The paper states that
Many of Victoria’s sexual offence laws are complex, inconsistent and unclear. Nowhere is this problem worse than with the offence of rape. These problems make it extremely difficult, if not impossible, for a judge to explain the law to a jury in a clear and intelligible manner and for the jury to understand and apply the law to the facts in the case. These problems have resulted in numerous appeals, convictions being set aside and retrials being ordered, most notably in Worsnop v The Queen (2010) 28 VR 187 and Getachew v The Queen  VSCA 164.
There have been many calls for significant reform of Victoria’s rape laws since these decisions. These calls have emanated from the judiciary, lawyers, academics, victim/survivor support groups and the media. The Attorney-General has publicly committed to reforming sexual offence laws and jury directions in order to address the current complexity, inconsistency and uncertainty. Victoria’s sexual offence laws are also failing to respond adequately to the problem of persistent sexual abuse of a child. The current approach does not work effectively for child victims/survivors who, because of the repeated and systematic nature of the offending against them, are unable to distinguish between the different instances of abuse. A fresh approach to this problem is needed. While rape laws have been frequently amended in the last 20 years, other sexual offences have not received the same attention. As a consequence, some have become outdated, inconsistent and unclear in their scope, structure and terminology. Other offences fail to recognise that sexual offences can be committed in new ways through advances in technology.
This review examines rape and other sexual offences in the Crimes Act 1958, focussing not only on policy issues, but also on the structure and components of each offence. This practical focus is essential for effective reform. Our aim is to make sexual offences as clear, simple, consistent and effective as possible. Simpler and clearer offences will assist judges to direct juries, and juries to understand and apply the law. This will help to reduce successful appeals against conviction for a sexual offence. A better functioning criminal justice system will help to improve the experience of victims/survivors who report a sexual offence to the police.
The County Court is Victoria’s principal trial court. Almost 50% of all trials that go to verdict in the County Court are sexual offence trials. In 2002/03 only 36% of all trials were sexual offence trials. Over the last 10 years there has been an 81% increase in the number of sexual offence trials. This reflects an increase in the proportion of sexual offence cases as well as an increase in the overall number of trials conducted. Better laws will deliver substantive justice in individual cases and, in combination with other proposed reforms to jury directions, will assist in reducing delay. This paper contains 49 proposals for, and 10 questions about, reform of Victoria’s most important sexual offences and procedure. The paper also contains a number of options and questions about possible reforms. The Department of Justice seeks feedback on each of the proposals, options and questions in this paper in order to provide advice to the government on how best to reform sexual offences.The paper goes on to address particular issues, as follows -
Rape and compelling sexual penetration
The existing rape laws are highly complex and difficult to explain to juries. As a result, they have been the subject of numerous appeals and retrials, which are extremely stressful for victims/survivors, create delays in the criminal justice system and are costly. Many rape convictions have been set aside on appeal; the complexity of the law is the principal reason for the appeals succeeding.
Many of the problems stem from the fault element in relation to the complainant not consenting. For the offence of rape, the principal fault elements refer to the state of mind of the accused: was the accused aware that the complainant was not consenting or might not be consenting? However, if the accused argues that he or she did not have that state of mind because he or she believed the complainant was consenting, which often occurs, the issues become very complex. The jury must consider whether the accused’s belief was reasonable in all the circumstances. However, the trial judge must ‘balance’ this direction by explaining that whether the accused had reasonable grounds goes only to the issue of whether the accused actually had the belief.
There may also be evidence that the accused was aware that the complainant was asleep, or was so intoxicated as to be incapable of consenting, or that the complainant was submitting because of fear of force or harm. The Crimes Act specifies that this evidence is relevant to the accused’s claimed belief that the complainant was consenting but does not indicate that it has any relevance to the fault elements, namely whether the accused was aware that the complainant was not or might not be consenting. In this kind of situation, the trial judge must give the jury a number of directions concerning these issues.
The accused’s awareness of the above kinds of factors (e.g. that the complainant was asleep) is relevant to determining whether the accused’s belief that the complainant was consenting was reasonable in the circumstances. This must be understood in the limited way of assisting the jury to determine whether the accused actually or genuinely believed the complainant was consenting. And if the accused did so believe, the nature and strength of this belief must then be assessed in determining whether this prevents the prosecution from proving beyond reasonable doubt that the accused was aware that the complainant was not consenting or might not be consenting.
Applying these directions to disputed evidence, where the evidence is also often the subject of directions about the purposes for which certain evidence may or may not be used, makes these directions even more difficult in a real case.
These directions are extraordinarily complex. The VLRC called for the review of sexual offence laws in its Jury Directions: Final Report (2009). Not surprisingly it has led to the Court of Appeal commenting that these laws throw into doubt the expectations of the jury system that the trial judge can explain the law and that the jury can comprehend the law, in all its permutations. Further the Court of Appeal has called for the ‘urgent and wholesale amendment’ of these laws.
In addition, there is a concern that the offence of rape is too narrow because it does not criminalise situations in which the accused’s belief that the complainant consented is completely unreasonable in all the circumstances.
In Part 3, we present three options for reforming the fault element in relation to the complainant not consenting in the offence of rape.
Option 1 would maintain the current law’s alternative fault elements with regard to the complainant not consenting, but seek to improve the clarity and structure of the offence and address a number of matters that are currently too complex or uncertain.
Option 2 would replace the three current alternative fault elements with two new alternative fault elements: either the accused knew that the complainant was not consenting or did not believe on reasonable grounds that the complainant was consenting. This option addresses the inherent functional complexities in the current fault element. Option 2 replaces these technical legal issues with more practical tests that can be applied by a jury. It also incorporates a policy proposal that a person who has no reasonable grounds for believing that another person is consenting to sexual intercourse should be guilty of the offence of rape.
Option 3 would split the proposal in Option 2 into two separate offences. The first offence would cover where the accused knew that the complainant was not consenting or did not believe that the complainant was consenting. The second offence would cover where the accused did not have reasonable grounds for believing that the complainant was consenting. This second offence would be called ‘sexual violation’ and would be subject to a lesser penalty than rape.
Part 3 also proposes a number of changes to the other elements of rape and the offence of compelling sexual penetration in order to make these offences simpler, clearer and easier to explain to juries.
Sexual assault and related offences
The offences of indecent assault and assault with intent to rape are inadequate in several respects. The notion of ‘indecency’ is unclear and outdated, and the definition of ‘assault’ is complex and unclear. The elements of the offence of assault with intent to rape are also unclear, and the maximum penalty for this offence (10 years imprisonment) is too low to properly reflect its seriousness as an offence preparatory to rape.
In Part 4 we discuss the forms of non-penetrative sexual assault that require proof of physical contact between the accused and the complainant. Our proposed changes would:
- replace the offence of indecent assault with a new offence of sexual assault, which would modernise the terminology of the existing offence, and clarify its elements and scope
- revise the offence of assault with intent to rape in order to clarify its elements, in particular the meaning of ‘intent to rape’
- increase the maximum penalty for assault with intent to rape from 10 years imprisonment to 15 years imprisonment, and
- create a new offence of compelling sexual touching to complement the offence of compelling sexual penetration.
In Part 10 we discuss offences related to sexual assault that do not require proof of physical contact between the accused and the complainant. Our proposed changes would:
- replace the current offence of threatening to assault with intent to commit rape with a clear new offence of threat to rape
- create a new offence of performing a sexual act intended to cause another person to experience fear or distress, and
- replace the current statutory and common law offences of wilful and obscene exposure with a clear and revised summary offence of sexual exposure.
Sexual intercourse with a child
In Part 5 we discuss sexual penetration offences against a child. The current approach to sexual penetration offences against children under 16 – a single offence with three different maximum penalties – differs from the approach used for all other sexual offences. It is unnecessarily complex for police, lawyers, judges and juries. In addition, the maximum penalty for sexual penetration of a child under 16 (but not under 12) warrants further consideration.
Our proposal is to simplify the current approach by replacing the offences in sections 45 and 48 of the Crimes Act with three new offences:
- sexual intercourse with a child under 12
- sexual intercourse with a child under 16, and
- sexual intercourse with a child aged 16 or 17 who is under the care, supervision or authority of the accused.
We also propose changes that would:
- increase the maximum penalty for sexual intercourse with a child under 16 from 10 years to 15 years imprisonment in all situations (by removing the need for the prosecution to prove that the child is under the care, supervision or authority of the accused), in order to reduce the large gap in the maximum penalty for offences against a child under 12 and a child aged 12 or older
- use a description of conduct that is consistent with the conduct in rape offences
- expand the definition of ‘care, supervision or authority’ to include a broader range of people within religious organisations who provide religious care or religious instruction to a child
- modernise and clarify the available exceptions and defences to the offences, and the allocation of the burden of proof in relation to each exception and defence, in order to reduce the complexity of jury directions concerning the defence of consent and reasonable mistake, and
- make offences generally much clearer and easier to prosecute and to explain to juries.
Sexual touching of a child, and sexual activity in the presence of a child
The current offences of committing an indecent act with or in the presence of a child contain a number of complexities and limitations. The notion of an ‘indecent’ act is unclear, outdated and requires modernisation. In addition, these offences have not kept pace with technological changes and need to be broadened to include sexual activity directed at a child through the use of technology.
In Parts 6 (dealing with sexual touching of a child) and 7 (dealing with sexual activity in the presence of a child), we propose changes that would:
- create separate new offences of sexual touching of a child and sexual activity in the presence of a child
- clarify the conduct involved in each new offence by distinguishing clearly between contact forms of sexual activity with a child (that do not involve sexual penetration) and non-contact forms of sexual activity with a child
- replace the notion of ‘indecent act’ with the simpler concepts of ‘sexual touching’ (consistent with the approach in the proposed offence of sexual assault) and ‘sexual activity’
- expand what it means to engage in conduct ‘in the presence of’ a child, in order to capture different ways of committing child sexual offences, including over the internet, and
- clarify fault elements, exceptions and defences in relation to the current offences, which should assist judges in directing juries.
Encouraging and grooming a child to engage in sexual conduct
The current offences of soliciting or procuring a child to take part in an act of sexual penetration or an indecent act are unclear, outdated and rarely used. The Cummins Report, Protecting Victoria’s Vulnerable Children (2012), recommended that Victoria enact an internet grooming offence. In Part 8 we propose changes that would:
- provide a more modern, useable and responsive scheme of preparatory sexual offences, by replacing the current soliciting or procuring offences with new offences of encouraging a child to engage in sexual conduct
- expand criminal liability to apply where a person encourages a child to engage or be involved in sexual conduct, regardless of whether the child in fact engaged in any sexual conduct
- remove the requirement that an accused be aged 18 or older, and
- create a new offence of grooming a child under 16 for sexual conduct, which would apply whether the grooming occurs online, face to face or by any other means.
Exceptions and defences to sexual offences against children
In this review, we distinguish between ‘exceptions’ and ‘defences’ to sexual offences. We define an ‘exception’ as a provision which limits the scope of an offence by setting out particular conditions under which no offence is committed. In contrast, a ‘defence’ provides a separate basis for exculpating the accused, even where he or she has committed an offence. An accused who falls within an exception commits no offence, whereas an accused who successfully relies on a defence commits the offence, but is not guilty of the offence.
In Part 9 we discuss in more detail the rationale for, and scope of, each exception and defence to child sexual offences. We also propose a number of changes to make the exceptions and defences more consistent, less complex and easier to use, including clarifying the allocation of the burden of proof.
Changes to other sexual offences
In Part 11 we propose a number of changes to incest offences and the current offence dealing with persistent sexual abuse of a child.
We pose an important question in relation to the current incest offences. In all reported cases of incest involving a parent, step-parent or lineal ancestor and their child (of any age), the child is the victim/survivor. However, the Crimes Act makes it an offence for a person (aged 18 or over) to have sexual intercourse with their parent or lineal ancestor. The very existence of this offence contributes to a perception that child victims/survivors are complicit in some way in incestuous sexual abuse. The VLRC recommended in its Sexual Offences: Final Report (2004) that this offence be repealed. Part 11 poses the question whether this offence be kept, repealed or amended to provide an exception for adult children who were previously the victim of child sexual abuse.
We also propose minor changes to update the terminology and scope of the incest offences. These changes would modernise the definition of ‘child’ and related terms to reflect new types of parentchild relationships, and expand the scope of the offences to include domestic partnerships.
Procedural reforms and prosecuting multiple charges
Parts 12 and 13 address some current problems concerning the way certain kinds of sexual offending are prosecuted. Part 12 deals with repeat and systematic sexual offending. The current offence of persistent sexual abuse of a child fails to deal effectively with this most serious form of sexual offending. This is because it requires victims/survivors to provide specific details of each different instance of offending, and this is often not possible due to the repeated and systematic nature of the sexual abuse. As a result, either no offence can be charged or only isolated offences can be charged. Several attempts have been made by parliaments across Australia to address the problems identified by the High Court in the case of S v The Queen (1989) 168 CLR 266.
No other Australian jurisdiction has found a way of dealing effectively with this heinous form of sexual offending. However, these problems have been successfully avoided or addressed in other jurisdictions such as the United Kingdom and New Zealand.
In Part 12 we propose a significant new approach to enable repeat offending to be charged. This new approach, based on the United Kingdom’s laws, could be used effectively for child sexual offences, but is not limited to these offences. This new approach would allow the filing of a charge (known as a ‘multiple offences charge’) that alleges a course of conduct of offending. Under this approach, it would not be necessary to identify specific offences in separate charges. This approach uses the very problem, the repetitive nature of offending, as the source of the solution. It essentially replaces the need for specific details with the need for proof of a course of conduct. This new approach would provide a fair and effective process for dealing with allegations of repeated sexual offences.
Part 13 deals with problems which can arise with sexual offences where one episode or occasion of offending gives rise to multiple charges because of the way the definition of rape, for example, covers a variety of types of sexual penetration. Such indictments treat the different instances of penetration as if they were distinct episodes of offending. To cover the whole episode, every separate penetration is charged as rape. This can make the jury’s task more complex than it needs to be and arguably may not properly reflect the true extent of the offender’s criminality. Sometimes this results in an indictment being ‘overloaded’. In Part 13 we propose a way to simplify such prosecutions by allowing the prosecution to allege multiple offences, in relation to the one occasion of offending, in the one charge.
The volume of charges can also be a problem because of limitations concerning when a court may take into account the surrounding circumstances, when these circumstances constitute a separate offence. The general presumption is that a person cannot be sentenced for an offence with which they have not been charged (Newman and Turnbull v The Queen  1 VR 146). This results in the prosecution charging lesser offences to ensure that the court can take all relevant circumstances into account when sentencing an offender. Part 13 proposes a simpler way for the court to consider less serious offences when sentencing, thereby allowing the prosecution to file indictments with fewer charges, which will make the jury’s task much easier