Historical review of sexual offence and child sexual abuse legislation

108 Pages·2014·1.51 MB·English

Historical review of sexual
offence and child sexual
abuse legislation in
Australia: 1788–2013
Hayley Boxall
Adam M Tomison
Shann Hulme
Prepared by the Australian Institute of Criminology
for the Royal Commission into Institutional
Responses to Child Sexual Abuse
AIC Reports
Special report
© Australian Institute of Criminology 2014
ISBN 978 1 922009 77 7 (Print)
978 1 922009 78 4 (Online)
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Edited and typeset by the Australian Institute of Criminology
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Contents
1 Introduction 92 Commonwealth
1 Scope and structure of this report 94 Sexual offence legislation 2000–13
2 Definitions 95 Conclusion
3 History of child sexual abuse in Australia: 102 References
1788–2013
3 Eighteenth century
Boxes
5 Nineteenth century
6 Twentieth century
4 Box 1 Cultural perceptions of childhood and
14 Australian Capital child sexuality in western society
Territory
4 Box 2 Mary Ellen
16 Sexual offence legislation 1950–2013
22 New South Wales
24 Sexual offence legislation 1950–2013 Tables
33 Northern Territory
7 Table 1 History of international child rights—the
35 Sexual offence legislation 1950–2013
role of the League of Nations and United
41 Queensland Nations
44 Sexual offence legislation 1950–2013 11 Table 2 Key Australian inquiries into child
52 South Australia sexual abuse 1985–2014
54 Sexual offence legislation 1950–2013 14 Table 3 Sexual offence legislation operating in
the ACT at the start of 1950
61 Tasmania
17 Table 4 Timeline of key amendments to ACT’s
64 Sexual offence legislation 1950–2013
sexual offence legislation (1950–2013)
72 Victoria
23 Table 5 Sexual offence legislation operating in
76 Sexual offence legislation 1950–2013
NSW at the start of 1950
84 Western Australia
25 Table 6 Timeline of key amendments to NSW’s
87 Sexual offence legislation 1950–2013 sexual offence legislation (1950–2013)
Disclaimer
The findings and opinions contained in this report are those of the authors and not the Royal Commission.
Any errors are the author’s responsibility. The law as stated in this report is current to 31 December 2013.
Contents C
34 Table 7 Sexual offence legislation operating in
the Northern Territory at the start of 1950
36 Table 8 Timeline of key amendments to the
Northern Territory’s sexual offence legislation
(1950–2013)
42 Table 9 Sexual offence legislation operating in
Queensland at the start of 1950
44 Table 10 Timeline of key amendments to
Queensland’s sexual offence legislation
(1950–2013)
53 Table 11 Sexual offence legislation operating in
South Australia at the start of 1950
55 Table 12 Timeline of key amendments to South
Australia’s sexual offence legislation (1950–
2013)
62 Table 13 Sexual offence legislation operating in
Tasmania at the start of 1950
65 Table 14 Timeline of key amendments to
Tasmania’s sexual offence legislation (1950–
2013)
72 Table 15 Sexual offence legislation operating in
Victoria at 1950
76 Table 16 Timeline of key amendments to
Victoria’s sexual offence legislation (1950–
2013)
85 Table 17 Sexual offence legislation operating in
Western Australia at the start of 1950
87 Table 18 Timeline of key amendments to
Western Australia’s sexual offence legislation
(1950–2013)
92 Table 19 Timeline of key amendments to the
Commonwealth’s sexual offence legislation
(2000–13)
97 Table 20 Summary of key changes to
Australian sexual offence legislation, by
jurisdiction
D Historical review of sexual offence and child sexual abuse legislation in Australia: 1788–2013
Introduction
At the end of 2013, the Royal Commission into The second section is an overview of the different
Institutional Responses to Child Sexual Abuse (the offences with which a person who sexually abused a
Commission) contracted the Australian Institute of child during 1950–2013 may have been charged
Criminology (AIC) to undertake a historical review of within the nine Australian jurisdictions. This review
sexual offence legislation in Australia, particularly as it does not include legislative changes that occurred
related to children, from British colonisation in 1788 to after 31 December 2013.
the present. The project involved a comprehensive
Section two sets out for each jurisdiction:
review of literature and legislation (current and past)
that was available online and in hardcopy. • an overview of the sexual offence legislation at
‘point-in-time’—1950;
The review’s two purposes were to:
• a timeline detailing key legislative changes during
1. develop an understanding of the socio-political 1950–2013 (eg definitional changes, inclusion of
context within which child sexual abuse legislation new offences and repeal of pre-existing offences
has developed in Australia and internationally; and etc); and
2. provide an overview of the offences with which a • a brief discussion of the sexual offence legislation
person who sexually abused a child may have focussing on the following key themes:
been charged during 1950–2013.
– the use of gendered language;
– the definition of sexual penetration/intercourse/
carnal knowledge;
Scope and structure of this
– the decriminalisation of homosexual sexual
report
acts;
– offences where the accused is in a position of
The report has two main sections. The first is an
authority or trust;
overview of the socio-political factors and events
linked to the development of Australia’s awareness – child abuse materials/child pornography/child
and understanding of child sexual abuse, statutory exploitation materials; and
child protection systems and child sexual abuse – mandatory reporting laws.
legislation from 1788 (when Australia was first
A range of offences were included in the legislative
colonised) until the end of 2013.
review including:
Introduction 1
• contact sexual offences where the child is below legislative changes to sex offences prior to 1950.
the legal age of consent; Third, the timeframes and resources allocated to this
• contact sexual offences where the child is above project were similarly restrictive, making a review of
the legal age of consent; legislation prior to 1950 unfeasible. Finally, it was
decided, in consultation with the Commission, that
• contact sexual offences where the age of the
the period of most interest and relevance to the
victim is not specified;
Commissioners was 1950–2013.
• child pornography offences; and
• non-contact sexual offences, including:
– facilitation offences—offences that increase the Definitions
likelihood of the sexual offence occurring (eg
procuring children for sexual purposes and Child sexual abuse is a nebulous phenomenon that
‘grooming’ children); has been defined in different ways at different points
– compelling persons to engage in sexual in western history. However, for the purpose of this
self-manipulation; report, child sexual abuse is defined as the:
– compelling persons to engage in sexual …involvement of dependent, developmentally
activities with a third person (not the offender); immature children and adolescents in sexual
– loitering near places frequented by children by activities that they do not fully comprehend, to
convicted sex offenders; which they are unable to give informed consent,
or that violate the social taboos of family roles
– voyeurism (eg ‘upskirt’ and peeping offences);
(Kempe & Kempe 1978:60).
– sexual servitude; and
This definition was chosen for a number of reasons.
– indecent exposure and obscene/offensive
First, it acknowledges the child’s limited ability to
behaviour in public.
give informed consent. Second, the definition
The offences included in the review were identified in
encompasses both contact offences (eg fondling of
consultation with the Commission. They included
genitals and/or breasts, masturbation, oral sex,
offences relating to producing, disseminating and/or
vaginal or anal penetration etc), and non-contact
possessing child exploitation materials/child
offences (eg exposing the child to pornography,
pornography. However, offences relating to the
grooming and sexual self-manipulation). Finally, the
distribution, production and similar of ‘Refused
definition was selected because it encompasses
Classification’ (RC) materials were excluded as being
sexual acts involving two children or adolescents
beyond the scope of the project. Offences relating to
who may be below the legal age of consent.
acts and individuals located outside Australia were
also excluded. Finally, while reference is made to The definition of ‘child’ used in this review was taken
incest offences throughout this document, this report from the Commission’s Terms of Reference, which
focuses predominantly on non-familial offences. was in turn taken from the United Nations
Convention on the Rights of the Child 1989. In this
The period 1950–2013 was selected for logistical
report, ‘child’ is defined as a human being who is
and conceptual reasons. First, at the time of
below the age of 18 years, unless noted otherwise.
conducting the review the research team
encountered some issues accessing primary Finally, the term ‘homosexual sexual intercourse’,
resources (ie legislation) for a number of jurisdictions unless otherwise specified, is used in this report to
(eg Tasmania and the Northern Territory) that were refer to anal sexual intercourse involving males.
enacted before 1950. Second, the relatively limited
2 Historical review of sexual offence and child sexual abuse legislation in Australia: 1788–2013
History of child sexual
abuse in Australia:
1788–2013
Whether the law is designed to reflect societal and brutal disciplinary methods and structures.
attitudes and mores or to facilitate and encourage Parents and educators were encouraged to use
social change, a jurisdiction’s legislature is the regular corporal punishment to ‘beat the evil’ out of
product of its socio-political context. Consequently, children and evidence suggests that this practice
to understand the history of child abuse and sexual started at a very young age (Tower 1989; deMause
offence legislation in Australia it is necessary to 1974; Flegel 2009; Lamont & Bromfield 2010;
analyse the socio-political context within which it Radbill 1980).
was developed.
Parenting practices of the time, referred to as
This section gives a brief overview of some of the ‘intrusive’ by historians such as deMause (1974),
factors that appeared to influence the focused on controlling the child and their perceived
implementation, revision and amendment of ‘immoral’ urges. For example, the practice of
Australian sexual offence legislation during swaddling was used to control children who,
1788–2013. Key themes include social/cultural untethered, were presumed to attempt to tear their
understandings of childhood and child sexuality, the eyes out. In particular, it was believed that left to their
role of government in child protection systems, and own devices, children would touch their genitals and
societal awareness of child sexual abuse. engage in other ‘deviant’ sexual practices.
At this point in history (as was the case until the
twentieth century) children had very few rights. They
Eighteenth century were seen as the chattels of their fathers, a view that
was enshrined in English canon law (Boss 1980). For
In the eighteenth century, little demarcation existed example, under English law, rape was the theft of a
between children and adults. ‘Childhood’ did not girl’s virginity that could be rectified through
exist—children were seen as extensions of their providing compensation to the father (Ames &
parents and as ‘little adults’ (deMause 1974). Houston 1990; Petrie 2000). This perception of
Consequently, children were believed to be born into children as chattels may offer some explanation for
original sin and as such were perceived as innately why, during the early stages of Australia’s settlement,
immoral, sinful and deviant. This perception, facilitated the government of the time did not provide services
and encouraged by Victorian evangelicalism, meant to protect those children who had arrived or had
that children were subject to strict and often harsh
History of child sexual abuse in Australia: 1788–2013 3
been born in the colony from harm. It has been boys and the forcible rape of girls under the age of
suggested that protecting children from harm ten years old. It was the enactment of these latter
inflicted by parents and caregivers was not offences in the sixteenth century in England that
perceived as a role for government who were began the process of protecting children from sexual
reluctant to interfere in how children were raised, as abuse under law.
they were the property of their parents (Lamont &
By the end of the 1700s, societal perceptions of
Bromfield 2010).
children had shifted drastically to a point where
Considering the use of corporal punishment was childhood was now being seen as a separate state
widespread, socially accepted and that children from adulthood and was characterised by
were, legally, the chattels of their parents, it is innocence, purity and naïveté (Ames & Houston
unsurprising that throughout the 1700s awareness 1990; Ennew 1986; Flegel 2009; Kincaid 1992). This
and understanding of child abuse, maltreatment and was particularly the case among the middle and
neglect was limited. That said, even during the initial upper class. At the same time, Victorian
period of British colonisation, concern grew within conservatism and moral puritanism denied children’s
the colony for orphaned and neglected children. sexuality as a phenomenon (Tower 1989; Egan &
Children who were orphaned or whose parents were Hawkes 2008). It emphasised the importance of
perceived as being ‘inadequate’ were boarded out protecting children from harm (including sexual
with approved families, or later, lived in orphanages, harm) from others and from themselves (Ennew
the first of which was established on Norfolk Island 1986; Petrie 2000). Some educators had started to
in 1795 (Liddell 1993; Tomison 2001). encourage parents to supervise their children at all
times and to ensure they were never naked in front
Awareness and understanding of child sexual abuse
of other adults. This, it was suggested, ‘constituted
was particularly limited in the eighteenth century.
one of the first indications that society at large
Correspondingly, only a handful of child sexual
recognised the potential for children to be sexually
offences under English law were adopted in Australia
abused’ (Conte & Shore 1982, cited in Tomison
during early settlement (see Kercher 1995 for an
2001:48).
overview of the history of Australian law and legal
principles). These included the forced sodomy of
Box 1 Cultural perceptions of childhood and child sexuality in western society
• Prior to the twelfth century no notion of ‘childhood’ existed. Children were ‘small adults’
• Fourteenth–seventeenth century—children viewed with ‘indifference’. High child death rates meant that parents emotionally
distanced themselves from their children. Children seen as another source of income for the family, particularly within poor families
• Eighteenth century—children perceived as innately immoral, requiring strict discipline and religious instruction. Children seen as
needing to be controlled through a range of means, including corporal punishment
• Nineteenth century—contemporary notions of purity and naiveté closely aligned. Children were brought into the centre of family life
and viewed as innocents, untainted and precious. Children needed to be protected from adults and themselves, particularly in relation
to ‘self-harm’, ie masturbation
Source: Adapted from deMause 1974; Flegel 2009; Goldman & Ronken 2000
Box 2 Mary Ellen
In 1873, a Methodist social worker discovered nine year old Mary Ellen badly beaten in her home. The social worker approached the
police to assist the child but they were unable to intervene. Despite a scarcity of broader understanding around how to deal with matters
of this kind, after some time the social worker approached the American Society for the Prevention of Cruelty to Animals (ASPCA) which
agreed to intervene on behalf of the child. The case, which was prosecuted by the ASPCA’s lawyers, was successful, resulting in the
removal of Mary Ellen from her home and her guardian mother being charged with assault.
Source: Boss 1980; Flegel 2009; Tomison 2001
4 Historical review of sexual offence and child sexual abuse legislation in Australia: 1788–2013
Nineteenth century increased over the conditions that institutionalised
children were exposed to, and the deprivation they
By the mid-1800s, awareness of child sexual abuse suffered as a result of having no family life
was increasing in Australia and overseas. A series of (Mendelsohn 1979; Liddell 1993).
government inquiries had found that child prostitution,
The end of the nineteenth century was characterised
incest and sexual abuse were common in some
by social upheaval and campaigning by
Australian settlements, particularly Sydney. The
organisations and activists concerned with a range
reports from these inquiries described high levels of
of social welfare issues, including child welfare and
‘sexual immorality’, which were largely attributed to
elements of child abuse, as it is now defined. During
entrenched poverty and overcrowded living quarters.
this time voluntary child protection bodies emerged
In particular, it was noted that many families still
in the United States, the United Kingdom and
allowed children to sleep in the same bed as adults,
Australia (Lamont & Bromfield 2010). The
creating situations where sexual abuse was more
establishment of these new organisations was in
likely to occur. It was also suggested that these
part influenced by the highly publicised case of an
sleeping arrangements made it more likely that
abused nine year old girl in New York (see Box 2).
children would witness their parents having sex,
The ‘child rescue’ movement of the latter part of the
which in turn created ‘promiscuous’ and ‘seductive’
1800s also led to the development of interventionist
children (Finch 1991).
policies designed to facilitate the state’s regulation of
At the same time, social welfare organisations Indigenous persons and their childrearing practices
operating in Australia and overseas were raising (Liddell 1993).
awareness of child prostitution. Despite evidence of
However, while many of these fledgling social
a booming male prostitution industry in areas such
welfare and child protection agencies identified
as London and Sydney, the awareness-raising
‘imperilled morality’ as a form of child abuse, they
efforts of these social welfare agencies were focused
rarely chose to engage in matters involving sexual
on female children (Flegel 2009). However, not all
abuse unless there were compounding issues
child prostitutes were seen as victims and worthy of
associated with physical abuse or neglect (Olafson,
protection. Some children were described by
Corwin & Summit 1993). Scott and Swain (2002)
commentators as ‘wanton’ and ‘lustful’, sexual
suggest that the reluctance of these groups to
aggressors and complicit in the sexual activities.
intervene in cases of child sexual abuse may have
Rather than victims, these children were viewed as a
been because it was more difficult to detect and
corrupting influence, a threat to society and other
prove (unless brought to the attention of neighbours
children (Flegel 2009).
or as a result of an unexplained pregnancy).
Despite the findings of government inquiries and the
There was also a sense in which nineteenth-
efforts of social welfare groups, the government
century child-savers had difficulty in seeing the
continued to be ambivalent about assuming full
victim of sexual abuse as a child. The idealised
responsibility for providing child welfare and
version of childhood that they were seeking to
‘protection’ services. For example in NSW, voluntary
construct was an innocent one which had no
committees continued to be responsible for running
space for a sexualised child. The place of such
orphanages and reformatories, funded by
victims was in a reformatory…there was certainly
government subsidies (Liddell 1993). As a
no place for them within the redemptive circle of
consequence of the gold rushes and subsequent
the substitute family where their mere presence
population increases in the mid1800s, jurisdictions
would serve to contaminate (Scott & Swain
such as NSW and Victoria experienced a significant
2002:17).
increase in the number of abandoned and neglected
children (Gandevia 1978: Liddell 1993). This led to Awareness of child sexual abuse was also increasing
several jurisdictions introducing child protection within the psychoanalytical community, primarily
legislation, which included provisions for children to because of the work of Sigmund Freud. At the end
be sent to ‘reformatory and training’ schools (Liddell of the 1800s, Freud, noticing that most of his female
1993; Markiewicz 1996a). However, concern patients had histories of sexual contact with male
History of child sexual abuse in Australia:1788–2013 5
adults as children, posited that one of the underlying twentieth century, under significant pressure from his
causes of hysteria was inappropriate sexual relations peers, Freud released a series of new papers
with adults during childhood (so-called Seduction contradicting his previous work on Seduction
Theory). Theory. In his revised work, Freud posited that his
female clients who had recalled experiences of
The second half of the nineteenth century was also
child sexual abuse had either fantasised the events
notable due to the efforts of early feminist and moral
because of unresolved sexual feelings towards their
purity groups who campaigned in Australia, the
parents (Oedipal Complex), or had been the sexual
United States and England to have the age of
aggressors in the first place (NSW Government
consent raised from 13 to 16 years (Phillips 2002;
1985). Freud continued to deny the occurrence of
Scutt 1991). New South Wales, Western Australia
child sexual abuse throughout the 1900s, and even
and Queensland subsequently raised the age of
took concerted efforts to repress the research of
consent to 14 years in 1883 (Criminal Law
his peers, which appeared to contradict his now
Amendment Act 1883), 1892 (Criminal Law
revised theory. In the early 1930s, another
Amendment Act 1892) and 1899 (Criminal Code Act
psychoanalyst, Sándor Ferenczi, released a paper
1899) respectively. Meanwhile, South Australia and
in which he argued that child sexual abuse was a
Victoria raised the age of consent to 16 years in
major source of trauma. Upon releasing the paper,
1885 (Criminal Law Act 1885) and 1891 (Crimes Act
Freneczi’s colleagues including Freud, strongly
1891) respectively. At the same time, many
urged him to retract his findings, which he refused
Australian jurisdictions started introducing new
to do (Olafson, Corwin & Summit 1993). When he
legislation that expanded substantially the pre-
died in 1933, the psychoanalyst community
existing sexual offence laws. For example, for the
suppressed Ferenczi’s work.
first time a number of jurisdictions made it an
offence to procure a child for sexual purposes and Further, Tomison notes that the first half of the 1900s
for male teachers to have sexual relationships with was ‘not notable for changes to child welfare
their female students. practice, but it did see the state taking greater
responsibility for looking after children’s welfare
[through the increased provision of institutional care]
and the increased use of legislation to enforce
Twentieth century
appropriate standards of care’ (2001:50). For
example, in response to concerns raised in relation
The 1900s saw significant change in several areas
to the standard of care received by children living in
relating to sexual offence legislation in Australia. The
institutions, a number of jurisdictions introduced
following section examines:
legislation to monitor standards (Markiewicz 1996;
• 1900–1930s; Tomison 2001).
• 1940s–1960s; and
This period was also notable because some
• 1970s–2013. Australian jurisdictions increased the age of consent
to sexual intercourse from 14 to 16 years (eg
1900–1930s Western Australia via the Criminal Law Amendment
Act 1892 Amendment which was assented to in
By the end of the 1800s, societal awareness and
1900, and NSW via the Crimes (Girl’s Protection) Act
concern regarding child sexual abuse was increasing
1910), and introduced legislation which made it an
in Australia and overseas. This led to a suite of new
offence to produce, distribute and the like, indecent
offences being included in Australian sexual offence
materials. These new laws may have been used to
legislation across jurisdictions, and the age of
prosecute individuals producing child pornography.
consent increasing from 13 to 14 or 16 years
(depending on the jurisdiction). However, the early Finally, on a much larger scale, in the 1920s the
1900s did not continue this trend. At the start of the League of Nations introduced The Declaration of the
Rights of the Child 1924 (the Declaration) which
6 Historical review of sexual offence and child sexual abuse legislation in Australia: 1788–2013