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Media Statement - Crimes Amendment Bill (no 2)

Hon Phil Goff Minister of Justice

26 May 2004

Media Statement

Crimes Amendment Bill (no 2)

Justice Minister Phil Goff today sent a letter to the Chairperson of the Law and Order Committee, based on the following information:

Crimes Amendment Bill (No. 2)

The Crimes Amendment Bill (No. 2) proposes increased penalties for sexual conduct with a person aged 12-16, up from seven years to 10 years' imprisonment (section 134) and removes current time limitations on bringing prosecutions. This sends a strong message that predatory sexual exploitation of young people is not tolerated by society and will be punished accordingly.

However, few people would think that the appropriate response to consensual teenage sex between young people is prosecution in court and potential imprisonment.

For that reason, the Bill contains in proposed new section 134A a 'similarity of age' defence that would allow a legal defence to a charge of sexual conduct (which includes any type of consensual sexual touching) if there is no more than two years age difference between the two parties, and the person charged can prove to a court that there was consent.

Because the offence contained in section 134 is now to be gender neutral, the defence to this sort of conduct currently contained in section 134(3) of the Crimes Act 1961 no longer makes sense. Currently, a boy who is charged with sexual conduct with a girl aged 12-16 has a defence if he can prove that there was consent and that he was younger than the girl. If the boy is older than the girl, he has no defence. A girl cannot be charged at all under current law.

The proposed 'similarity of age' defence is a gender-neutral approximation of the current defence. Similar defences are available to under-age sex charges in overseas jurisdictions such as Canada, New South Wales, South Africa, Tasmania, Victoria, the Netherlands, Finland, Sweden, and many States in the United States. The inclusion of such a defence in this Bill was specifically flagged in my first reading speech to the House, as the Hansard record shows.

However, due to ill-informed media and political comment, the amendment of an existing legal defence to prosecution for consensual under-age sex between similarly-aged parties in certain circumstances has been misrepresented and misinterpreted as a proposal to lower the age of consent.

Consequently, the danger now is that a message is received that under-age sex is condoned. This is not the case. The Bill in fact reinforces the age of consent at 16 by increasing substantially the penalties for engaging in any sexual conduct with a person below that age, and for the first time rendering women liable to prosecution for predatory conduct as well as men.

These law changes, like other Government proposals to increase child pornography penalties to a maximum of 10 years in prison, and proposals to impose up to 10 years' additional supervision on child sex offenders after they have finished their prison sentence, are designed to send a very strong message that the Government is serious about protecting children from the predatory sexual behaviour that society rightly condemns.

The message that may now be being taken from the ill-informed comment about the proposed section 134A defence is completely contrary to the message that the Government is sending across its programme. It is my view therefore that the proposed 'similarity of age' defence should be removed from the Bill altogether.

The consequence of this is that any boy or girl who engages in any form of consensual sexual conduct with a person between the ages of 12 and 16 commits an offence, liable for imprisonment for up to 10 years, with no statutory defence. We will rely solely on police discretion not to charge in circumstances where there is clearly no predatory or exploitative conduct on the part of either partner.

To a large extent, we rely on that police discretion now to deal with circumstances where the existing section 134(3) defence does not apply.


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