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Victoria amends Crimes Act sexual offence laws: What schools should know

7/06/17
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On 1 July 2017, the Crimes Amendment (Sexual Offences) Act 2016 (Vic) (the Amending Act) takes effect to strengthen existing sexual offence laws to better protect children from abuse.

The Act was passed in the Victorian Parliament in September 2016 and reforms more than 50 sexual offences in the Crimes Act 1958 (Vic) (Crimes Act). The commencement of the Amending Act completes a reform process that began in 2010 as part of the Victorian Government’s overhaul of sexual offence laws.

Victorian Attorney-General Martin Pakula, has said that the updated Crimes Act will provide a comprehensive overhaul of the state's sexual offence laws to keep Victorians safe as "many of our current sexual offence laws are incomplete, too complex and use outdated language." While schools will welcome the strengthening of these laws to enhance the safety of their students, they may well feel daunted by yet another wave of legal reform.

This article will discuss the current problems with Victoria’s sexual offence laws, the key amendments to the Crimes Act and how these changes are relevant to schools.

Refer to our Briefing Paper for more information on the amendments and other legal updates affecting non-government schools: Victoria: 2017 Legal Update.

Current problems with sexual offences

The Victorian Government’s examination of current sexual offence laws identified three broad problems with the current regime in Victoria.

Firstly, Victoria’s legislation only sets out some of the elements and defences relevant to a sexual offence. Due to this ambiguity, reliance is placed on the common law to imply elements into an offence to make it complete, meaning the law is not always clear to judges, lawyers and the public.

Secondly, the language used to define sexual offences in the Crimes Act is often unclear and in need of modernisation. Words such as ‘indecent’ and ‘obscene’ were used by the Government as examples of ‘opaque and outdated’ language. Additionally, Victoria’s current sexual offence laws do not adequately recognise changed and modern family relationships in its definitions.

Third, sexual offence laws have often failed to keep up with new ways of offending via changes in technology. For example, the Crimes Act currently states that the offence of an indecent act in the presence of a child can only be committed where the child is physically present with the accused. This fails to consider online offending using new digital technologies such as video chat or SnapChat.

The Amending Act has taken strong steps to rectify these current problems and addresses the current complexity, inconsistency and uncertainty of Victoria’s sexual offence laws.

Sexual offences against children

The Betrayal of Trust Inquiry and the Royal Commission into Institutional Responses to Child Sexual Abuse have emphasised the need for more effective action to prevent sexual offending against children.

Division 1, Part 1 of the Crimes Act currently addresses a variety of sexual offences, including sexual offences against children, in subdivisions (8A)-(8G). From 1 July, these subdivisions have been substantially updated.

A new subdivision 8B will replace existing sexual offences against children with a comprehensively reformed range of new offences. The Amending Act simplifies the structure and language of existing offences providing greater clarity in the law. That said, because the Amending Act updates many existing offences in this area of the Crimes Act, a detailed analysis is required to understand what:

  • conduct formally prohibited by the Crimes Act is still prohibited, albeit under a new section, with new titles and different language; and
  • what conduct is newly prohibited under entirely new sections in the Crimes Act.

For example, existing section 49A: Indecent act with a 16 or 17 year old child, has now been replaced by:

  • new section 49E - Sexual assault of a child aged 16 or 17 under care, supervision or authority; and
  • new section 49G - Sexual activity in the presence of a child aged 16 or 17 under care, supervision or authority.

While the concept of 'care, supervision or authority' is present in the current Crimes Act in various offences and with varying definitions, a new section 37 provides a new central definition and expands upon the list of persons who will be in such a position to now include "a religious or spiritual guide, or a leader or official (including a lay member) of a church or religious body, however any such guide, leader, official, church or body is described, who provides care, advice or instruction to a child under their care, supervision or authority.'' Teachers, sports coaches and counsellors are also included.

Two key additions to this section of the Crimes Act are the additional offences of “preparatory sexual conduct." Existing sexual offences against children do not cover all such conduct occurring in advance of, or irrespective of, a sexual offence. To address this gap, the Amending Act introduces two new offences of:

  • section 49K: Encouraging a child under the age of 16 to engage in, or be involved in, sexual activity; and
  • section 49L: Encouraging a child aged 16 or 17 under care, supervision or authority to engage in, or be involved in, sexual activity.

''Encourage'' is defined to include suggest, request, urge and demand.  Examples of such encouragement includes offering money or gifts or threatening harm. It can be done in person or by electronic communication. An example of conduct prohibited by these offences is an adult asking a child to watch pornography.

These offences are broader than the grooming offence which was introduced by the Victorian Government in 2015. The new sections of the Crimes Act will apply where the encouraged sexual activity does not constitute a criminal offence.

Other key changes include:

  • the grooming offence will be located at section 49M (currently section 49B); and
  • the failure to protect offence will be located at section 49O (currently section 49C).

Other key changes to subdivision 8B include removing the element of consent from existing defences to sexual offences against children. These reforms reflect the fact that children cannot give consent in the same way as adults do to sexual activity.

A positive step forward

In the Second Reading Speech from the Upper House, the Minister for Training and Skills Steven Herbert states that “reform to our sexual offence laws comes at a time when our society is fully recognising the devastating, long-lasting effects of sexual offending.”

The Amending Act has comprehensively addressed key problems with Victoria’s current sexual offence laws – improving the clarity, effectiveness and currency regarding new digital technologies used for offending.

Schools should revise their child protection policies to update any revised sections in the Crimes Act. It is also critical that all schools are aware of the amendments and how they affect broader child protection issues in their school environments and educate their staff accordingly.

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About the Author

Cara Novakovic

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