Organización de las Naciones Unidas para la Educación, la Ciencia

Most criminal offences are set out in the Criminal Code (Qld). There are two main categories of sexual offences:

1 offences committed against children (where consent is not considered to be an issue)

2 more general offences that can be committed against children or adults. The Criminal Code contains a number of offences committed against children under a specified age, being 16 years, 18 years, or ‘the prescribed age’. The offence of indecent treatment of a child under 16 (s. 210) is the most frequently charged of the c hild sex offences.12_{This offence can be committed in a number} of different ways, including: indecent dealing with a child; procuring a child to commit an indecent act; permitting oneself to be indecently dealt with by a child; exposing a child to an indecent act; exposing a child to indecent material (such as a photo) without a legitimate reason; and taking indecent photos or videos of a child without a legitimate reason. Other child-specific offences include:

• carnal knowledge of a child under 16 years (s. 215) • sodomy13

• maintaining a sexual relationship with a child, which requires proof of three or more sexual offences (s. 229B)14

• knowingly enticing or recruiting a person under the age of 18 years to engage in carnal knowledge (s. 217)

• selling or publicly displaying obscene publications depicting a child under 16 years (s. 228[2]).

Other sexual offences that may be committed against children or adults include: • incest (s. 222), w hich is carnal knowledge with or of the person’s offspring or other lineal descendent or sibling, parent, grandparent, uncle, aunt, nephew

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or niece (the offence also applies to relationships of an adoptive, half or step nature, including de facto and foster relationships; consent is immaterial) • rape (s. 349), which is carnal knowledge with or of another person without

their consent, including vaginal or anal penetration • procuring sexual acts by coercion (s. 218)

• conspiracy to induce a person by fraud or false pretences to permit a person to have carnal knowledge with or of them (s. 221)

• assault with intent to commit rape (s. 351)

• indecent assault or procuring another person, without the person’s consent, to commit an act of gross indecency or to witness an act of gross indecency (s. 352)

• prostitution (ss. 229C–229O), including procuring a person to engage in prostitution, being found in, or leaving, a place suspected of being used for prostitution by two or more prostitutes; participating in the provision of prostitution; having an interest in premises used for the purposes of prostitution — the Prostitution Act 1999 (Qld), which took effect on 1 July 2000, provides for licensed brothels to operate legally in Queensland; however, the Act maintains strict penalties for any involvement of y oung people under the age of 18 years.

The Criminal Law Amendment Act 1997 (Qld) created a number of new offences

in the Criminal Code, broadened the operation of some existing offences and increased the penalties for some offences, particularly violent offences and sexual offences. Some of the amendments were as follows:

• replacing the definition of ‘carnal knowledge’ with a new definition that says carnal knowledge is ‘complete on penetration to any extent’

• removing the anomaly between penalties for carnal knowledge of girls and sodomy of boys

• removing the requirement for a judicial warning to be given to a jury about the dangers of acting upon the uncorroborated evidence of witnesses from all of the sexual offence provisions

• widening the types of sexual relationships covered by the offence of incest to include uncles, aunts, nephews, nieces and a limited category of half, step or adoptive relations

• amending the definition of rape to, firstly, make it an offence for either a male or a female to commit rape upon the other and, secondly, to include non-consensual sodomy in the definition

• amending section 93A of the Evidence Act 1977 (Qld) (under which a videotaped recording of an interview between an investigator and a child Child Protection Act 1999 (Qld)

Commission for Children and Young People Act 2000 (Qld)

Corrective Services Act 2000 (Qld)

Criminal Code (Qld)

Criminal Law Amendment Act 1945 (Qld)

Criminal Law Amendment Act 1997 (Qld)

Criminal Law Amendment Act 2000 (Qld)

Criminal Law (Sexual Offences) Act 1978 (Qld)

Criminal Offence Victims Act 1995 (Qld)

Dangerous Prisoners (Sexual Offenders) Bill 2003

Director of Prosecutions Act 1984 (Qld) now the

Director of Public Prosecutions Act 1984 (Qld)

Evidence Act 1977 (Qld)

Evidence (Protection of Children) Amendment Bill 2003

Penalties and Sentences Act 1992 (Qld)

Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 (Qld)

Prostitution Act 1999 (Qld)

SexualOffences (Protection of Children) Amendment Act 2003 (Qld)

Victims Rights Act 1996 (NSW)

19 C H A P T E R 3 : S E X U A L O F F E N C E L E G I S L A T I O N under the age of 12 can be led as evidence) so that it also applies to an intellectually impaired person.

In the same year, the Penalties and Sentences (Serious Violent Offences)

Amendment Act 1997 (Qld) amended the Penalties and Sentences Act 1992

(Qld) by creating a separate sentencing regime for offenders convicted of certain offences defined under the legislation as ‘serious violent offences’. Under this separate regime, offenders must serve 80 per cent of the term of imprisonment imposed, or 15 years, whichever is the lesser, before being eligible for parole.

The Criminal Code defines ‘serious violent offences’ to include: • unlawful sodomy (s. 208)

• attempted sodomy (s. 209)

• indecent treatment of children under 16 (s. 210) • carnal knowledge with or of children under 16 (s. 215) • abuse of intellectually impaired persons (s. 216)

• procuring young person etc. for carnal knowledge (s. 217) • procuring sexual acts by coercion etc. (s. 218)

• incest (s. 222)

• maintaining a sexual relationship with a child (s. 229B) • rape (s. 349)

• attempt to commit rape (s. 350)

• assault with intent to commit rape (s. 351) • sexual assault (s. 352).

The Criminal Law Amendment Act 2000 made further amendments to the

Criminal Code and the Evidence Act in accordance with recommendations contained in the Report of the Taskforce on Women and the Criminal Code

(Queensland Government 2000a). Some of the key amendments to the Criminal Code were as follows:

• Section 215 (previously headed ‘carnal knowledge of girls under 16’) was amended to cover women who have sexual intercourse with underage boys. • Section 228 (headed ‘obscene publications and exhibitions’) was amended

to cover the distribution of obscene computer images.

• A new offence was inserted outlawing the practice of female genital mutilation or female circumcision (see s. 323A).

• A new definition of ‘consent’ was inserted for rape and sexual assault offences (see s. 348).

• The r ape provision was amended so that:

— the offence of rape includes penetration by the offender of the vagina, vulva and anus of the victim by any body part or object

— the offence of rape includes penetration of the mouth of the victim by the offender’s penis

— it is clear that rape can be committed by a female.

Some of the key amendments to the Evidence Act were as follows:

• Sections 9 and 9A were amended so that the scheme that allows a child to give unsworn evidence will also apply to any person who does not

understand the nature of an oath (for example, a person with an intellectual disability).

• Section 20 was replaced with a new provision allowing the court to disallow — or inform a witness that he or she need not answer — a question as to credit if the court considers an admission of the question’s truth would not

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materially impair confidence in the reliability of the witness’s evidence. • Section 21 was replaced with a new provision allowing the court to disallow

— or inform a witness that he or she need not answer — a question that the court considers is an improper question. An improper question is defined as a question that uses inappropriate language or is misleading, confusing, annoying, harassing, intimidating, offensive, oppressive or repetitive. • Section 21A was amended to expand the factors that a court is to take into

account in declaring a person to be a ‘special witness’.15 _{The additional} factors are: age, level of understanding, relationship to any party in the proceeding, and the nature and subject matter of the evidence.

• Sections 21L to 21S were inserted to prohibit an unrepresented accused from cross-examining, in person, children, intellectually impaired persons and victims of sexual or violent crime. A court can make an order that Legal Aid Queensland (LAQ) provide the accused with legal assistance for the sole purpose of cross-examining the protected witness.

• Section 93B was inserted to allow certain hearsay evidence to be admitted as evidence in certain criminal proceedings (including rape or sexual assault proceedings).

In addition:

• Section 4 (rule 2) of the Criminal Law (Sexual Offences) Act 1978 (Qld) was amended so that any questioning of the complainant’s sexual acti vities with the accused would be subject to the court’s leave.

• Section 14 of the Criminal Offence Victims Act 1995 (Qld) was amended to make it clear that it is not a requirement for a victim to give the prosecutor details of the harm suffered by the victim, and the absence of those details at sentence does not of itself give rise to an inference that an offence has had little or no impact on the victim.

The Criminal Law (Sexual Offences) Act is another piece of legislation that is relevant to the prosecution of sexual offences. It contains three types of provisions:

1 It sets out some specific rules of evidence concerning sexual offences. For example, it says that ‘without leave of the court, evidence shall not be received as to the sexual activities of the complainant with any person’ (s. 4 [rule 2(b)]).

2 It requires a courtroom to be closed to the public while a complainant is giving evidence in a committal hearing or trial (s. 5).

3 It prohibits the media from naming a sexual offence complainant at any time and it prohibits the media from naming a person accused of committing certain sexual offences before the accused is committed for trial or

sentence. (This prohibition on naming provisions is dealt with in detail in Chapter 9 of this report.)