Historical review of sexual offence and child sexual abuse legislation in Australia: 1788-2013

Hayley Boxall, Adam M Tomison, Shann Hulme

Prepared by the Australian Institute of Criminology

2014

ISBN 978 1 922009 78 4

Executive Summary

At the end of 2013, the Royal Commission into Institutional Responses to Child Sexual Abuse (the Commission) contracted the Australian Institute of Criminology (AIC) to undertake a historical review of sexual offence legislation in Australia, particularly as it related to children, from British colonisation in 1788 to the present. The project involved a comprehensive review of literature and legislation (current and past) that was available online and in hardcopy.
The review’s two purposes were to:

  1. develop an understanding of the socio-political context within which child sexual abuse legislation has developed in Australia and internationally; and

  2. provide an overview of the offences with which a person who sexually abused a child may have been charged during 1950–2013.

Scope and structure of this report

The report has two main sections. The first is an overview of the socio-political factors and events linked to the development of Australia’s awareness and understanding of child sexual abuse, statutory child protection systems and child sexual abuse legislation from 1788 (when Australia was first colonised) until the end of 2013.
The second section is an overview of the different offences with which a person who sexually abused a child during 1950–2013 may have been charged within the nine Australian jurisdictions. This review does not include legislative changes that occurred after 31 December 2013.

Section two sets out for each jurisdiction:

  • an overview of the sexual offence legislation at ‘point-in-time’—1950;

  • a timeline detailing key legislative changes during 1950–2013 (eg definitional changes, inclusion of new offences and repeal of pre-existing offences etc); and

  • a brief discussion of the sexual offence legislation focussing on the following key themes:

    • the use of gendered language;

    • the definition of sexual penetration/intercourse/ carnal knowledge;

    • the decriminalisation of homosexual sexual acts;

    • offences where the accused is in a position of authority or trust;

    • child abuse materials/child pornography/child exploitation materials; and

    • mandatory reporting laws.

A range of offences were included in the legislative review including:

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

  • 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;

  • child pornography offences; and

  • non-contact sexual offences, including:

    • facilitation offences—offences that increase the likelihood of the sexual offence occurring (eg procuring children for sexual purposes and ‘grooming’ children);

    • compelling persons to engage in sexual self-manipulation;

    • compelling persons to engage in sexual activities with a third person (not the offender);

    • loitering near places frequented by children by convicted sex offenders;

    • voyeurism (eg ‘upskirt’ and peeping offences);

    • sexual servitude; and

    • indecent exposure and obscene/offensive behaviour in public.

The offences included in the review were identified in consultation with the Commission. They included offences relating to producing, disseminating and/or possessing child exploitation materials/child pornography. However, offences relating to the distribution, production and similar of ‘Refused Classification’ (RC) materials were excluded as being beyond the scope of the project. Offences relating to acts and individuals located outside Australia were also excluded. Finally, while reference is made to incest offences throughout this document, this report focuses predominantly on non-familial offences.

The period 1950–2013 was selected for logistical and conceptual reasons. First, at the time of conducting the review the research team encountered some issues accessing primary resources (ie legislation) for a number of jurisdictions (eg Tasmania and the Northern Territory) that were enacted before 1950. Second, the relatively limited legislative changes to sex offences prior to 1950.

Third, the timeframes and resources allocated to this project were similarly restrictive, making a review of legislation prior to 1950 unfeasible. Finally, it was decided, in consultation with the Commission, that the period of most interest and relevance to the Commissioners was 1950–2013.

Definitions

Child sexual abuse is a nebulous phenomenon that has been defined in different ways at different points in western history. However, for the purpose of this report, child sexual abuse is defined as the:

…involvement of dependent, developmentally immature children and adolescents in sexual activities that they do not fully comprehend, to which they are unable to give informed consent, or that violate the social taboos of family roles (Kempe & Kempe 1978:60).

This definition was chosen for a number of reasons. First, it acknowledges the child’s limited ability to give informed consent. Second, the definition encompasses both contact offences (eg fondling of genitals and/or breasts, masturbation, oral sex, vaginal or anal penetration etc), and non-contact offences (eg exposing the child to pornography, grooming and sexual self-manipulation). Finally, the definition was selected because it encompasses sexual acts involving two children or adolescents who may be below the legal age of consent.

The definition of ‘child’ used in this review was taken from the Commission’s Terms of Reference, which was in turn taken from the United Nations Convention on the Rights of the Child 1989. In this report, ‘child’ is defined as a human being who is below the age of 18 years, unless noted otherwise.
Finally, the term ‘homosexual sexual intercourse’, unless otherwise specified, is used in this report to refer to anal sexual intercourse involving males.