Page 445 - Week 02 - Tuesday, 8 March 2011
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loopholes. This is a principle that applies to all crimes, of course. For this reason, the definition of sexual intercourse is amended to close down a potential loophole. The amendment made is minor but important.
Sexual intercourse is currently defined to include penetration by an object. The amendment today defines “object” to include an animal. While this may have been the conclusion by a court anyway, it is best to avoid doubt. The explanatory statement which discusses this amendment describes a truly horrific example from New South Wales that does deserve to be criminalised. This amendment today closes down any potential for conduct of that type to escape conviction in the ACT if we are ever unfortunate enough to confront those circumstances.
Amendments 5, 6 and 7 refine the construction of the mental element for the offence of the act of indecency without consent. Currently, the offence has two mental elements listed, either knowledge that the person did not consent or recklessness as to whether they consented. This raises the legal problem of duplicity which the attorney has already discussed and which the explanatory statement gives good analysis of.
The Greens support the solution. It is consistent with where the problem has been resolved in other parts of the act. The end result is greater certainty of the law, which is in the interests of both victims and defendants and in the interests of justice more generally. Importantly, the mental element of the crime is neither watered down nor made tougher; rather, it is now expressed in a way that avoids the problems of duplicity, while retaining both mental tests.
Amendment 8 reinserts the offence of bestiality into the ACT statute. As has been explained in the Assembly previously, prior to self-government there was a conjoined crime of bestiality and buggery. In the process leading up to self-government, this offence was repealed. This was intended to bring to an end the criminalisation of homosexuality, which was indeed a very welcome reform at the time.
However, what was not thought through or understood at the time was that bestiality was not related to the criminalisation of homosexuality. What should have happened at the time was that a stand-alone offence of bestiality should have been created while at the same time deleting the offence of buggery. The amendment today fixes this mistake by reinserting the crime of bestiality. The remainder of the amendment updates the construction of other crimes aside from sex crimes and improves criminal procedure.
With regard to amendment 9, victim impact statements are one such area. Currently, the legislation only allows for statements to be tendered in court after the offender has been convicted. This reflects an important legal principle that the courts may only use victim impact statements as a means of determining sentence and not as a means of determining guilt.
The amendment today expands the instances in which a statement may be given by a victim while remaining aligned to that key concept. The amendment reflects the numerous ways in which a defendant may actually be found to have committed an offence. They may plead guilty; they may have the offence proven; they may be found
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