1.2 CONTEXTO NACIONAL
1.2.4 Secretaría de Educación Pública
New Zealand legislation does not specifically prohibit the publication of the name of a person accused of a sexual offence. Ho wever, under section
140 of the Criminal Justice Act 1985 (NZ) — which applies to criminal offences generally — a court may make an order prohibiting the publication of the name of any person accused or convicted of an offence (including a sexual offence), or any other person connected with the proceedings, or any particulars likely to lead to any such person’s identification. A section 140 suppression order can be made for a definite or indefinite period. Where an accused applies for a permanent suppression order, section 28 of the Victims’ Rights Act 2002 (NZ) requires the prosecutor to ascertain, and inform the court about, the victim’s views.
The relevant sections are set out in Appendix 6 of this report.
United Kingdom
Anonymity for defendants in sexual offence matters was repealed in the United Kingdom in 1988 following a recommendation by the Criminal Law Revision Committee (1984). The repeal was for two reasons:
• the practical difficulties experienced by police in apprehending persons suspected of sexual offences
• the injustice of singling out alleged sexual offenders for special protection ‘while other defendants, including those accused of the more heinous crime of murder, could be identified’ (Home Office 2002b, p. 19).
The issue was further discussed in 1999 (during the passage of the Youth Justice and Criminal Evidence Bill), and the government noted that it:
fully appreciated the very great distress and discomfort that is often experienced by those wrongly accused or charged with a sex offence after having been publicly identified. However, the criminal justice system operates on the principle of openness, which is a vital ingredient in maintaining public confidence and in encouraging witnesses to come forward. (Home Office 2002b, p. 19)
Ho wever, the courts of the United Kingdom have the power to order that the publication of a report of proceedings, or any part of the proceedings, be postponed where it is necessary for avoiding a substantial risk of prejudice to the administration of justice (see s. 4 of the Contempt of Court Act 1981 [UK]). The courts also have general powers to withhold a name or other matter from the public and to make directions prohibiting the publication of names (see s. 11 of the Contempt of Court Act).
The name of a defendant, for example, might be withheld in circumstances where doing so would be necessary to ensure his protection or that of his family. (Home Office 2002b, p. 20)
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The Commission endorses the view that if a sexual offence complainant is to be
treated differently by laws such as the Evidence Act 1977 (Qld), then it is also
fair that a defendant be treated likewise. There needs to be an appropriate balance between the rights of a complainant on the one hand and the rights of a defendant to a fair trial and the presumption of innocence on the other.
R
ECOMMENDATION19 —
That the current provisions in the Criminal Law (Sexual Offences) Act 1978 (Qld) that restrict the publication of the identity of a person charged with a sexual offence be retained.
Issue 25: Is the prohibition contained in the Criminal Law (Sexual
Offences) Act 1978 (Qld) adequate?
There are two major problems with the current prohibitions in Queensland’s Criminal La w (Sexual Offences) Act that require review. Both of these problems stem from a disparity between the protection from publicity given to a
complainant and the protection from publicity given to an accused.
1 The first problem concerns the narrow definition of a ‘prescribed sexual
offence’. Unlike the prohibition provisions that apply to complainants, the prohibition on naming a defendant applies only to a defendant who has been charged with a ‘prescribed sexual offence’. Because the definition of a ‘prescribed sexual offence’ is so narrow, some defendants who are charged with very serious sexual offences, such as maintaining a sexual relationship with a child (s. 229B of the Criminal Code), are not covered by the Act.
2 The second problem (which is dealt with in issue 26) concerns the failure of
the Act to prohibit the naming of a person who is under police investigation but who has not been charged.
Sections 7 and 10(3)(b) of the Act, which prohibit identifying information about
an accused from being published,75 apply only to an accused who has been
charged with a ‘prescribed sexual offence’, which is defined in section 3 of the Act to mean any of the following offences:
• rape
• attempt to commit rape
• assault with intent to commit rape
• an offence defined in section 352 of the Criminal Code,74which refers to:
— indecent assault
— procuring another person to commit an act of gross indecency — procuring another person to witness an act of gross indecency.
Sections 6 and 10(3)(a) of the Act, which prohibit identifying information about a complainant from being published, are much broader. They apply to a person against whom any offence of a sexual nature (including — but not limited to — a ‘prescribed sexual offence’) is alleged to have been committed.
Thus, the Act treats complainants and defendants quite differently. The prohibition on naming a complainant applies regardless of the type of sexual offence alleged to have been committed, whereas the prohibition on naming a defendant applies only if the defendant is charged with one (or more) of six prescribed offences. A defendant who is charged with other serious sexual offences, such as the offence of maintaining a sexual relationship with a child (s. 229B of the Criminal Code) can be identified by name at any time (subject to other laws such as the law of contempt by publication).
Thus, a defendant w ho is charged with numerous different sexual offences (only some of which amount to a ‘prescribed sexual offence’) may still be identified as having been charged with some — but not all — of the offences for which
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charges have been laid. For example, a defendant who has been charged with one count of rape and one count of incest can be identified as having been charged with incest (because incest does not come within the definition of a ‘prescribed sexual offence’), but cannot be identified as having been charged with rape.
To further complicate matters, the Act also treats some defendants differently. Where publication of the identity of a defendant is ‘likely to lead to the identification of a complainant’ (such as when the defendant is related to the complainant), the more general prohibition on publication in section 6 will apply to the defendant, rather than the restricted category prohibition in section 7.
The historical development of the legislation
In its current form, the definition of a ‘prescribed sexual offence’ in the Act does not include any of the child sex offences found in the Criminal Code, nor some of the other serious sexual offences including:
• unlawful sodomy (s. 208)
• attempted unlawful sodomy (s. 209)
• indecent treatment of a child under 16 (s. 210)
• carnal knowledge with a child under 16 (s. 215)
• abuse of an intellectually impaired person (s. 216)
• procuring a young person for carnal knowledge (s. 217)
• taking a child for immoral purposes (s. 219)
• incest (s. 222)
• maintaining a sexual relationship with a child (s. 229B).
Some of the reasons for the inconsistencies in the Act can be found in its history. When the Bill w as first introduced into Parliament in 1977, its main purpose was to provide protection for female complainants in rape and indecent assault
cases.75 Two features of the Bill were that a courtroom should be closed to the
public when a complainant gives evidence and that a complainant should not
be cross-examined about her sexual history without the court’s leave.76 The Bill
also sought to protect the identity of both the complainant and the accused. According to the (then) Attorney-General:
Under the Bill publication at large of the complainant’s identity is prohibited. Similarly the identity of the defendant is protected from premature publication.
Queensland Parliamentary Debates 1978, p. 1190
The Act, as it was originally passed, contained only one definition of a ‘sexual offence’. The original definition applied equally to complainants and defendants and was in the following terms:
sexual offence means any of the following offences: (a) rape;
(b) attempt to commit rape; (c) indecent assault on a female; or (d) assault with intent to commit rape.
However, in 1989, when extensive amendments were made to the sexual offence provisions in the Queensland Criminal Code, a new definition of ‘sexual offence’ was inserted into the Act. This new definition applied only to
complainants. The previous definition of ‘sexual offence’ was renamed so that it became the ‘prescribed sexual offence’ definition. Apart from some minor amendments to the Criminal Code (which have resulted in some corresponding minor amendments to the definition of a ‘prescribed sexual offence’), the definitions of a ‘sexual offence’ and a ‘prescribed sexual offence’ have
essentially remained unchanged since 1989. The explanatory memorandum and the parliamentary debates about the Criminal Code, Evidence Act and other
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Acts Amendment Bill 1988 do not explain why the new definition of ‘sexual
offence’ applied only to complainants and why the prohibition on naming defendants remained tied to the limited class of sexual offences that had appeared in the Act as originally passed.
In other words, there do not appear to be any valid reasons for the
inconsistencies in the definitions of a ‘prescribed sexual offence’ that currently apply.
Comparison with other jurisdictions
Only two other Australian jurisdictions — South Australia and the Northern Territory — have passed legislation prohibiting the naming of a person charged with a sexual offence. The relevant definition of a ‘sexual offence’ in both South
Australia’s Evidence Act 1929 and the Northern Territory’s Sexual Offences
(Evidence and Procedure) Act 1983 is much wider than the definition of a ‘prescribed sexual offence’ in the Queensland Act.
The South Australian Act defines a ‘sexual offence’ to mean:
• rape
• indecent assault
• any offence involving unlawful sexual intercourse or an act of gross
indecency
• incest
• any offence involving sexual exploitation or abuse of a child, or exploitation
of a child as an object of prurient interest
• any attempt of the foregoing offences.
The Northern Territory Act — Sexual Offences (Evidence and Procedure) Act
1983 — appears to have been modelled on the Queensland Act. However, unlike the Queensland Act, the Northern Territory Act has only one definition of
a ‘sexual offence’ and this definition applies to both complainants and
defendants. The Northern Territory Act defines a ‘sexual offence’ to mean:
• sexual intercourse or gross indecency between males in private
• sexual intercourse or gross indecency involving females under 16 years
• sexual intercourse or gross indecency by a provider of services to a mentally
ill or handicapped person
• attempts at procuration of young persons or mentally ill or handicapped
persons
• unlawful sexual relationship with a child
• indecent dealing with a child under 16 years
• incest by a male
• incest by an adult female
• sexual intercourse and gross indecency without consent
• coerced sexual self-manipulation
• enticing away a child under 16 years for immoral purposes.
Discussion
During the public hearings, the Queensland and Commonwealth Directors of Public Prosecutions argued that there was no need to amend the definition of a ‘prescribed sexual offence’ in section 3 of the Criminal Law (Sexual Offences) Act to include additional offences. On the other hand, several submissions argued that the definition should be amended to include, at the very least, all serious sexual offences committed against children, such as indecent treatment of a child under 16, carnal knowledge with a child under 16 and maintaining a sexual relationship with a child. For example, Mr O’Gorman, representing the
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Queensland Council for Civil Liberties, said:
... I must say that I was surprised yesterday b y Leanne Clare’s [the Queensland DPP] contention, and indeed Damian Bugg’s [the Commonwealth DPP] contention, that child sex offences should not be put in a different class so far as naming names from any other criminal offence. I looked at that proposition with more than mild surprise. Child sex offences, child sex prosecutions are in a category of their own. Child sex abuse so stirs the abhorrence of most people that unlike any other offence in the Criminal Code it arouses such
understandable and basic emotions of revulsion and distaste that the normal presumption of innocence which might be extended by those in the community to, say, a fraud or even a date r ape charge simply does not exist.
CMC 2002b, p. 87
This sentiment was also echoed by Citizens Against False Sexual Allegations Inc. (CAFSA) at the public hearings: ‘there is a presumption of guilt in these cases which flies in the face of our alleged presumption of innocence … this is probably the stickiest mud you can throw’ (CMC 2002b, p. 145). A recent newspaper editorial also noted that, ‘short of branding a person a murderer, there is scarcely a more damaging accusation that can be made than to label
someone a paedophile’ (Courier-Mail, 25 June 2002).
Apart from the current prohibition on naming a defendant charged with a prescribed sexual offence (until after they have been committed for trial or sentence), the law offers little protection for persons wrongly accused of a sexual offence. Where a defendant has been charged with a child sexual offence (or another offence not captured by the definition of a ‘prescribed sexual offence’) the fact that the defendant’s identity is not protected (even for a short period) can lead to irrepar able damage to the defendant’s reputation if the defendant is ultimately acquitted or the charges are dropped. In addressing this issue, Mr O’Gorman (p. 9) offered the following example:
Despite the fact that Scott Volkers has obtained a new and important coaching position with Australian Swimming, he will always be remembered as a person who was accused of child sexual offences, especially in his capacity as a swimming coach.
In due course, if he were to open an ordinary suburban swimming school, one would have to be concerned that there would be many in the community who would remember the allegations against him and would decline to send their children to such a swimming school.
It is the view of the Commission that the definition of a ‘prescribed sexual offence’ should be amended to provide greater universality of application and to harmonise the intrinsic rights and protection offered to both the complainant and the accused. To bring about this change, the definition could be amended thus: 1. The definition could be deleted from the Act and sections 7 and 10(3)(b)
could be amended so that the prohibition on naming a defendant would
apply w henever a defendant is charged with a ‘sexual offence’.77 Ho wever,
this would mean that a defendant charged with a very minor sexual offence, such as a minor indecent act (s. 227 of the Criminal Code), would not be able to be identified.
2. An additional list of serious sexual offences could be added to the definition. The only ‘drawback’ to this option is that the definition would need to be amended each time a serious sexual offence was added to, or renumbered in, the Criminal Code.
3. The third option — w hich is the preferred option — is that the current definition of a ‘prescribed sexual offence’ could be replaced with a new definition of a ‘prescribed sexual offence’ based on the definition of a
‘sexual offence’ that appears in section 4 of South Australia’s Evidence Act
1929. This definition would be wide enough to include the offences currently
covered by the definition of a ‘prescribed sexual offence’,78 and other
serious sexual offences found in the Queensland Criminal Code, but not
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R
ECOMMENDATION20:
That the definition of a ‘prescribed sexual offence’ contained in section 3 of the Criminal Law (Sexual Offences) Act 1978 (Qld) be deleted and replaced with a new definition modelled on the definition of a ‘sexual offence’ that appears in section 4 of South Australia’s Evidence Act 1929.