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The National Review of Child Sexual Abuse and Sexual Assault Legislation in Australia, prepared by the Australian Institute of Criminology (AIC), provides a comprehensive examination of child sexual abuse (CSA) and sexual assault laws across Australian jurisdictions. Commissioned by the Australian Attorney-General's Department, the review aligns with the Standing Council of Attorneys-General (SCAG) Work Plan to Strengthen Criminal Justice Responses to Sexual Assault (2022–2027). The review’s purpose is to identify gaps, inconsistencies, and barriers in current legislation, explore emerging trends, and offer recommendations for legislative reforms to improve justice outcomes for victims and survivors.
Key Aims of the Review:
- Legal Frameworks: To assess the scope of child sexual abuse and sexual assault legislation across Australia.
- Consistency: To identify differences and similarities between jurisdictions regarding legal definitions, consent provisions, and specific sexual offences.
- Barriers: To explore barriers that impede consistency and effective justice outcomes.
- Emerging Trends: To address gaps in legislation concerning new and emerging issues such as technology-facilitated sexual violence (TFSV).
- Best Practices: To identify best practices in sexual abuse legislation, nationally and internationally.
Approach:
The review consists of a literature review, legislative analysis, and consultations with victims, survivors, and stakeholders. The literature review highlights the evolution of sexual violence laws, with particular focus on consent models and the influence of technology on sexual offences. The legislative analysis explores statutory provisions and identifies both harmonies and divergences across jurisdictions, particularly in the areas of consent, conduct, aggravating circumstances, and defences.
Findings:
- Consent Provisions: Across Australian jurisdictions, there is significant consistency in adopting a communicative model of consent, where consent must be actively communicated through words or actions. Some jurisdictions have progressed toward an affirmative consent model, requiring participants to actively seek consent. However, variations exist in how these models are implemented, especially between Code and non-Code jurisdictions.
- Sexual Conduct: All jurisdictions criminalise penetrative and non-penetrative sexual conduct, persistent child sexual abuse, image-based abuse, and the failure to report CSA. There are differences, however, in how various jurisdictions define and penalise non-contact sexual conduct, such as indecent acts and grooming.
- Aggravating Circumstances: Common aggravating factors, such as younger victim age, relationships of authority, and coercion, are consistently treated across jurisdictions. However, there are inconsistencies in how circumstances like humiliation, intimate partner violence, and conduct against vulnerable populations are legislated.
- Defences and Excuses: Defences vary between jurisdictions, especially concerning mistaken belief in consent and age-related defences. Some jurisdictions provide more comprehensive defences related to sexual conduct, while others do not include provisions for mistake of fact or reasonable belief.
Victim and Survivor Consultations:
The report highlights the experiences of victims and survivors, revealing persistent barriers to justice, particularly in cases of historical and institutional abuse. The challenges include investigative difficulties, lack of evidence, and issues of consent. Many survivors expressed dissatisfaction with the criminal justice process, noting that legal terminology and the scrutiny of victim behaviour during trials remained significant obstacles.
Recommendations:
The report calls for greater national consistency in child sexual abuse and sexual assault laws, including:
- Adoption of affirmative consent models in all jurisdictions.
- Standardisation of penalties and definitions related to sexual offences.
- Improved protections for vulnerable populations, particularly children, individuals with disabilities, and culturally diverse communities.
- Legislative reforms to address technology-facilitated sexual violence (TFSV).
- Enhanced training for legal professionals, law enforcement, and service providers to better support victims and survivors.
The report also emphasises the importance of non-legislative reforms, such as public awareness campaigns, community education, and better support systems for survivors navigating the justice process.
This review provides a roadmap for harmonising child sexual abuse and sexual assault laws across Australia, ensuring that victims and survivors receive the justice and protection they deserve.
