Discussion Paper - Law Reform Commission of Western Australia

examination of Hansard shows that no such statementwas made. On 16 September 2010, Peter Collier(representing the Minister of Police) said that ‘therewere 2173 reportable offenders supervised by WA Policeunder ANCOR’. 18 As will become very clear throughoutthis Discussion Paper, there are a significant number ofWestern Australian registered offenders who would notordinarily be regarded as paedophiles by members ofthe community. The Commission has chosen to avoidusing this term (unless necessary given the context of thediscussion). The CPOR Act does not create a paedophileregister – it is register of offenders (both juvenile andadults) who have committed a variety of sexual offencesagainst children.culpability of the offender. 26 Certainly, in the context ofthis reference, cases involving ‘consensual’ sexual activitybetween two young people have been highlighted asone example where sex offender registration may not beappropriate. In order to avoid confusion between the legalconcept of consent (as discussed above) and its ordinaryfactual meaning, the Commission will endeavour as faras possible to adopt phrases such as ‘the victim of theoffence was a willing participant’ rather than using theterm ‘consent’. 27 However, the phrase ‘consensual sexualactivity’ has been used in this Paper for ease of referenceto indicate sexual activity that was factually (althoughnot legally) consensual.Co n s e n tA number of sexual offences are listed in the CriminalCode (WA). 19 Some have general application and,therefore, can involve either an adult or a child victim(eg, sexual penetration without consent). 20 On the otherhand, there are a number of sexual offences that arechild-specific. These offences can be separated into threegeneral categories: sexual offences against a child underthe age of 13 years; 21 sexual offences against a child of orover the age of 13 years but under the age of 16 years; 22and sexual offences against a child under the age of 18years by a person in authority. 23 For these child-specificoffences, the issue of consent is irrelevant for determiningcriminal responsibility. A person is guilty simply byengaging in the proscribed sexual conduct with a childunder the relevant age – it does not matter if the victiminstigated the sexual activity or willingly participated init. 24 This rule applies as equally to a mature adult whoengages in sexual activity with a young child as it doesto an adolescent who engages in sexual activity with aperson of a similar age. 25Nevertheless, the fact that a child victim willinglyparticipated in the sexual activity may be relevantwhen assessing the seriousness of the offence and the18. Western Australia, Parliamentary Debates, Legislative Council,16 September 2010, 6774 (Mr P Collier).19. See Criminal Code (WA) ch XXXI.20. Criminal Code (WA) s 325.21. Criminal Code (WA) s 320.22. Criminal Code (WA) s 321.23. Criminal Code (WA) s 322.24. Age of consent laws vary throughout Australia. In mostAustralian jurisdictions the age of consent is 16 years. However,in South Australia and Tasmania the age of consent is 17 years.In Queensland, the age of consent for vaginal sex is 16 years;however, to legally engage in sodomy a person must be over theage of 18 years.25. However, as discussed later, some jurisdictions vary in thisregard: see Chapter Four, ‘Similarity of age defence’.26. See, eg, The State of Western Australia v SJH [2010] WASCA 40,[69] (Wheeler JA).27. In this regard, the Commission notes that the VictorianSentencing Advisory Council used the phrases ‘legal consent’and ‘factual consent’ in its report on penalties for sexualoffences committed against a child under the age of 16 years:Victorian Sentencing Advisory Council, Maximum Penalties forSexual Penetration with a Child under 16, Report (2009) 56.16 Law Reform Commission of Western Australia – Community Protection (Offender Reporting) Act 2004: Discussion Paper