Discussion Paper - Project 113: Sexual Offences

Public notice
The Law Reform Commission has released Volume 1 of a Discussion Paper (Objectives, Consent and Mistake of Fact) which outlines options and poses questions about changing Western Australia’s sexual offence laws in order to guide drafting of submissions.
Project 113 Discussion Paper Volume 1

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.

An online survey is now available that guides you through selected questions from Volume 1 of the Discussion Paper. 

Overview

Due to the volume and complexity of this review the Commission has decided to publish 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 the Discussion Paper. They can be found on the Project 113 - Sexual Offences publications page.

The Discussion Paper is divided into eight Chapters and two Appendices as follows:

Chapter Summary
Chapter 1
Introduction
This chapter explains why the government is reviewing sexual offence laws and outlines the issues that we will and will not be examining in this review. It also examines the principles that will guide us and explains how you can tell us your views.
Chapter 2
How we currently address sexual offending
This chapter outlines the way in which we currently address sexual offending in Western Australia. It explores the trial process and the way in which offences can be proven.
Chapter 3
Should the Code specify objectives or guiding principles?

 
This chapter considers whether the Criminal Code Act Compilation Act 1913 (WA) should contain any objectives or guiding principles.
Chapter 4
How should consent be defined?

 
This chapter examines the issue of consent. It discusses the way in which consent should be defined. It also considers the circumstances in which consent should not be considered free and voluntary.
Chapter 5
When should the accused be excused?
This chapter addresses the mistake of fact defence. It discusses when a belief should be considered to be reasonable, and whether an accused person should be required to take steps to find out if the other person is consenting.
Chapter 6
What should the Judge tell the Jury in a sexual offence trial?
This chapter focuses on jury directions. It considers whether there is a need to legislate for such directions, and the content of possible directions.
Chapter 7
Special verdicts
This chapter explores the issue of special verdicts. It discusses the way in which special verdicts operate and considers whether it would be desirable for Western Australian law to allow for a special verdict to be given in sexual offence cases.
Chapter 8
How should the reforms be implemented and monitored?
This chapter considers the implementation and monitoring of reforms.
Appendix A Appendix A contains a list of the organisations that made preliminary submissions to the review.
Appendix B Appendix B contains a list of all of the questions we have asked throughout the Discussion Paper Volume 1.

Volume 2 will focus on the sexual offences that should be included in the Code and the penalties that should be set for those offences. This will be published in February 2023. There will be a separate deadline for submissions in relation to Volume 2.

Discussion Paper

 
Sexual Offences - Project 113 Discussion Paper Volume 1: Objectives, Consent and Mistake of Fact

 

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.

 
Sexual Offences – Project 113 Background Paper

 

How do I make a submission?

Individuals and organisations can provide a submission on one or more of the options and questions in Volume 1 of the Discussion Paper and Background Paper. Submissions on Volume 1 close on 17 March 2023.

A submission can be made as detailed below. There is no particular format you need to follow.  You may, however, find it helpful to address one or more of the questions listed in the Discussion Paper (PDF 1.9MB). Refer to the list of the questions (PDF 209KB) which are numbered sequentially.

An online survey is now available that guides you through selected questions from Volume 1 of the Discussion Paper. Please note this survey does not allow you to save your responses to be opened at another sitting. A copy of the questions in the survey can be downloaded (PDF) for review before completing the survey if required.

Your submission may include your name or organisation. In the Final Report we will publish a list of people and organisations that have made submissions. Please let us know if you do not want to be included in that list.

You should also tell us if you want your submission to be confidential. If you do not ask for it to be kept confidential, we will treat it as public. This means that we may refer to it in our Final Report.

Participants are strongly encouraged to read the Discussion Paper before making a submission.

Alternately, submissions can be made by:

Please contact the Commission if you wish to receive the Discussion Paper or make a submission in an alternative format.

From February 2023, the Commission will hold consultations with reference groups and any organisation or person who wishes to contribute to law reform in this area. To register your interest in attending a consultation please email: lrcwa@justice.wa.gov.au

The closing date for submissions on Volume 1 of the Discussion Paper is Friday, 17 March 2023.

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 1 – The Law Reform Commission’s guiding principles
 
Issues Paper 3 – Statutory objectives and guiding principles
 
Issues Paper 4.1 – Should consent be defined as an agreement
 
Issues Paper 4.2 – Should consent have to be communicated
 
Issues Paper 4.3 – Should the negative indicators of consent be changed
 
Issues Paper 4.4 – Should consent in the context of commercial sexual agreements be clarified
 
Issues Paper 4.5 – Should there be a list of circumstances in which there is no consent
 
Issues Paper 4.6 – Circumstances in which a participant lack capacity to consent
 
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
 
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
 
Issues Paper 4.7.3 – Should the list of circumstances in which there is no consent include stealthing
 
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 Project 113: Issues and sexual health?
 
Issues Paper 4.8 – Circumstances in which a participant is under pressure to take part in sexual activity.
 
Issues Paper 4.9 – Timing and withdrawal of consent to sexual activity.
 
Issues Paper 5.1 – Mistaken belief in consent - the current law and criticisms of the current law.
 
Issues Paper 5.2 – Mistaken belief in consent – possible reform - exclude operation of the mistake of fact defence in sexual offence cases.
 
Issues Paper 5.3 – Mistaken belief in consent – possible reform – make the mistake defence more objective.
 
Issues Paper 5.4 – Mistaken belief in consent – possible reform – legislative guidance on the assessment of 'reasonableness'
 
Issues Paper 5.5 – Mistaken belief in consent – possible reform – require the accused to have taken measures to ascertain consent
 
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
 
Issues Paper 5.7 – Mistaken belief in consent – possible reform – reverse the onus of proving the mistake of fact defence
 
Issues Paper 6.1 – Should WA legislate jury directions for sexual offences.
 
Issues Paper 6.2 – When should a judge be required or permitted to give legislated jury directions and what should the legislation require
 
Issues Paper 6.3 – Possible legislated specific jury directions
 
Issues Paper 6.4 – Possible legislated jury directions about delay and the Longman direction

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.

Page reviewed 27 January 2023