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 for the Royal Commission into Institutional Responses to Child Sexual Abuse AIC Reports Special report © Australian Institute of Criminology 2014 ISBN 978 1 922009 77 7 (Print) 978 1 922009 78 4 (Online) Apart from any fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act 1968 (Cth), no part of this publication may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publisher. Published by the Australian Institute of Criminology GPO Box 2944 Canberra ACT 2601 Tel: (02) 6260 9200 Fax: (02) 6260 9299 Email: [email protected] Website: aic.gov.au Please note: minor revisions are occasionally made to publications after release. The online versions available on the AIC website will always include any revisions. Disclaimer: This research report does not necessarily reflect the policy position of the Australian Government. Edited and typeset by the Australian Institute of Criminology A full list of publications in the AIC Reports series can be found on the Australian Institute of Criminology website at aic.gov.au Contents 1 Introduction 92 Commonwealth 1 Scope and structure of this report 94 Sexual offence legislation 2000–13 2 Definitions 95 Conclusion 3 History of child sexual abuse in Australia: 102 References 1788–2013 3 Eighteenth century 5 Nineteenth century Boxes 6 Twentieth century 4 Box 1 Cultural perceptions of childhood and 14 Australian Capital child sexuality in western society Territory 4 Box 2 Mary Ellen 16 Sexual offence legislation 1950–2013 22 New South Wales 24 Sexual offence legislation 1950–2013 Tables 33 Northern Territory 7 Table 1 History of international child rights—the 35 Sexual offence legislation 1950–2013 role of the League of Nations and United 41 Queensland Nations 44 Sexual offence legislation 1950–2013 11 Table 2 Key Australian inquiries into child 52 South Australia sexual abuse 1985–2014 54 Sexual offence legislation 1950–2013 14 Table 3 Sexual offence legislation operating in the ACT at the start of 1950 61 Tasmania 17 Table 4 Timeline of key amendments to ACT’s 64 Sexual offence legislation 1950–2013 sexual offence legislation (1950–2013) 72 Victoria 23 Table 5 Sexual offence legislation operating in 76 Sexual offence legislation 1950–2013 NSW at the start of 1950 84 Western Australia 25 Table 6 Timeline of key amendments to NSW’s 87 Sexual offence legislation 1950–2013 sexual offence legislation (1950–2013) Disclaimer The findings and opinions contained in this report are those of the authors and not the Royal Commission. Any errors are the author’s responsibility. The law as stated in this report is current to 31 December 2013. Contents C 34 Table 7 Sexual offence legislation operating in the Northern Territory at the start of 1950 36 Table 8 Timeline of key amendments to the Northern Territory’s sexual offence legislation (1950–2013) 42 Table 9 Sexual offence legislation operating in Queensland at the start of 1950 44 Table 10 Timeline of key amendments to Queensland’s sexual offence legislation (1950–2013) 53 Table 11 Sexual offence legislation operating in South Australia at the start of 1950 55 Table 12 Timeline of key amendments to South Australia’s sexual offence legislation (1950– 2013) 62 Table 13 Sexual offence legislation operating in Tasmania at the start of 1950 65 Table 14 Timeline of key amendments to Tasmania’s sexual offence legislation (1950– 2013) 72 Table 15 Sexual offence legislation operating in Victoria at 1950 76 Table 16 Timeline of key amendments to Victoria’s sexual offence legislation (1950– 2013) 85 Table 17 Sexual offence legislation operating in Western Australia at the start of 1950 87 Table 18 Timeline of key amendments to Western Australia’s sexual offence legislation (1950–2013) 92 Table 19 Timeline of key amendments to the Commonwealth’s sexual offence legislation (2000–13) 97 Table 20 Summary of key changes to Australian sexual offence legislation, by jurisdiction D Historical review of sexual offence and child sexual abuse legislation in Australia: 1788–2013 Introduction At the end of 2013, the Royal Commission into The second section is an overview of the different Institutional Responses to Child Sexual Abuse (the offences with which a person who sexually abused a Commission) contracted the Australian Institute of child during 1950–2013 may have been charged Criminology (AIC) to undertake a historical review of within the nine Australian jurisdictions. This review sexual offence legislation in Australia, particularly as it does not include legislative changes that occurred related to children, from British colonisation in 1788 to after 31 December 2013. the present. The project involved a comprehensive Section two sets out for each jurisdiction: review of literature and legislation (current and past) that was available online and in hardcopy. • an overview of the sexual offence legislation at ‘point-in-time’—1950; The review’s two purposes were to: • a timeline detailing key legislative changes during 1. develop an understanding of the socio-political 1950–2013 (eg definitional changes, inclusion of context within which child sexual abuse legislation new offences and repeal of pre-existing offences has developed in Australia and internationally; and etc); and 2. provide an overview of the offences with which a • a brief discussion of the sexual offence legislation person who sexually abused a child may have focussing on the following key themes: been charged during 1950–2013. – the use of gendered language; – the definition of sexual penetration/intercourse/ carnal knowledge; Scope and structure of this – the decriminalisation of homosexual sexual report acts; – offences where the accused is in a position of The report has two main sections. The first is an authority or trust; overview of the socio-political factors and events linked to the development of Australia’s awareness – child abuse materials/child pornography/child and understanding of child sexual abuse, statutory exploitation materials; and child protection systems and child sexual abuse – mandatory reporting laws. legislation from 1788 (when Australia was first A range of offences were included in the legislative colonised) until the end of 2013. review including: Introduction 1 • contact sexual offences where the child is below legislative changes to sex offences prior to 1950. the legal age of consent; Third, the timeframes and resources allocated to this • contact sexual offences where the child is above project were similarly restrictive, making a review of the legal age of consent; legislation prior to 1950 unfeasible. Finally, it was decided, in consultation with the Commission, that • contact sexual offences where the age of the the period of most interest and relevance to the victim is not specified; Commissioners was 1950–2013. • child pornography offences; and • non-contact sexual offences, including: – facilitation offences—offences that increase the likelihood of the sexual offence occurring (eg Definitions procuring children for sexual purposes and Child sexual abuse is a nebulous phenomenon that ‘grooming’ children); has been defined in different ways at different points – compelling persons to engage in sexual in western history. However, for the purpose of this self-manipulation; report, child sexual abuse is defined as the: – compelling persons to engage in sexual …involvement of dependent, developmentally activities with a third person (not the offender); immature children and adolescents in sexual – loitering near places frequented by children by activities that they do not fully comprehend, to convicted sex offenders; which they are unable to give informed consent, – voyeurism (eg ‘upskirt’ and peeping offences); or that violate the social taboos of family roles (Kempe & Kempe 1978:60). – sexual servitude; and – indecent exposure and obscene/offensive This definition was chosen for a number of reasons. behaviour in public. First, it acknowledges the child’s limited ability to give informed consent. Second, the definition The offences included in the review were identified in encompasses both contact offences (eg fondling of consultation with the Commission. They included genitals and/or breasts, masturbation, oral sex, offences relating to producing, disseminating and/or vaginal or anal penetration etc), and non-contact possessing child exploitation materials/child offences (eg exposing the child to pornography, pornography. However, offences relating to the grooming and sexual self-manipulation). Finally, the distribution, production and similar of ‘Refused definition was selected because it encompasses Classification’ (RC) materials were excluded as being sexual acts involving two children or adolescents beyond the scope of the project. Offences relating to who may be below the legal age of consent. acts and individuals located outside Australia were also excluded. Finally, while reference is made to The definition of ‘child’ used in this review was taken incest offences throughout this document, this report from the Commission’s Terms of Reference, which focuses predominantly on non-familial offences. was in turn taken from the United Nations