the old section included a restriction to exposure of genitals which did not cover other sexually intimidating behaviours. And, also the exposure had to occur in or be within view of a public place. Now, s 48 covers other sexually intimidating behaviours and instances occurring in private. The only restriction is that the accused must intend the seeing of the sexual activity to cause distress to the other person (or be reckless to that).
4. Changes to sexual offences against children
Sexual offences against children are now covered under subdivision 8B. This reformed set of offences apply to children under the age of 16 and/or children aged 16 and 17 and under the care or authority of someone.
Sexual penetration of child under the age of 16
Significant updates have been made to the structure and language of the old s49B (now s45(1) and (2)). For example, this provision removes complex circumstances, and sets out each step clearly. With this increased clarity, the Victorian Parliament hopes to make it easier for non-lawyers, lawyers and judges to read and apply the legislation to cases.
Additionally, the maximum penalty of this offence has been increased to reflect its seriousness and the dire impact that it has on children.
Sections broadened to capture offending via technology and have extra territorial application
The new s 47(1), causing a child under 16 to be present during sexual activity, additionally allows for offending via technology and also has extra-territorial application (applies to individuals in other states and not in Australia). This wider scope is important in capturing new ways of offending (eg. over the internet). Similarly, scope has also be widened for s 49(1) relating to children 16 or 17 under someone’s care or supervision and for s58 which applies to offenders who encourage children to engage in sexual activity.
Removal of the consent element for child abuse defences and exceptions
With crimes committed against children, the question of consent arises in the context of defences and exceptions for these crimes. It is important to note that the amendments remove the element of consent from all exceptions and defences (except for the ‘similarity in age’ defence to sexual penetration of a child under 16). The rationale for this is that children cannot consent to sexual activity in the same way as adults, by reason of age, or relationship of care, supervision and authority. The removal of the consent element solidifies this rationale and provides further clarity to individuals reading and applying the law.
Similar to old law, this Act replicates the exception based on marriage between the accused and a child aged 16 or 17 and under his or her care. Now, this exception also extends to domestic partnerships, in certain circumstances. This will avoid discrimination against unmarried couples and including same-sex couples. This reform is consistent with the government’s commitment to ensure all forms of discrimination are removed from our laws.
So what do these changes mean?
These legislative changes will need to be communicated to society. For prevention purposes, schools and organisations educating students about consent and our sexual offence laws should discuss this scenario with young students. For example, students should be educated on:
- the impact of alcohol and drugs on a person’s ability to give consent and the implications if it negates consent;
- the scope of activities that could constitute a ‘sexual activity’ and as such, would require consent before engaging in it; and
- the technological aspect of sexual activities, especially in the case of children where being subjected to or presented sexual activity online, for example via Skype, Snapchat or other similar forums, can be reported.
These changes might also mean that organisations using online means of engaging or interacting with children will need to re-think their strategies or implement mechanisms to reduce the possibility of abuse.
This updated Crimes Act 1958 (Vic) makes the framework easier to navigate and more current by capturing digital technologies. However, the exact implications of these amendments and whether they indeed protect Victorians from sexual abuse is yet to be seen and will hopefully become evident as the courts start applying these new sections to cases.