Page 2316 - Week 07 - Wednesday, 2 August 2017
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burden of proof to be changed in criminal matters, thereby jeopardising a person’s right to be innocent until proven guilty. We worked with a number of stakeholders to refine the definition of “consent” to align with our human rights standards, while also sending a clear message that everybody—everybody—must take all reasonable steps to find out if they have consent in any private matters.
A number of our stakeholders also echoed our sentiment that the very act of sharing an intimate image without consent is harmful in and of itself, and that the act can cause extreme distress to victims and their families, can cause damage to people’s lives and livelihoods, and disrupt the emotional and mental wellbeing of victims. We know too well here in the ACT that the end result of these harmful acts can also be the loss of life.
These same submissions also emphasise—and we agree—that consent for an image to be taken does not equate with consent for it to be shared, nor that your relationship status is at all relevant to whether consent is valid, except insofar as termination of a relationship should be construed as the automatic revocation of consent to view or distribute intimate images gained under that relationship. Based on this feedback we have amended our legislation to reflect the community’s views.
Importantly, when it comes to young people, we have created an exception to existing child pornography offences. Specifically, a person will not have committed an offence under these provisions if there is no more than two years difference in age between the person and the child, and the child consented to the act constituting the offence.
The two-year age gap is a positive step towards law being responsive to the evolving standards of our society. It also signals the acceptance that image sharing between two consenting young people can be a normal, contemporary form of sexual expression in romantic and other relationships and removes the risk of them being charged with child pornography, as is currently the case. I note that similar exceptions exist in the shadow attorney-general’s bill and I am very pleased that we are on the same page on this issue.
We have also amended, to the age of 18, the provision that stipulates that the consent of the Director of Public Prosecutions must be sought if the person charged with the offence was under the age of 16 at the time the offence is alleged to have been committed. We have done this because it affords maximum protection for all young people and ensures consistency with the protections afforded under the ACT Human Rights Act 2004 to children and young people, in conjunction with the right to non-discrimination. I understand that the shadow attorney-general has made similar amendments, based on their explanatory statement.
Other minor changes can be seen in the revised bill and the accompanying explanatory statement. The explanatory statement also goes through a quite detailed description of the consultation process that we went through and gives a brief summary of the submissions that we received.
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