Legislative Assembly for the ACT: 2003 Week 8 Hansard (19 August) . . Page.. 2825 ..
MR STANHOPE (continuing):
sought the views of key stakeholders such as criminal justice agencies and sexual assault victim advocates about the recommendations of the commission and the model code sexual offence provisions.
The format of the response is to set out, briefly, the relevant existing law, the commission's recommendations, the relevant code provisions, some of the views expressed by stakeholders and, finally, the government's view. The government agrees with most of the commission's recommendations and, for the most part, the commission's recommendations coincide with the approach to sexual offences law taken in the model criminal code. The government intends, therefore, to implement the sexual offence provisions of the code, subject to a few minor variations that reflect issues raised by the commission.
In tabling this response I should like to draw the Assembly's attention to some aspects of the government's response. The basic sexual offence, which is presently described as "sexual intercourse without consent"will become unlawful sexual penetration, consistent with the case terminology. The government has rejected the commission's recommendation to revert to the term "rape"to describe this offence. The debate about the appropriate terminology to describe sexual offences has endured for many years and the government is aware of the competing arguments. However, in deciding against reverting to the term "rape", the government was cognisant of the fact that most other jurisdictions no longer use this term because it is one with the potential to encourage restricted notions of the acts that constitute sexual intercourse.
There is also very little available data upon which it is possible to assess the relative merits of the different terms used to describe sexual offences. The offences relating to child pornography are to be updated and drafted to accord with the structure and language of the code. The new provisions will address the use of modern technology such as the Internet, SMS and email to obtain and/or produce or supply child pornography. In accordance with the code provisions specific offences will be enacted to protect mentally impaired persons from sexual exploitation by any person responsible for the care of such persons. The government agrees that such measures are important to signal to those responsible for caring for the mentally impaired that sexual exploitation of those in their charge is a particularly serious criminal matter.
The new provisions will also provide additional protection to young people between the ages of 16 and 18 years from sexually predatory behaviour by persons in positions of authority such as parents, teachers, doctors and religious instructors. The government will be retaining an offence of persistent sexual abuse of a child, notwithstanding the commission's recommendation for its repeal. The government is persuaded that there is a need to recognise the special difficulties that can arise in relation to child victims of sexual offences, provided the relevant provisions are able to strike the appropriate balance with the need for the accused to be treated fairly. The government is satisfied that the proposed code offence meets that requirement.
The structure of incest offences will be changed so that instances of child incest are dealt with under the general unlawful sexual penetration offence provisions relating to children. The ACT will retain an offence for adult consensual incest and will maintain a maximum penalty of 10 years in jail. This penalty is higher than the code proposes for a seven-year penalty, but the government feels that it is important to maintain