Page 1323 - Week 05 - Tuesday, 9 April 2013
Firstly, currently under the Crimes Act 1900 the definition of “sexual intercourse” includes the penetration to any extent of the vagina or anus of a person. The bill, intending to expand the definition of “sexual intercourse”, provides that sexual intercourse instead includes penetration to any extent of the genitalia of a female person or the anus of any person. This new definition may have the unintended effect that any victim who does not identify or is not identified by others as a female person would be excluded from relying on this definition to prove a sexual offence.
Secondly, the bill further provides that “female person” includes a transsexual person with a surgically constructed vagina. This proposed amendment to the Crimes Act 1900 would have the unintended effect of excluding a person who has had surgically constructed or altered external genitalia but not a surgically constructed vagina. In addition, the reference to “transsexual person” in the definition of the bill amended may act to exclude a person who is not transgender but who, for any number of reasons, may have a surgically constructed or altered vagina or genitalia from relying on the definition. Therefore the government is proposing a number of amendments.
Amendment 1 amends the bill so that the words “or anus of a person” are not omitted from section 50(1)(a) and (b) of the Crimes Act and only the words “a vagina” are omitted from this section. The amendment amends the bill so that the words “the genitalia” are substituted for “the vagina” in section 50(1)(a) and (b) of the act. The purpose of the amendment is that section 50(1)(a) and (b) will refer to the genitalia or anus of a person, rather than the genitalia of a female person or the anus of any person, so that the section is applicable to victims who do not identify as a female person.
Amendment 2 amends the bill so that the new definition of “female person” inserted at section 50(2) of the Crimes Act 1900 is no longer inserted. Instead, a new definition of “genitalia” is inserted. “Genitalia” includes surgically constructed or altered genitalia. The purpose of amendment 2 is to ensure that the definition applies to victims who have surgically constructed or altered external genitalia but not a surgically constructed vagina and victims who are not transgender but who, for any number of reasons, may have a surgically constructed or altered vagina or genitalia.
These are important amendments that have been drawn to the government’s attention by a range of stakeholder groups. I thank them for their advice and commend these amendments to the Assembly.
MR RATTENBURY (10.51): The Greens agree with the amendments. They amend the definition of “sexual intercourse” to ensure that the bill does not exclude victims of sexual assault who identify as female. This was a question that I raised with the government last year and I understand that A Gender Agenda wrote to the minister about the issue as well. I am pleased that the government has taken those requests on board. It will mean that the definition of “sexual intercourse” can be relied on by a person who has surgically constructed genitalia but not a surgically constructed vagina, or a person who is neither transgender nor intersex but who has a surgically constructed vagina or genitalia.