Model Criminal Code Proposals For Sexual Offences

Minister for Justice and Customs, Senator Amanda Vanstone, today released Sexual Offences Against the Person a report from the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General.

The Model Criminal Code discussion paper on sexual offences was released in August 1996 and followed by extensive nationwide consultation, including public seminars in each State and Territory.

The report Sexual Offences Against the Person was prepared after this consultation and forms part of the Model Criminal Code Project, which aims to ensure greater uniformity in criminal law across Australia. Earlier papers dealt with other non-fatal violence offences such as assault, abduction and stalking; slavery and fatal offences such as murder and manslaughter.

"The criminal law often raises moral issues because it is about what types of behaviour society is prepared to condone, and what types of behaviour we find unacceptable." Senator Vanstone said.

"Sexual offences cannot be left out of the model criminal code, and this means that we must confront some difficult issues.

"The Model Criminal Code proposes clear and precise offences which are intended to provide a foundation for consistent laws throughout Australia. At the moment the law in relation to sexual offences varies markedly from State to State.

The offences:

"The key sexual offences outlined in the report include unlawful sexual penetration, the Model Criminal Code offence which covers rape, and the offences of compelling sexual penetration, indecent touching and compelling indecent touching.

"The Committee has given particular attention to sexual offences against children and sexual offences against young people by persons in a position of trust.

"The Model Criminal Code incorporates a maximum sentence of 25 years imprisonment for the sexual penetration of a young child.

"To ensure that offenders can be prosecuted where a child, or an adult who was abused as a child, cannot remember the precise time of an offence, the Model Criminal Code incorporates an offence of persistent sexual abuse of a child. This offence also carries a maximum sentence of 25 years imprisonment.

"After consultations, the Committee has also included a new offence in the Model Criminal Code which covers offences committed against a young person by someone who is in a position of authority. This offence covers circumstances where someone misuses a position to authority to obtain consent from a young person who is over the age of consent.

The age of consent

"The Committee's consultations have shown that there is no community consensus on the appropriate age of consent for sex.

"The Committee's report points out that it would be desirable to have a uniform age of consent across the States and Territories and that one age of consent should apply to straight, gay and lesbian sex. However, the report makes no recommendation on the age of consent which should be adopted by the States and Territories.

"The Committee recognises that the age of consent is a moral issue as well as a legal issue, and the committee does not claim expertise with regard to morality.

"I emphasise that the Commonwealth will not support any measure which results in a lowering of the age of consent for any group.

Incest:

"After consultations, the Committee has included an offence of incest in the Model Criminal Code.

"Originally the Committee thought that this behaviour would be covered by the offences which relate to children. However, the report recognises that there is a need to ensure that the law is clear on this point, and that the offences in the Model Criminal Code apply to where the 'consent' of a young adult is corrupted by long­standing abuse by a family member.

Sexual offences counselling immunity:

"The report released today also responds to consultations on provisions relating to sexual offences counselling immunity.
"The Model Criminal Code provisions provide that counselling communications are generally immune from disclosure in court. The model procedures limit trial access to these records to cases where it is absolutely necessary for a fair trial. For example, where the rape allegations are primarily based on a repressed memory revealed to a counsellor, proof of the allegations will often not be possible without disclosing details of what happened at counselling.

Still for Discussion:

"While the paper is the final report on these important issues from the Model Criminal Code Officers Committee, all Ministers will be briefed on any comments made in response to the report before considering whether the Model Criminal Code provisions should be included in State and Territory laws.

"I stress that the report does not express the views of the Commonwealth, State or Territory Governments or individual Attorneys-General. The report has been prepared by officials in recognition that people will comment further on the recommendations before any action is taken by governments."

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