In January 1999, the Crimes Legislation Amendment (Child Sexual Offences) Act 1998 (NSW) commenced. These amendments introduced the offence of Persistent Child Sexual Abuse under section 66EA of the Crimes Act 1900 (NSW).
Prior to 1999, courts typically required significant details about each individual incident irrespective of how many separate instances of child abuse were alleged. This meant victims needed to remember details about each separate incident, including the timing and location of the incident.
The new Persistent Child Sexual Abuse charge enabled the prosecution to secure convictions even where the Prosecution was unable to prove particulars of the time, date and place of the alleged child sexual abuse. The maximum penalty for this offence was 25 years imprisonment.
The Royal Commission into Institutional Responses to Child Sexual Abuse
In early 2013, the Royal Commission into Institutional Responses to Child Sexual Abuse was established.
In December 2017, the Royal Commission’s Final Report was presented to the Governor-General detailing the culmination of a five year inquiry into institutional responses to child sexual abuse.
On 1 December 2018, NSW saw one of the largest overhauls of child sexual abuse legislation. Part of those changes included substantial reforms to s66EA of the Crimes Act.
The most notable changes are summarised below:
- The maximum penalty was significantly increased from 25 years to life.
- The changes were completely retrospective.
- The number of unlawful sexual acts needed to trigger the section was reduced from three to two.
The offence of Persistent Child Sexual Abuse used to carry a maximum penalty of 25 years imprisonment.
As a result of the 2018 amendments, the offence now carries life imprisonment.
The 2018 changes are retrospective which means that, unlike the sentencing regime in the UK and Victoria, if a person is sentenced for Persistent Child Sexual Abuse for abuse that occurred in the 1990s, then the maximum penalty to be applied is life imprisonment, not 25 years imprisonment.
The same goes for abuse that occurred before s66EA was ever introduced in NSW so long as the specific act was also against the law at the time. For example, it is possible for a person to be charged under s66EA for acts that occurred in the 1960s so long as there was a provision in the Crimes Act criminalising that specific act/s.
Having said that, it is important for Judges in NSW to bear in mind and consider the maximum penalty at the time of the offending conduct. That is, even though the relevant maximum penalty is now life imprisonment, the Judge must still take into account (but is not limited by) the maximum penalty during the period of time in which the unlawful sexual relationship existed.
The effects of the evolving legislation
The publicity surrounding the Royal Commission into Institutional Responses to Child Sexual Abuse has encouraged more victims and their families to come forward to police. For example, in 2012, the Child Abuse Squad arrested 455 people and laid 2,062 charges. In 2016, that increased to 770 arrests and 3,144 charges. In 2017, the arrests were estimated to exceed 800. As of 5 July 2019, the Royal Commission have made 2,575 referrals to authorities (including the police).
A person who has been convicted of an offence under s66EA will be subject to a Child Protection Registration Order for 15 years.
The rest of Australia
All jurisdictions in Australia have introduced offences to cover this particular type of offending conduct. In NSW, Victoria, and Western Australia, the offence is known as “persistent sexual abuse of a child” . In Queensland, Tasmania and the Australian Capital Territory, the offence is known as “maintaining a sexual relationship with a young person” . In the Northern Territory, it is known as “maintaining a relationship of a sexual nature” . Finally, in South Australia, it is known as the “persistent sexual exploitation of a child” .
2 s66EA(8) Crimes Act
3 Crimes Act 1900 (NSW) s 66EA; Crimes Act 1958 (VIC) s 47A; Criminal Code (WA) s 321A. See also Standing Committee of Attorneys-General, Model Criminal Code (1st edn, 2009) cl 5.2.14.
4 Criminal Code (QLD) s 229B; Criminal Code (TAS) s 125A; Crimes Act 1900 (ACT) s 56;
5 Criminal Code (NT) s 131A, maintaining a relationship of a sexual nature.
6 Criminal Law Consolidation Act 1935 (SA) s 50.