Two concurrent and complementary reviews will examine a multitude of issues relating to sexual offending to ensure laws and practices deliver justice outcomes to victim-survivors in Western Australia and adequately reflect community expectations.
The Attorney General has tasked the Law Reform Commission of Western Australia (the Commission) with reviewing the sexual offence laws contained in the Criminal Code and providing advice on possible amendments to enhance and update these provisions.
The Commission, chaired by highly respected and experienced criminal lawyer and former Supreme Court judge, the Hon Lindy Jenkins, will consider whether there is any need for reform, including specifically to the law of consent.
This will involve considering whether the concept of affirmative consent should be reflected in the legislation, how mistakes and knowledge of consent should be dealt with under the law, the factors that might invalidate consent such as coercion, fraud, or deception (for example, through ‘stealthing’), and whether ‘special verdicts’ should be used.
The Government will consider the Commission’s recommendations when it releases its final report, which is due July 1, 2023. The terms of reference are available at https://www.wa.gov.au/government/publications/project-113-sexual-offences
The Department of Justice, through the Office of the Commissioner for Victims of Crime, will undertake a separate project examining the end-to-end criminal justice process for victims of sexual offending, from reporting an offence to the release from custody of the offender.
In carrying out its review, the Department of Justice will consider:
- the experience of adult victim-survivors (regardless of their age when the relevant sexual offending occurred) in the criminal justice system;
- the factors which contribute to the under-reporting of sexual offences and the attrition of those who do report throughout the formal legal process; and
- alternative and innovative mechanisms, processes or procedures for receiving, investigating and resolving (through prosecution or otherwise) sexual offence complaints that are consistent with victim-survivors’ interests and the interests of justice – for example, restorative justice processes.
The Department of Justice will complete its review and provide the Government with its recommendations by May 1, 2024.
More information, including discussion papers and calls for submissions, will be made available on the Commission’s and Department of Justice’s websites in due course.
As stated by Attorney General John Quigley:
“There is growing awareness and deep concern in the community in relation to sexual offending.
“I am acutely aware that we need to continue to modernise our laws and processes to assist victim-survivors to get justice in every way we can.
“The Law Reform Commission is ideally placed to interrogate issues in relation to sexual offence laws, particularly how the criminal law deals with the concept of ‘consent’.
“Our consent laws should protect vulnerable people from sexual assault and act as strong deterrents for offenders who commit these despicable crimes.
“The Department of Justice’s end-to-end review will be crucial in determining and fixing issues in the criminal justice system’s treatment of allegations of sexual offending.
“The McGowan Government is determined to ensure that victim-survivors feel supported in coming forward to police and can have confidence that the justice system is working effectively to keep them safe.
“I look forward to considering the recommendations of both reviews.”
As stated by Women’s Interests Minister Simone McGurk:
“Sexual violence and assault have no place in our community, and yet too many lives are being impacted by these insidious crimes.
“It is essential that victim-survivors feel confident and safe in bringing these matters to the criminal justice system.
“The Law Reform Commission’s review will consider the potential for use of innovative processes like special verdicts, the role of affirmative consent laws and criminalising stealthing to ensure we have effective laws that encourage victims to report what has happened to them.
“I welcome the commencement of these concurrent projects which, together, will ensure our sexual offence laws are appropriate, and that the experience of victims who interact with the criminal justice system is as respectful, compassionate and empowering as possible.
“It is important that any attitudes that blame women for their victimisation do not play a role in justice outcomes.
“This work complements the development of WA’s first strategy to prevent and respond to sexual violence, which will focus on stopping sexual violence before it occurs.”
