Victoria Conducts Wide Review of Sexual Offences Laws

Tuesday 4 March 2014 @ 11.39 a.m. | Crime

The Victorian Government has conducted a widespread review of sexual offences legislation, covering the main offences of rape, sexual assault, and sexual offences against children. The review seeks to address the many issues plaguing existing sexual offence laws which are widely agreed to be overly complicated, inconsistent and lacking in clarity. This can be especially problematic in the context of jury trials. 

Particular problem areas include what state of mind makes a person guilty of rape when they have sex with a person who is not consenting and the directions that trial judges are obliged to give to juries. A consultation paper prepared by the Department of Justice makes a number of proposals and options for improvements to sexual offences legislation and changes to related procedural laws that limit the effectiveness of the current sexual offence laws.

Calls for Change

Given the complexity of the law, a broad range of people, organisations and courts have advocated for widespread changes to Victoria’s sexual offence laws in recent years.

These calls rose markedly following the 2010 Victorian Court of Appeal decision in Worsnop v The Queen (2010) 28 VR 187 which set out the law to be applied in rape cases. In brief, the effect of the Court’s decision in Worsnop was that there was no need to assess the nature and strength of an accused’s belief in consent because any belief in consent would be sufficient to stop the prosecution from proving the accused was guilty. As a result of this verdict, over 15 convictions for rape were set aside on appeal, because the trial judge directed the jury in accordance with what was generally understood to be the law before that decision.

These directions consisted of the generally held view that a person is at fault for having sexual intercourse in circumstances where there was no consent if they:

  • were aware that the person they are having sexual intercourse with was not consenting, or
  • were aware that the other person might not be consenting, or
  • did not give any thought to whether the other person was not consenting or might not be consenting.

Nearly two years after the decision in Worsnop, the High Court in the case of Getachew v The Queen [2011] VSCA 164 considered this issue and held that the decision in Worsnop was wrong. While the law is now more established, it remains complex and intrinsically difficult to explain, understand, and apply. In September 2012, the Victorian Court of Appeal said that the problems with the offence of rape ‘can only be addressed by urgent and wholesale amendment’.

Over the last 10 years there has been an 81% rise in the number of sexual offence trials in Victoria’s County Court, with almost 50% of all trials that go to judgment being sexual offence trials. This reflects an escalation in the proportion of sexual offence cases as well as an increase in the overall number of trials conducted. The need for legislative reform is paramount; better laws will deliver improved access to justice, and reduce delay benefiting not only victims of sexual offences but society overall.  

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