Telephone: 03 9269 0247
Fax: 03 9269 0440
Email: sarah.winch@vla.vic.gov.au
20 January 2014
Melbourne Office
350 Queen St
Melbourne VIC 3000
GPO Box 4380
Melbourne VIC 3001
DX 210646 Melbourne VIC
Telephone: 03 9269 0234
1800 677 402
www.legalaid.vic.gov.au
ABN 42 335 622 126
Mr Greg Byrne
Director, Criminal Law Review
Department of Justice
GPO Box 4356
MELBOURNE VIC 3001
Dear Mr Byrne
Review of Sexual Offences
Thank you for the opportunity to provide a submission to the Department of Justice Review of
Sexual Offences Consultation Paper.
Victoria Legal Aid (VLA) has the state’s largest defence practice specialising in sexual offences. We
have extensive specialist experience in providing advice and representation to people charged with
sexual offending. In addition, VLA has an extensive Family and Children’s Law Program that
prioritises women and children experiencing or at risk of experiencing family violence which includes
sexual violence. Our Civil Law Program also acts for victims of crime through VOCAT. This range of
practice experience gives us a balanced perspective.
VLA notes the importance of this review from a community safety perspective and in supporting
vulnerable victims. We also acknowledge that some maximum penalties are too low. Accordingly,
this submission focuses on the following three issues:
Elements of rape
VLA agrees that the law of rape should be reviewed and simplified. Reform is needed as the fault
element of rape is fraught with conceptual difficulty and too commonly leads to appeals and retrials
which cause unnecessary trauma and stress for victims and accused people.
Victoria Legal Aid – 20 January 2014
-1-
Of the three proposals canvassed in the paper, VLA supports Option 2. It simplifies the current law
and also addresses the anomaly of a person whose belief in consent is unreasonable being
acquitted, by importing the requirement that belief in consent be ‘on reasonable grounds’.
While VLA generally is of the view that placing an objective test on the mens rea element of a very
serious criminal offence should be avoided, VLA considers that a person should not have a defence
to rape based on an unreasonable belief in consent.
Option 2 places an onus on people engaging in sexual intercourse to ensure that the other person is
consenting. This reflects contemporary standards of acceptable sexual behaviour, and is the proper
policy approach towards criminal responsibility. This approach allows a jury to look at the whole of
an accused’s behaviour in complete context and directly deal with reasonableness of belief, as
opposed to assessing the strength of the belief, and the consistency of that belief with an awareness
of consent.
A concern that VLA has about Option 2 is how it would apply to accused who have a cognitive
impairment or intellectual disability. This group of accused persons may genuinely hold a belief in
consent and be convicted of rape if that belief is not considered to have been held on reasonable
grounds. Although any relevant impairment is likely to be raised before a jury and so form part of the
consideration of reasonableness, VLA considers that there is benefit in explicitly providing a
safeguard for accused who fall outside of the mental impairment and unfitness framework, but who
are vulnerable under this proposal due to their cognitive and intellectual impairment.
VLA does not support Option 1 as it would preserve existing complexities with the law and continue
to be difficult for judges and juries. The existing anomaly of an acquittal being available even where
an accused’s belief in consent was unreasonable would also continue under this proposed option.
We also do not support Option 3. VLA considers that it is conceptually difficult and will not advance
the desire for clarification of the law for juries. The phrase “does not have reasonable grounds for
believing that B is consenting” creates a reverse onus on the accused and has the potential for
conviction notwithstanding a lack of guilty intention. It also provides juries with a middle ground
option which would relieve them of addressing the fundamental question of consent, and would
likely reduce acquittals for rape in favour of convictions for the lesser offence of sexual violation.
Offences of encouraging sexual conduct
VLA has some concerns about the proposed offences of encouraging a child to engage in sexual
conduct, or to be involved in sexual conduct.
This offence is broad and may inadvertently capture good-faith behaviour that is designed to provide
appropriate guidance or information to young people. This behaviour may include a parent or older
sibling assisting with safe sex education. An example that may arise is a parent providing condoms
for her 15-year-old daughter to have sex with her 18-year-old boyfriend. Some jurors may consider
that, as required for the offence, this is contrary to community standards. However, there may be
sound reasons why parents should engage with their children in this way and the criminal law should
not act to fetter parental discretion where the child’s best interests are the guiding consideration.
While it might be argued that the prosecution would not charge under these circumstances it is
clearly open on the elements of the offence proposed, and care should be taken to avoid legislation
that may result in unfair and perverse charges or convictions. VLA therefore suggests that an
intention to receive sexual gratification should be an element of this offence.
Victoria Legal Aid – 20 January 2014
Of further concern for VLA is the proposal to remove the existing requirement that only a person 18
or over can be charged with this type of offending. For example, this amendment could act to
criminalise two 15-year-old schoolgirls discussing proposed consensual but unlawful1 sexual
encounters with 18-year-old males, or exchanging condoms. This may produce an unintended
consequence of suppressing openness about safe sex and adolescent sexuality more generally. It
would have the direct consequence of stigmatising young people as sexual offenders when they
present no risk to the safety of the community.
Given recent acknowledgement of areas of deficiency in how particular criminal laws intersect with
the consensual sexual behaviour of young people, (for example, in the context of ‘sexting’2), VLA
recommends that the unnecessary stigmatisation and registration of young people as sexual
offenders should be avoided. This allows prosecutorial and post sentence supervisory resources to
be directed to people who present a real risk to the safety of others. VLA therefore suggests that this
charge should only be available where the accused is 18 years of age or older.
Charging multiple offences as one broad ‘course of conduct’ charge.
VLA acknowledges the difficulty faced by many complainants who are unable to provide sufficient
detail of their historical sexual assault allegations and accept that this proposal would greatly benefit
such complainants. Historical sex offences are universally challenging for complainants, prosecution
and accused as the passage of time inevitably leads to diminished recollection and limits the
availability of witnesses and forensic evidence.
However, removing the requirement for specificity creates a very real risk that people will be wrongly
convicted of serious offences on evidence that is impossible to meaningfully test or challenge.
VLA notes that in an environment in which both the complainant and the accused are disadvantaged
by the passing of time, it is important that appropriate balance is achieved so as not to undermine an
accused’s presumption of innocence, especially given the serious consequences that follow a
conviction.
Whilst an overwhelming majority of sexual assault complaints are genuine, there are a small number
of cases where allegations will be made that are incorrect, false or exaggerated3. Requiring
reasonable particulars that are able to be tested in the courts is one way to guard against the
possibility of improper convictions, as it allows an accused to produce exculpatory evidence (for
example, alibi evidence).
Further, the proposal that a single charge can be laid alongside a course of conduct charge as a
statutory alternative is extremely problematic and would likely result in already complex jury
directions becoming even more complicated. The jury would need to be directed about course of
conduct and then about the alternative (including the particulars it must be satisfied of) regarding a
specific one incident charge. It would then presumably be directed on how to use the evidence led in
the uncharged acts. This unnecessary complexity is likely to result in increased appeals and retrials
and not necessarily address concerns around historical cases in particular.
Defence of mistaken belief as to cognitive impairment
1
Unlawful because of the age difference between the consensual sexual partners.
In which the Victorian Government accepted all of the recommendations in the VLA submission in its response (VLA
submission available here: http://www.legalaid.vic.gov.au/about-us/news/sexting-report-strikes-right-balance ).
3 The case of Greensill v The Queen [2012] VSCA 306 is an example of the importance of this balancing exercise. Ms
Greensill’s conviction for sexual offending against two young boys was overturned by the Court of Appeal primarily on
the basis that the evidence disclosed a real likelihood that the two complainants collaborated, and a real possibility of
concoction.
2
Victoria Legal Aid – 20 January 2014
In relation to the supplementary paper, Review Of Sexual Offences Against Persons With A
Cognitive Impairment, VLA has concerns about proposal 12. Under that proposal, an accused
person providing medical or therapeutic services not related to a person’s cognitive impairment
would now need to show on the balance of probabilities that he or she believed on reasonable
grounds that the person did not have a cognitive impairment.
The current defence requires proof that the accused was not aware that the person had a cognitive
impairment. VLA has concerns about the reach of this proposal as it casts an unfairly onerous
burden on this class of service providers. The relatively recent introduction of this section expanded
the range of service providers that would be caught by such offending, and acknowledged that a
less onerous defence should be available for people whose service is not related to a person’s
cognitive impairment. VLA’s practice experience does not suggest a need for reform in this area as
the use of these charges is not extensive, and we consider that the procedural concerns behind this
proposal do not warrant interference with the existing and recently introduced sections.
VLA is available to discuss the many other individual proposals. If you would like to discuss please
contact Helen Fatouros, Director of Criminal Law Services on 9269 0129 or via email on
helen.fatouros@vla.vic.gov.au.
Yours faithfully
BEVAN WARNER
Managing Director
Victoria Legal Aid – 20 January 2014