Page 2831 - Week 09 - Tuesday, 11 October 2022
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sexual act, when intoxication is not a defence to sexual assault and given that the jury do not specifically know the effect of intoxication upon the defendant.
Sexual assault commonly occurs in settings where drugs and alcohol are consumed and either or both the victim and the accused are intoxicated. Nevertheless, self-intoxication does not excuse sexual acts without consent. This amendment builds on the significant sexual consent law reform in the Crimes (Consent) Amendment Act 2022, introduced by Dr Paterson, to better align our laws with contemporary community understandings and expectations of consensual sexual activity.
The bill clarifies that a person who is intoxicated through self-induced intoxication is to be treated as if they were sober in determining the fault element of a sexual offence consent provision; that is, whether the accused person had knowledge, was reckless or had a reasonable belief as to consent to a sexual act. In practice, this means that where a person is intoxicated through self-induced intoxication, that state of intoxication is to be considered in a broader sense for context, but the behaviour of the accused is contrasted with what the accused’s mind would have been had they been sober.
I do note that the amendment does not create a presumption that the accused was guilty or culpable just because of self-induced intoxication. All of the fault elements of the offence will still need to be made out for the accused to be found guilty. The amendment also does not change the type of evidence that can be adduced nor the rules for involuntary intoxication or drink spiking. The defence of mental impairment will also remain available to the accused.
The amendment seeks to protect against circumstances where an offender has a distorted or outdated view and belief about sexual consent and appropriate sexual conduct that is inconsistent with the standards expected by the community. As alcohol and/or drug use is a well-established risk factor for sexual assault, the amendment is a crucial change to make.
The bill introduces new, special interim order schemes in the ACT under the Personal Violence Act 2016, which mirrors the Family Violence Act 2016, to ensure that interim personal protection orders and workplace protection orders can remain in force, as long as there is a related charge outstanding in relation to the respondent and the offence is against the applicant. This amendment responds to recommendation 23(n) of the report.
The report highlighted an inconsistency between the interim orders available under the Personal Violence Act 2016 and the interim orders available under the Family Violence Act 2016. The bill reconciles this inconsistency to achieve better protection for victims where there are related and ongoing criminal proceedings.
Special interim protection orders are currently not available to the applicant under the Personal Violence Act 2016. In fact, an order must be finalised within 12 months—plus any extension for non-service of the respondent. Frequently, criminal proceedings take longer than 12 months. It does not make sense that the same protections available to a person seeking a family violence order do not apply to a person seeking a personal protection order or workplace protection order.
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