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Who benefits from the equalising of age of consent provisions?: A critical analysis of the Wood Royal Commission Paedophile Inquiry recommendation for a lower minimum age of consent
Published online by Cambridge University Press: 29 February 2016
Abstract
When the Wood Royal Commission into the New South Wales Police Service released its final Report on the Paedophile Inquiry in August 1997, its recommendation to remove the distinction between heterosexual and female homosexual sex and male homosexual sex by lowering the age currently set for the latter category surprised many citizens. There was concern, firstly, about the fact that the lack of satisfactory protective mechanisms in the prevailing laws would escape investigation and, secondly, that acts previously understood to be paedophilia and pederasty would be de-criminalised, thereby increasing the vulnerability of young Australians to sexual predators.
The Crimes Amendment (Sexual Offences) Bill, introduced into the New South Wales Parliament in October 1997, and reintroduced in 1999, suggests a firm determination to implement the Royal Commission recommendation on consent, notwithstanding the fact that such change would be implemented in the absence of community debate and without addressing the implications of de-criminalisation. Although the Bill was rejected in the Upper House on both occasions, it is believed that further attempts will be made in the near future and, again, it will be in the absence of broad community debate. It is also widely believed that, should a change of this nature be implemented in New South Wales, it will have implications for children in other states across Australia.
This paper explores the implications of equalising at a lower rather than higher minimum age of consent.
- Type
- Research Article
- Information
- Copyright
- Copyright © Cambridge University Press 2001
References
Notes
1 The Crimes Amendment (Sexual Offences) Bill was introduced into the New South Wales Parliament (in October 1997) as a private member’s bill by Labor MLC Jan Burnswoods and reintroduced in October 1999. The Bill was defeated when the Upper House Members voted to cease debating it on 10 November 1999.
2 Royal Commission into the New South Wales Police Service, Final Report Volume V: The Paedophile Inquiry (henceforth RCPI), August 1997, p1087 and p1325.
3 These submissions addressed what was described in the Report as ‘the difference between the ways in which the law treats consensual heterosexual and mate homosexual intercourse with children aged 16 years or 17 years’. See RCPI Vol V, para 14.5.
4 Should the RCPI recommendation be adopted, a proportion of persons, who under the current provisions would be committing an offence, will escape prosecution. They will also gain improved access to a larger group of young males who will be rendered as unprotected by the law as young females have been under the current provisions.
5 Crimes Act (NSW) 1900, s.61J
6 Crimes Act (NSW) 1900, s.78K
7 Crimes Act (NSW) 1900, s.77(2)
8 The summary findings on the adequacy of protection laws were expressed as follows:
In the result, on their face the various provisions of the Crimes Act:
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– place less value on the protection of young females compared with young males;
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– operate in a way that is discriminatory against male homosexuals;
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– are inconsistent as to the availability of a defence;
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– are unnecessarily complex, particularly in relation to areas of overlap, consent and circumstances of aggravation; and
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– result in significant, and at times inexplicable, differences in maximum penalty for similar conduct.
RCPI Report, Vol V, para 14.10
9 RCPI Report, Vol V, Chapter 14 is entitled ‘Adequacy of Protection Laws’.
10 The relevant directive is expressed as follows:
The amended terms of reference, relevant to the paedophile inquiry, require the Royal Commission to inquire into: Whether the existing law prohibiting crimes involving paedophilia and pederasty are appropriate and sufficient to effectively prosecute persons accused and punish persons convicted of those crimes or other related crimes of sexual abuse. RCPI, Vol IV, para 1.27(g).
11 This is suggested by the Commission’s identification of the issues considered relevant in reaching its conclusions concerning the age of consent. See RCPI Report, Vol V, para 14.33 which states that the Commission had regard to & the need for the law to recognise current social mores and practices, and the circumstance that most adolescents are today sexually active by the age of 16 years; and are very much better informed about sexual matters through education, films, magazines, television, radio and otherwise than past generations;…
12 cited in the RCPI Report Vol IV, para 1.43
13 High level networks were described as akin to a single covert and organised network of individuals, comprising highly placed offenders, who communicate with each other in order to procure children for sexual purposes, and who have the capacity to use their office of influence to protect one another. See RCPI Report Vol IV, para 3.76 and 3.77
14 RCPI Report Vol IV, para 3.82
15 See Sydney Morning Herald, 27 August 1996, p3
16 RCPI Report Vol IV, para 1.64
17 Information gained from Gay Law Net referring to article in Melbourne Star Observer No.340, 15 November 1996, p4. The article reveals that a Sydney group Commission Watch - set up to monitor the NSW Wood Royal Commission’s enquiries into paedophilia and police corruption called on the International Lesbian and Gay Association (ILGA) for help in what was described as ‘urging reform’ of the State’s age of consent laws.
18 Sydney Daily Telegraph, 17 April 1999
19 The loss of opportunity relates to the fact that an order suppressing publication was issued by Judge Ainslie-Wallace who heard the matter. See Daily Telegraph, 17 April 1999.
20 Current legislation provides that ‘consent’ is no defence to any charge involving a male child under 18 years of age - Crimes Act (NSW) 1900 s.77.
21 RCPI Report Vol V, Recommendations p1087.