Proposed changes

The proposed changes featured in the draft Statutes Amendment (Child Sexual Abuse) Bill 2020 fall into three categories:

1. Child sexual abuse offences
2. Legal proceedings
3. Sentencing.

Changes to offences

Failure to report

A new offence is being created for employees of institutions that operate facilities or provide services to children in their care, supervision or control.

Under this offence, employees could face up to three years in jail if they refuse or fail to report child sexual abuse to the Police that they know, suspect or should have suspected where:

• The child is still under the age of 18; or
• The abuser is still an employee of an institution; or
• The abuse occurred within the last ten years; or
• The abuser is engaging or is likely to engage in, sexual abuse of a child.

Failure to protect

Under this offence, employees of an institution who know there is a substantial risk of sexual abuse of a child:

• up to 16 years of age by another employee, or
• who is 17 years by another employee who is in a position of authority to the child,

could face penalties of up to 15 years imprisonment if they have the power or responsibility to reduce or remove that risk and negligently fail to do so.

Position of authority offences

There are a number of specific sex-related offences where the offender is in a position of authority in relation to their victim (such as teachers).

The proposed changes would provide an additional defence in this category, where the alleged offender is a young adult who is a similar age to the defendant (for example, an 18 year old assistant coach who engages in consensual sexual activity with a 17 year old team member).

A similar age, or reasonable belief, defence would apply in the following scenarios:

• Unlawful sexual intercourse with a child of or above the age of 17
• Indecent assault where the child was of or above the age of 17 and consented to the indecent assault
• Procuring a child to commit an indecent act where the child was of or above the age of 17.

Presumption of males under 14 years old

Under the Criminal Law Consolidation Act the presumption that boys aged under 14 are incapable of sexual intercourse was abolished in 1976. This change makes this presumption retrospective so that perpetrators of historical offences can still be charged and convicted.

Changes to proceedings

Evidence from victims of child sex abuse

Given the trauma and distress a victim can experience when giving evidence in legal proceedings, the Government is seeking to expand the provisions allowing for pre-recorded evidence with victims, rather than having the witness give evidence at trial.

This includes making it mandatory for Police to record interviews with child sex abuse victims, regardless of age, so those interviews can be admitted at trial.

Alternative methods of giving evidence are also being proposed including pre-trial special hearings. They would enable victims of child sexual offences, and witnesses who are children or vulnerable, to give their evidence at a special hearing without the defendant present.

The provision would also be available to victims of domestic violence.

Changes would also be made to require courts to record evidence of all victims of child sexual abuse. This will then enable courts to rely on that evidence if there is a subsequent trial or retrial.

Also, pre-recorded evidence of a victim of child sex abuse given in another court, or during an investigative interview, could be admissible in committal proceedings in the Youth Court. Child sex offence victims could not be required to give oral evidence in a preliminary examination in Youth Court committal proceedings.

Changes would also be made to allow the court to make orders about the questioning of witnesses including the types of questions that may be asked and the manner and duration of questioning. These provisions would only apply to the questioning of vulnerable witnesses at trial or questioning of witnesses during special pre-trial hearings.

Consideration of evidence in trials

Under the proposed changes, Markuleski directions would be abolished.

Markuleski directions are where a judge tells a jury that any doubt on the honesty and reliability of the evidence given by the complainant in relation to one count can be taken into account when considering their credibility on other counts.

In addition, courts would be able to hear expert evidence in relation to the development and behaviour of children both generally and when they have been sexually abused. This can help both a judge and jury better understand evidence given by children.

The proposed changes would also change the test for admissibility of what’s known as propensity evidence – evidence which shows the defendant has an inclination to engage in conduct described by complainants.

Under the reforms, this evidence would be allowed where its value outweighs the prejudicial effect it may have on the accused.

Information gained in the course of a religious confession must also be disclosed in civil or criminal proceedings under the proposed reforms.

Interlocutory appeals

Interlocutory proceedings deal with matters that need to be resolved before a case goes to trial (such as admissibility of certain evidence).

This change would allow the Director of Public Prosecutions to appeal against interlocutory judgments, where the Full Court is satisfied the judgement destroys or substantially weakens the prosecution’s case and is likely to lead to the abandonment of the prosecution.

Sentencing changes

Under these proposed reforms, when sentencing for multiple victims or for separate episodes of offending, a judge will have to indicate the sentence that would have been imposed for each offence, had separate sentences been handed down.

In addition, the reforms clarify that sentencing for child sexual abuse offences must be in line with sentencing standards at the time of sentencing, not the time of offending.