ACT to remove sex crime immunity that originated in Ancient Rome
- Category: Legislation and Acts
- Created: Friday, 22 February 2019 17:15
- Written by Katie Burgess - Canberra Times
Until 1985, there was a common law presumption in the ACT that a male under 14 years was "incapable of sexual intercourse".
The clause is part of a wider bill enacting recommendations from the royal commission into institutional child sex abuse.
The presumption has been traced to sixth-century Rome and draws on a school of thought that boys became sexually mature at the age of 14 and were thus impotent.
It also has origins in English case law. In an 1892 case, the Queen's bench quashed the conviction of a 13-year-old boy who had been found guilty of the felony of having "carnal knowledge" of an eight-year-old girl.
The accused was 62 by the time the case made it to court and the offences allegedly occurred before NSW repealed the presumption.
It meant the judge could not find the defendant criminally liable for counts which occurred while he was aged under 14.
While the common law presumption was abolished in the ACT in 1985, it was not done so retrospectively, meaning some survivors of child sexual abuse could be denied justice.
Attorney-General Gordon Ramsay said there were no known cases of the common law immunity being used in Canberra, but removing the potential for it to be invoked was a royal commission recommendation.
The provision is part of a bill introduced to the Assembly on Thursday that will also make it a crime for adults in Canberra to conceal child abuse.
It is part of the third tranche of legislation that addresses recommendations from the royal commission.
Mr Ramsay there would be two more tranches before the end of the parliamentary term.
The legislation also make ministers of religion mandatory reporters and clarifies who in an institution must make reports to the Ombudsman.
An independent review of the prospective laws by Justice Julie Dodds-Streeton found senior officers of the Ombudsman had experienced difficulty in identifying the head of a religious body who is obliged to report.
They stated that they had adopted a pragmatic approach and regarded it as the responsibility of religious bodies and associated heads to identify themselves.
Under the bill, if a religious body does not nominate an individual as the head of their organisation, the Ombudsman can do it for them.
The bill also states allegations of sexual and physical abuse against children that are aired in confessional must be reported to the Ombudsman, under the reportable conduct scheme. Sexual abuse claims also heard under the seal of confession must be reported to police under the draft laws as well.
Previous changes to ACT laws that have come about because of the royal commission include preventing a sex offender's "good character" from being taken into account during sentencing if it was that character which enabled them to commit the crime, as well as the introduction of two new grooming offences.
The ACT also outlawed the Ellis defence, which gave churches a legal loophole to avoid being sued by survivors, and on Tuesday passed laws to force non-government schools to implement the royal commission's recommendations.
Source : https://www.canberratimes.com.au/politics/act/act-to-remove-sex-crime-immunity-that-originated-in-ancient-rome-20190221-p50za0.html