Brief review of contemporary sexual offence and child sexual abuse legislation in Australia

Special report

Hayley Boxall

Prepared by the Australian Institute of Criminology

2014

ISBN 978 1 922009 76 0

Executive Summary

At the end of 2013, the Australian Institute of Criminology was contracted by the Royal Commission into Institutional Responses to Child Sexual Abuse (the Commission) to undertake a review of sexual offence legislation in Australia, particularly as it related to children, and enacted as at 31 December 2013. It is important to note that any legislative changes that have been made after this date are not included in this review.

Structure and scope of this report

The following report provides a brief overview of the offences that an individual who sexually abuses a child in an institutional setting may be charged with at the end of 2013. Information provided for each of the identified offences includes:

  • the location of the offence in the respective state or territory’s legislation;

  • the age of the victim (where relevant);

  • aggravating factors—for the purpose of this review, restricted to factors relating to:

    • the age of the child;

    • the relationship between the offender and victim; and

    • whether the victim has an intellectual impairment, physical disability or mental illness;

  • the maximum penalty.

The offences included in this review have been divided into a six sections:

  • contact sexual offences where the child is below the legal age of consent (16, 17 or 18 years old depending on the jurisdiction and nature of the sexual act);

  • contact sexual offences where the child is above the legal age of consent;

  • contact sexual offences where the age of the victim is not specified;

  • non-contact sexual offences;

  • child pornography offences (production); and

  • offences for which institutions and/or their representatives that were aware of child sexual abuse may be charged.

Only offences relating to individuals located within Australia are included in this review. Further, while there are other defences that may be used to refute charges brought under sexual offence or child sexual abuse legislation (for example, honest and reasonable belief that a person was over a certain age and similarity in age between the victim and offender), the only defence that is considered in this report is consent.