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Historical review of sexual offence and child sexual abuse legislation PDF

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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 Boxes 5 Nineteenth century 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 Definitions likelihood of the sexual offence occurring (eg 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, or that violate the social taboos of family roles – voyeurism (eg ‘upskirt’ and peeping offences); (Kempe & Kempe 1978:60). – sexual servitude; and This definition was chosen for a number of reasons. – indecent exposure and obscene/offensive First, it acknowledges the child’s limited ability to behaviour in public. 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 Convention on the Rights of the Child 1989. In this The period 1950–2013 was selected for logistical report, ‘child’ is defined as a human being who is and conceptual reasons. First, at the time of below the age of 18 years, unless noted otherwise. conducting the review the research team encountered some issues accessing primary Finally, the term ‘homosexual sexual intercourse’, resources (ie legislation) for a number of jurisdictions unless otherwise specified, is used in this report to (eg Tasmania and the Northern Territory) that were refer to anal sexual intercourse involving males. enacted before 1950. Second, the relatively limited 2 Historical review of sexual offence and child sexual abuse legislation in Australia: 1788–2013 History of child sexual abuse in Australia: 1788–2013 Whether the law is designed to reflect societal and brutal disciplinary methods and structures. attitudes and mores or to facilitate and encourage Parents and educators were encouraged to use social change, a jurisdiction’s legislature is the regular corporal punishment to ‘beat the evil’ out of product of its socio-political context. Consequently, children and evidence suggests that this practice to understand the history of child abuse and sexual started at a very young age (Tower 1989; deMause offence legislation in Australia it is necessary to 1974; Flegel 2009; Lamont & Bromfield 2010; analyse the socio-political context within which it Radbill 1980). was developed. Parenting practices of the time, referred to as This section gives a brief overview of some of the ‘intrusive’ by historians such as deMause (1974), factors that appeared to influence the focused on controlling the child and their perceived implementation, revision and amendment of ‘immoral’ urges. For example, the practice of Australian sexual offence legislation during swaddling was used to control children who, 1788–2013. Key themes include social/cultural untethered, were presumed to attempt to tear their understandings of childhood and child sexuality, the eyes out. In particular, it was believed that left to their role of government in child protection systems, and own devices, children would touch their genitals and societal awareness of child sexual abuse. engage in other ‘deviant’ sexual practices. At this point in history (as was the case until the twentieth century) children had very few rights. They Eighteenth century were seen as the chattels of their fathers, a view that was enshrined in English canon law (Boss 1980). For In the eighteenth century, little demarcation existed example, under English law, rape was the theft of a between children and adults. ‘Childhood’ did not girl’s virginity that could be rectified through exist—children were seen as extensions of their providing compensation to the father (Ames & parents and as ‘little adults’ (deMause 1974). Houston 1990; Petrie 2000). This perception of Consequently, children were believed to be born into children as chattels may offer some explanation for original sin and as such were perceived as innately why, during the early stages of Australia’s settlement, immoral, sinful and deviant. This perception, facilitated the government of the time did not provide services and encouraged by Victorian evangelicalism, meant to protect those children who had arrived or had that children were subject to strict and often harsh History of child sexual abuse in Australia: 1788–2013 3 been born in the colony from harm. It has been boys and the forcible rape of girls under the age of suggested that protecting children from harm ten years old. It was the enactment of these latter inflicted by parents and caregivers was not offences in the sixteenth century in England that perceived as a role for government who were began the process of protecting children from sexual reluctant to interfere in how children were raised, as abuse under law. they were the property of their parents (Lamont & By the end of the 1700s, societal perceptions of Bromfield 2010). children had shifted drastically to a point where Considering the use of corporal punishment was childhood was now being seen as a separate state widespread, socially accepted and that children from adulthood and was characterised by were, legally, the chattels of their parents, it is innocence, purity and naïveté (Ames & Houston unsurprising that throughout the 1700s awareness 1990; Ennew 1986; Flegel 2009; Kincaid 1992). This and understanding of child abuse, maltreatment and was particularly the case among the middle and neglect was limited. That said, even during the initial upper class. At the same time, Victorian period of British colonisation, concern grew within conservatism and moral puritanism denied children’s the colony for orphaned and neglected children. sexuality as a phenomenon (Tower 1989; Egan & Children who were orphaned or whose parents were Hawkes 2008). It emphasised the importance of perceived as being ‘inadequate’ were boarded out protecting children from harm (including sexual with approved families, or later, lived in orphanages, harm) from others and from themselves (Ennew the first of which was established on Norfolk Island 1986; Petrie 2000). Some educators had started to in 1795 (Liddell 1993; Tomison 2001). encourage parents to supervise their children at all times and to ensure they were never naked in front Awareness and understanding of child sexual abuse of other adults. This, it was suggested, ‘constituted was particularly limited in the eighteenth century. one of the first indications that society at large Correspondingly, only a handful of child sexual recognised the potential for children to be sexually offences under English law were adopted in Australia abused’ (Conte & Shore 1982, cited in Tomison during early settlement (see Kercher 1995 for an 2001:48). overview of the history of Australian law and legal principles). These included the forced sodomy of Box 1 Cultural perceptions of childhood and child sexuality in western society • Prior to the twelfth century no notion of ‘childhood’ existed. Children were ‘small adults’ • Fourteenth–seventeenth century—children viewed with ‘indifference’. High child death rates meant that parents emotionally distanced themselves from their children. Children seen as another source of income for the family, particularly within poor families • Eighteenth century—children perceived as innately immoral, requiring strict discipline and religious instruction. Children seen as needing to be controlled through a range of means, including corporal punishment • Nineteenth century—contemporary notions of purity and naiveté closely aligned. Children were brought into the centre of family life and viewed as innocents, untainted and precious. Children needed to be protected from adults and themselves, particularly in relation to ‘self-harm’, ie masturbation Source: Adapted from deMause 1974; Flegel 2009; Goldman & Ronken 2000 Box 2 Mary Ellen In 1873, a Methodist social worker discovered nine year old Mary Ellen badly beaten in her home. The social worker approached the police to assist the child but they were unable to intervene. Despite a scarcity of broader understanding around how to deal with matters of this kind, after some time the social worker approached the American Society for the Prevention of Cruelty to Animals (ASPCA) which agreed to intervene on behalf of the child. The case, which was prosecuted by the ASPCA’s lawyers, was successful, resulting in the removal of Mary Ellen from her home and her guardian mother being charged with assault. Source: Boss 1980; Flegel 2009; Tomison 2001 4 Historical review of sexual offence and child sexual abuse legislation in Australia: 1788–2013 Nineteenth century increased over the conditions that institutionalised children were exposed to, and the deprivation they By the mid-1800s, awareness of child sexual abuse suffered as a result of having no family life was increasing in Australia and overseas. A series of (Mendelsohn 1979; Liddell 1993). government inquiries had found that child prostitution, The end of the nineteenth century was characterised incest and sexual abuse were common in some by social upheaval and campaigning by Australian settlements, particularly Sydney. The organisations and activists concerned with a range reports from these inquiries described high levels of of social welfare issues, including child welfare and ‘sexual immorality’, which were largely attributed to elements of child abuse, as it is now defined. During entrenched poverty and overcrowded living quarters. this time voluntary child protection bodies emerged In particular, it was noted that many families still in the United States, the United Kingdom and allowed children to sleep in the same bed as adults, Australia (Lamont & Bromfield 2010). The creating situations where sexual abuse was more establishment of these new organisations was in likely to occur. It was also suggested that these part influenced by the highly publicised case of an sleeping arrangements made it more likely that abused nine year old girl in New York (see Box 2). children would witness their parents having sex, The ‘child rescue’ movement of the latter part of the which in turn created ‘promiscuous’ and ‘seductive’ 1800s also led to the development of interventionist children (Finch 1991). policies designed to facilitate the state’s regulation of At the same time, social welfare organisations Indigenous persons and their childrearing practices operating in Australia and overseas were raising (Liddell 1993). awareness of child prostitution. Despite evidence of However, while many of these fledgling social a booming male prostitution industry in areas such welfare and child protection agencies identified as London and Sydney, the awareness-raising ‘imperilled morality’ as a form of child abuse, they efforts of these social welfare agencies were focused rarely chose to engage in matters involving sexual on female children (Flegel 2009). However, not all abuse unless there were compounding issues child prostitutes were seen as victims and worthy of associated with physical abuse or neglect (Olafson, protection. Some children were described by Corwin & Summit 1993). Scott and Swain (2002) commentators as ‘wanton’ and ‘lustful’, sexual suggest that the reluctance of these groups to aggressors and complicit in the sexual activities. intervene in cases of child sexual abuse may have Rather than victims, these children were viewed as a been because it was more difficult to detect and corrupting influence, a threat to society and other prove (unless brought to the attention of neighbours children (Flegel 2009). or as a result of an unexplained pregnancy). Despite the findings of government inquiries and the There was also a sense in which nineteenth- efforts of social welfare groups, the government century child-savers had difficulty in seeing the continued to be ambivalent about assuming full victim of sexual abuse as a child. The idealised responsibility for providing child welfare and version of childhood that they were seeking to ‘protection’ services. For example in NSW, voluntary construct was an innocent one which had no committees continued to be responsible for running space for a sexualised child. The place of such orphanages and reformatories, funded by victims was in a reformatory…there was certainly government subsidies (Liddell 1993). As a no place for them within the redemptive circle of consequence of the gold rushes and subsequent the substitute family where their mere presence population increases in the mid1800s, jurisdictions would serve to contaminate (Scott & Swain such as NSW and Victoria experienced a significant 2002:17). increase in the number of abandoned and neglected children (Gandevia 1978: Liddell 1993). This led to Awareness of child sexual abuse was also increasing several jurisdictions introducing child protection within the psychoanalytical community, primarily legislation, which included provisions for children to because of the work of Sigmund Freud. At the end be sent to ‘reformatory and training’ schools (Liddell of the 1800s, Freud, noticing that most of his female 1993; Markiewicz 1996a). However, concern patients had histories of sexual contact with male History of child sexual abuse in Australia:1788–2013 5 adults as children, posited that one of the underlying twentieth century, under significant pressure from his causes of hysteria was inappropriate sexual relations peers, Freud released a series of new papers with adults during childhood (so-called Seduction contradicting his previous work on Seduction Theory). Theory. In his revised work, Freud posited that his female clients who had recalled experiences of The second half of the nineteenth century was also child sexual abuse had either fantasised the events notable due to the efforts of early feminist and moral because of unresolved sexual feelings towards their purity groups who campaigned in Australia, the parents (Oedipal Complex), or had been the sexual United States and England to have the age of aggressors in the first place (NSW Government consent raised from 13 to 16 years (Phillips 2002; 1985). Freud continued to deny the occurrence of Scutt 1991). New South Wales, Western Australia child sexual abuse throughout the 1900s, and even and Queensland subsequently raised the age of took concerted efforts to repress the research of consent to 14 years in 1883 (Criminal Law his peers, which appeared to contradict his now Amendment Act 1883), 1892 (Criminal Law revised theory. In the early 1930s, another Amendment Act 1892) and 1899 (Criminal Code Act psychoanalyst, Sándor Ferenczi, released a paper 1899) respectively. Meanwhile, South Australia and in which he argued that child sexual abuse was a Victoria raised the age of consent to 16 years in major source of trauma. Upon releasing the paper, 1885 (Criminal Law Act 1885) and 1891 (Crimes Act Freneczi’s colleagues including Freud, strongly 1891) respectively. At the same time, many urged him to retract his findings, which he refused Australian jurisdictions started introducing new to do (Olafson, Corwin & Summit 1993). When he legislation that expanded substantially the pre- died in 1933, the psychoanalyst community existing sexual offence laws. For example, for the suppressed Ferenczi’s work. first time a number of jurisdictions made it an offence to procure a child for sexual purposes and Further, Tomison notes that the first half of the 1900s for male teachers to have sexual relationships with was ‘not notable for changes to child welfare their female students. practice, but it did see the state taking greater responsibility for looking after children’s welfare [through the increased provision of institutional care] and the increased use of legislation to enforce Twentieth century appropriate standards of care’ (2001:50). For example, in response to concerns raised in relation The 1900s saw significant change in several areas to the standard of care received by children living in relating to sexual offence legislation in Australia. The institutions, a number of jurisdictions introduced following section examines: legislation to monitor standards (Markiewicz 1996; • 1900–1930s; Tomison 2001). • 1940s–1960s; and This period was also notable because some • 1970s–2013. Australian jurisdictions increased the age of consent to sexual intercourse from 14 to 16 years (eg 1900–1930s Western Australia via the Criminal Law Amendment Act 1892 Amendment which was assented to in By the end of the 1800s, societal awareness and 1900, and NSW via the Crimes (Girl’s Protection) Act concern regarding child sexual abuse was increasing 1910), and introduced legislation which made it an in Australia and overseas. This led to a suite of new offence to produce, distribute and the like, indecent offences being included in Australian sexual offence materials. These new laws may have been used to legislation across jurisdictions, and the age of prosecute individuals producing child pornography. consent increasing from 13 to 14 or 16 years (depending on the jurisdiction). However, the early Finally, on a much larger scale, in the 1920s the 1900s did not continue this trend. At the start of the League of Nations introduced The Declaration of the Rights of the Child 1924 (the Declaration) which 6 Historical review of sexual offence and child sexual abuse legislation in Australia: 1788–2013

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the use of gendered language;. – the definition of sexual penetration/intercourse/ carnal knowledge; genitals and/or breasts, masturbation, oral sex, vaginal or anal penetration etc), and non- .. providing children with adequate nutrition, education, housing etc;. • prohibiting childhood emplo
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