Australian Institute of Criminology

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Introduction

In 2013, the Australian Institute of Criminology (AIC) was contracted by the Royal Commission into Institutional Responses to Child Sexual Abuse (the Commission) to undertake a review of sexual offence legislation in Australia, particularly as it related to children. This review (Boxall, 2014) contained detailed information about all legislation that had been enacted as at 31 December 2013.

Since the initial report was published, a number of states and territories have revised or updated legislation pertaining to sexual offences in Australia. Therefore, in October 2015, the Commission contracted the AIC to update the previous review to encompass all legislation enacted as at 31 December 2015. Any legislative changes made after this date are not included in this review.

Key changes that have occurred since 31 December 2013 include;

  • Victoria:
    • changes have been made to the definition of sexual penetration (Crimes Act 1958);
    • inclusion of additional offences including ‘failure by a person in authority to protect child from sexual offence’ and ‘failure to disclose sexual offence committed against child under the age of 16 years’ (Crimes Act 1958);
  • New South Wales: Crimes Act 1900 was amended to increase the penalty for ‘sexual intercourse - child under 10’ from 25 years to life imprisonment; and
  • Australian Capital Territory: Crimes Act 1900 was amended to change the terminology from ‘child pornography’ to ‘child exploitation material’.

Structure and scope of this report

This report provides a brief overview of the offences that an individual who sexually abuses a child in an institutional setting may be charged with at the end of 2015. Information provided for each of the identified offences includes:

  • the location of the offence in the respective state or territory’s legislation;
  • the age of the victim (where relevant);
  • aggravating factors—for the purpose of this review, restricted to factors relating to:
    • the age of the child;
    • the relationship between the offender and victim;
    • whether the victim has an intellectual impairment, physical disability or mental illness; and
    • the maximum penalty.

The offences included in this review have been divided into a six sections:

  • contact sexual offences where the child is below the legal age of consent (16, 17 or 18 years old depending on the jurisdiction and nature of the sexual act);
  • contact sexual offences where the child is above the legal age of consent;
  • contact sexual offences where the age of the victim is not specified;
  • non-contact sexual offences;
  • child pornography offences (production); and
  • offences for which institutions and/or their representatives that were aware of child sexual abuse may be charged.

Consistent with the previous report, only offences related to individuals located within Australia are included in this review.

Definitions

For the purpose of this review, child sexual abuse was defined as the:

…involvement of dependent, developmentally immature children and adolescents in sexual activities that they do not fully comprehend, to which they are unable to give informed consent, or that violate the social taboos of family roles (Kempe & Kempe 1978: 60).

This definition was chosen for a number of reasons. First, it acknowledges the child’s limited ability to give informed consent. Second, the definition encompasses both contact offences (eg fondling of genitals and/or breasts, masturbation, oral sex, vaginal or anal penetration, fondling of breasts etc) and non-contact offences (eg exposing the child to pornography, grooming and sexual self-manipulation).

The definition of ‘child’ used in this review was taken from the Commission’s Terms of Reference, which was in turn taken from the United Nations Convention on the Rights of the Child 1989. In this report, child is defined as a human being who is below the age of 18 years.