Page 2833 - Week 09 - Tuesday, 11 October 2022
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promotes the message that sexual violence is unacceptable and may act as a general deterrence for potential offenders or for the accused to commit further sexual offences, thus improving overall criminal justice outcomes for the community.
The bill omits section 80D of the Evidence (Miscellaneous Provisions) Act 1991, in line with recommendation 23(k) of the report, noting that section 80D is at odds with the recent amendment to section 67(4) of the Crimes Act 1900 made by the Crimes (Consent) Amendment Act 2022. Section 80D of the Evidence (Miscellaneous Provisions) Act 1991 provides that, in a sexual offence proceeding, the judge must, in a relevant case, direct the jury that, in deciding whether the accused person was under a mistaken belief that a person consented to a sexual act, the jury may consider whether the belief was reasonable in the circumstances.
However, section 67(4) of the Crimes Act 1900, as substituted by the Crimes (Consent) Amendment Act 2022, provides that the jury must, rather than may, consider whether any belief the accused person has, or may have, that the other person consents to the act is not reasonable in the circumstances. These two sections are clearly at odds with each other. This amendment is technical but crucial to dispel any misconceptions about the complainant’s evidence and consent, and it also allows the trial judge to give appropriate directions to the jury.
The final amendment relates to the definition of “sexual act” in the Crimes Act 1900. The bill amends the Crimes Act 1900 to substitute “sexual touching” with “an act of indecency” in the definition of “sexual act” to remedy an unintended consequence. Since the introduction of the Crimes (Consent) Legislation Amendment Act, there has been some uncertainty and inconsistency raised regarding the definition of consent in section 50C of the Crimes Act 1900. In particular, the amendment introduced the term “sexual touching”, which had been adopted from the New South Wales Crimes Act 1900. This term “sexual touching” is similar to the ACT offence of “act of indecency”. While section 50C defines “sexual touching”, reliance on this term and definition may create doubt as to whether “sexual touching” is indeed intended to include an “act of indecency”.
The bill now prescribes an act of indecency as an example of a sexual act to clarify that relevant sexual offence consent provisions, including those relating to an act of indecency in sections 60 and 61(5)(b) of the Crimes Act 1900, must be considered in accordance with section 67, which prescribes the additional fault element of consent: reasonable belief as to consent. This gives effect to the intent of the recent amendments made by the Crimes (Consent) Amendment Act 2022 and upholds the principle that consent to a sexual act is informed agreement that must be freely and voluntarily given and communicated by saying or doing something.
In conclusion, the report noted that sexual violence offences are under-reported, under-charged and under-prosecuted in the ACT and revealed that many victim-survivors do not have faith in the current criminal justice system. It is hoped that this bill will improve the criminal justice system so that the ACT can respond to the needs of victim-survivors in meaningful ways.
The bill fosters a better understanding in the community of what is acceptable conduct and what is not. Law reform is a crucial component of implementing change, as
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