Crimes Amendment (Sexual Offences and Other Matters) Act 2014

Wednesday 29 October 2014 @ 2.15 p.m. | Crime

The Victorian Government has assented and proclaimed the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 on the 21 October 2014. The Act will amend the Victorian Crimes Act in relation to various sexual offences and in particular, the recent trend towards the sharing of sexually explicit images through the internet, mobile phones and other social media outlets. 

The Victorian Act

The Act will implement recommendations made by the Victorian Parliament Law Reform Committee in its report on the inquiry into the phenomenon known as ‘sexting.’ Sexting has become a trend as technology has become more widely available especially between teenagers.

The new Act sets as its goal the regulation of this practice to provide protection as well as a safer environment for both children and adults. The committee recognised that the sharing of sexually exploitative material must be regulated, while at the same time ensuring that teenagers do not face unwarranted prosecution for child pornography offences. 

Aim of the Victorian Act

The primary aim of the Act is to modernise certain outdated language in existing offences to make it easier for juries to be able grasp and determine whether an accused should be guilty of these offences. The concept of ‘fault’ will be introduced for the first time within the act of sexual assault. That is to say, the accused will come within the fault element if they did not believe that the complainant was consenting to the sexual activity or, if they did have such a belief, it was not a reasonable one.

The Act contains a list of circumstances in which a person is taken not to have consented to a sexual act. This reflects the current law and includes when a person is asleep or unconscious, and when they submit to an act because of force or fear of force. The bill provides that when an accused has knowledge that one of these circumstances exists, this is enough to show that he or she did not have a reasonable belief in consent.

Exceptions for Child Pornography and Sexting

Most importantly, the Act provides new exceptions to child pornography offences in the case of sexting. The Act recognises the danger of teenagers being inappropriately criminalised by existing child pornography laws. Prior to this act, any explicit depiction of a person under 18 years old is potentially child pornography. By this definition, teenagers who create, possess, or distribute explicit images of themselves or their peers commit a child pornography offence. When non-exploitative, consensual sexting occurs between peers, these serious consequences are unwarranted.

The Act therefore addresses this issue by introducing exceptions to the child pornography offences. The exceptions will apply only to minors and will no longer apply as soon as the person involved reaches 18. Essentially, child pornography offences will not apply to a minor (A) if the child pornography in question is an image of A, and A is the subject of the child pornography depicted. 

The Act will also introduce new offences including the distribution of intimate images and a threat to distribute intimate images. Essentially, this makes it an offence for the receiver for an intimate image to distribute the image without the sender’s prior consent. Where the intimate image is of a minor, consent will not be relevant. Similarly, the threat to distribute such images as a tool of coercion will also be in violation of the law. 

WA Law Student Calls for Rethink on Sexting Laws

University of Western Australia’s School of Law honour student, Ms Rachel Lee, is in favour of the overhaul of sexual offences with regards to sexting. She feels that the current law imposes a double standard on adults and children. She identifies, correctly, that without laws such as those recently introduced in Victoria, adults who engage in sexting will not suffer any major legal consequences unless it is stalking or threatening conduct, while teenagers who engage in the same practice will be guilty of an offence. 

In her thesis, she makes three main recommendations centred on dealing with sexting. She said if sexting required a criminal response, where for example, images had been obtained through coercion, the under-utilised Federal offence of using a carriage service to menace, harass or offend should be used. Much of these recommendations have already been incorporated into the Victorian Act. It remains to be seen whether the remaining States will pass simialr laws.

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