The Commission is currently examining issues including the definition of consent, the defence of mistaken belief in consent, the directions given to juries in sexual offence trials, our substantive sexual offences and their maximum penalties.
The Commission has now completed the Final Report for Project 113 and submitted it to the Attorney General for tabling in Parliament. Further updates will be available on this page.
Overview
The Commission has published the Discussion Paper in two parts.
Volume 1 of the Discussion Paper addresses the law of consent and the mistake of fact defence. It also considers issues relating to objectives and guiding principles, jury directions, special verdicts and the implementation and monitoring of reforms.
The Commission has also published short Issues Papers dealing with some of the individual topics discussed in Volume 1 of the Discussion Paper. They can be found at the bottom of this page and on the Project 113 - Sexual Offences publications page.
Volume 2 of the Discussion Paper focuses on the sexual offences that should be included in the Criminal Code the maximum penalties that should be set for those offences.
Discussion Papers
Sexual Offences – Project 113 Discussion Paper Volume 2: Offences and Maximum Penalties (PDF, 1.5MB)
Background Paper
In order to assist stakeholders and members of the public to make submissions, the Commission engaged three legal academics, Professor Heather Douglas and Associate Professors Stella Tarrant and Hilde Tubex, to draft a Background Paper. The Background Paper discusses social issues relevant for considering sexual offence laws. It examines the issues from three perspectives: the harmfulness of sexual violence; common misconceptions about sexual violence; and complainants' experiences of the criminal justice system. The paper identifies relevant Western Australian data on sexual offending in each section. Additional Western Australian data is set out in an Appendix to the paper.
How do I make a submission?
The closing date for submissions was Sunday, 30 April 2023.
Individuals and organisations were invited to provide submission or complete an online survey on one or more of the options and questions in Volume 1 and Volume 2 of the Discussion Paper and Background Paper. The Commission also held consultations with reference groups, organisations or persons who wished to contribute to law reform in this area.
The Final Report will include a list of people and organisations that have made submissions. Please let the Commission know if you do not want to be included in that list. If you did not ask for your submission to be kept confidential, it will be treated as public. This means that it may be referred to in the Final Report.
Please contact the Commission at lrcwa@justice.wa.gov.au if have any questions in relation to this reference.
Issues Papers
The Commission has prepared a series of short Issues Papers dealing with individual topics discussed in Volume 1 of the Discussion Paper. We hope that these will assist you to understand individual topics and access information in the Discussion Paper.
The Issues Papers are numbered consistently with the chapters in the Discussion Paper to which they relate. Each Issues Paper also has a title which indicates the topic discussed in that Issues Paper. Each Issues Paper tells you where in Volume 1 of the Discussion Paper you can find more information about that topic.
Issues Paper 3 – Statutory objectives and guiding principles (PDF, 159.34KB)
Issues Paper 4.1 – Should consent be defined as an agreement (PDF, 158.12KB)
Issues Paper 4.2 – Should consent have to be communicated (PDF, 174.18KB)
Issues Paper 4.3 – Should the negative indicators of consent be changed (PDF, 133.89KB)
Issues Paper 4.4 – Should consent in the context of commercial sexual agreements be clarified (PDF, 126.65KB)
Issues Paper 4.5 – Should there be a list of circumstances in which there is no consent (PDF,177.8KB)
Issues Paper 4.6 – Circumstances in which a participant lack capacity to consent (PDF, 204.3KB)
Issues Paper 4.7.1 − Should the phrase 'deceit or any fraudulent means' be retained as part of the list of circumstances in which there is no consent (PDF, 208.85KB)
Issues Paper 4.7.2 – How could the list of circumstances in which there is no consent because a participant has inaccurate information be expanded (PDF, 212.56KB)
Issues Paper 4.7.3 – Should the list of circumstances in which there is no consent include stealthing (PDF, 213.67KB)
Issues Paper 4.7.4 – Should the list of circumstances in which there is no consent include inaccurate information about fertility, sex, gender and related issues and sexual health? (PDF, 156.76KB)
Issues Paper 4.8 – Circumstances in which a participant is under pressure to take part in sexual activity. (PDF, 208.48KB)
Issues Paper 4.9 – Timing and withdrawal of consent to sexual activity. (PDF, 140.15KB)
Issues Paper 5.1 – Mistaken belief in consent - the current law and criticisms of the current law. (PDF, 181.79KB)
Issues Paper 5.2 – Mistaken belief in consent – possible reform - exclude operation of the mistake of fact defence in sexual offence cases. (PDF, 194.37KB)
Issues Paper 5.3 – Mistaken belief in consent – possible reform – make the mistake defence more objective. (PDF, 167.09KB)
Issues Paper 5.4 – Mistaken belief in consent – possible reform – legislative guidance on the assessment of 'reasonableness' (PDF, 188.8KB)
Issues Paper 5.5 – Mistaken belief in consent – possible reform – require the accused to have taken measures to ascertain consent (PDF, 201.89KB)
Issues Paper 5.6 – Mistaken belief in consent – possible reform – require or permit the jury to consider any measures the accused took to ascertain consent (PDF, 186.83KB)
Issues Paper 5.7 – Mistaken belief in consent – possible reform – reverse the onus of proving the mistake of fact defence (PDF, 170.8KB)
Issues Paper 6.1 – Should WA legislate jury directions for sexual offences. (PDF, 167.25KB)
Issues Paper 6.2 – When should a judge be required or permitted to give legislated jury directions and what should the legislation require (PDF, 167.86KB)
Issues Paper 6.3 – Possible legislated specific jury directions (PDF, 205.67KB)
Issues Paper 6.4 – Possible legislated jury directions about delay and the Longman direction (PDF, 181.82KB)
Submissions about your experience in the criminal justice system
The Office of the Commissioner for Victims of Crime is leading a review into the experiences of sexual violence victim-survivors in the criminal justice system. The review will consider the end-to-end process from reporting the offence to the release of an offender from custody.
If you would like to contribute to this review, you can find out more information on the Review of criminal justice responses to sexual offending page.
If we form the view that a submission that we receive would be relevant to the Office of the Commissioner for Victims of Crime’s review, we will forward it to the Office of the Commissioner for Victims of Crime. Please advise us if you do not want us to do so.
