Why Victoria Needs to Change the Law to Better Protect Women
Although this section could be used to address ‘grab and drag’ actions, there is a gap within law between common assault and Section 42. As such, Section 42 should be expanded to capture, ‘grab and drag’ actions and allow for a high sentence, where it would be difficult to prove that the accused demonstrated sexual intent.
The Victorian Law Reform Commission should broaden the existing offence in Section 42 to include assault with intent to isolate to commit a criminal offence, as this would remove the difficulties associated with proving whether the accused presumed sexual intent and better protect women from violence.
The reason for this because the law as it stands does not do enough to capture ‘grab and drag’ acts that lead toward sexual assault without clear evidence of sexual intent.
Applying a Human Rights Framework
The Charter of Human Rights and Responsibilities Act 2006 (Vic) (The Charter), protects and promotes human rights in Victoria.
As human rights can be limited in situations where they are held to be proportional with the factors listed in Section 7(2) of the Charter, a proportionality test must be exercised to determine whether a human right may be reasonably limited.[1]
In general terms, no human right ‘trumps’ any other right – all are equally valuable (the principle of indivisibility) and should be protected together (the principle of interdependence).[2] Some rights are expressed as absolutes, such as the right to be free from slavery, torture, cruel or inhuman or degrading punishment or treatment, or arbitrary deprivation of life, and the right to recognition as a person in law.[3]
Subject to those absolutes, all rights must be balanced where they conflict to expand the practice of other rights to the highest possible extent, in ‘an atmosphere of mutual consideration’ and to make certain one right is not improperly superseded.[4]
An argument may be made that broadening Section 42 of the Crimes Act, 1958 (Vic), to include grab and drag actions, to simplify the process of establishing sexual intent, may conflict with the human right to be presumed innocent until proven guilty (The Right).[5]
However, it is reasonable for this right to be limited, as the purpose of the limitation relates to pressing and substantial social concerns for the need to improve the justice system’s response to sexual harm.[6] These concerns were prompted by the outcome of Director of Public Prosecutions (Vic) v Williams.[7]
In Williams’, the accused grabbed a woman as she was walking down the street, pulled her into an alleyway, covered her mouth and laid on top of her for approximately 20 seconds with his face close to hers.[8]
The accused was charged with assault with intent to commit a sexual offence under Section 42 of the Crimes Act 1958 (Vic) and common assault.[9] However, the accused was subsequently acquitted for the Section 42 charge as it could not be established that he intended that the complainant take part in the sexual act.[10]
In response to the inadequate outcome of Williams, a petition calling for an appeal, and later for a new grab and drag offence totalled 107,623 electronic signatures, with the media also covering the public’s response to the case.[11] There was a clear concern among the Victorian community that the laws and penalties applied to assaults that may lead to sexual offending did not adequately reflect the gravity of such conduct. [12]
As the public reaction to the inadequacy of Victoria’s current criminal law, indicated that the purpose of limiting The Right was for a pressing and substantial reason, it is arguable that this this would justify a greater limitation imposed on The Right.[13]
Additionally, criminalising certain conduct may be justified if it is serious and harmful enough for the public to recognise it as wrong, which appeared to be the case from the reaction of Williams.[14]
Furthermore, an additional justification for limiting The Right, is to protect women from discrimination. [15] Section 8(3) of the Charter states that every person is entitled to equal protection against discrimination. The General Recommendation No.19, the Committee on the Elimination of Discrimination against Women, asserted that violence against women is a form of discrimination.[16]
Additionally, gender-based violence has been recognised as a form sex discrimination, under Article 1 of the Convention on the Elimination of All Forms of Discrimination against Women, which inhibits a woman’s right to exercise her human rights and fundamental freedoms.[17] The prohibition of gender-based violence against women has also evolved into a principle of customary international law and is binding all states.[18]
Broadening Section 42 to include assault with intent to isolate to commit a criminal offence would remove the difficulties associated with proving whether the accused presumed sexual intent and would better protect women from violence.
However, for a Charter right to be limited, the purpose must also be ‘rationally connected to and carefully designed to achieve a legitimate end’.[19] We submit that the purpose of the limitation in expanding the scope of Section 42 to offer a greater legal protection to women is able to achieve this result as expanding the offence, may deter grab and drag acts,[20] to better protect women from violence.
Broadening the law would also address the issue of women’s safety in public places by making it easier to prosecute, convict and punish people who commit ‘grab and drag’ acts, by filling the gap within the law between common assault and Section 42.
As the change of Victoria’s grab and drag law was introduced to better protect women from sexual predators due to are current loophole in the law, highlighted by the outcome of Williams, in addition to the fact that violence against women continues to be one of the most prevalent human rights abuses in Australia, there may be no less restrictive means available to achieve the outcome to better protect women without the law being changed.
[1] Charter of Human Rights and Responsibilities Act, 2006 (Vic), s7(2) (The Charter).
[2] Australian Lawyers for Human Rights, ‘Status of Freedom of Religion or Belief’ (Online submission, 10 February 2017)<http://alhr.org.au/wp/wp-content/uploads/2018/02/ALHR-Submission-Final-17-02-10.pdf>.
[3] Ibid.
[4] Australian Lawyers for Human Rights, above n 2.
[5] The Charter S 25(1).
[6] Letter from Attorney-General (Vic) to Victorian Law Reform Commission, 26 November 2020.
[7] County Court of Victoria, Fox J, 18 November 2020 (Williams),
[8] DPP (Vic) v Williams (County Court of Victoria, Fox J, 18 November 2020) [73].
[9] DPP (Vic) v Williams (County Court of Victoria, Fox J, 18 November 2020) [87]–[89].
[10] Ibid.
[11] Emm Jones, ‘Keep Women Safe from Sexual Predators. Introduce a #GrabAndDrag Law’, Change.Org (Web Page).
[12] Letter from Attorney-General (Vic) to Victorian Law Reform Commission, 26 November 2020.
[13] PJB Melbourne Health (2011) 39 VR 373; [2011] VSC 327 [340]; Re Kracke and Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [145], citing R v Oakes [1986] 1 SRC 203, [69].
[14] Andrew Ashworth and Jeremy Horder, Principles of Criminal Law (Oxford University Press, 7th ed, 2013) 22
[15]Charter of Human Rights and Responsibilities Act, 2006 S 8(2).
[16] United Nations Human Rights Office of the High Commissioner, ‘Violence Against Women’ (Web Page, 1996-2021)<https://www.ohchr.org/en/issues/women/wrgs/pages/vaw.aspx>.
[17] Australian Human Rights Commission, ‘Violence Against Women’ (Web Page, 25 November 2014)<https://humanrights.gov.au/our-work/sex-discrimination/projects/violence-against-women#fnB3>.
[18] United Nations Human Rights Office of the High Commissioner, above n 16.
[19] PJB v Melbourne Health (2011) 39 VR 373; 1; [2009] VCAT 646 [153]. S 7(2)(d) Charter of Human Rights and Responsibilities Act, 2006 (Vic).
[20] Andrew Ashworth and Jeremy Horder, Principles of Criminal Law (Oxford University Press, 7th ed, 2013) 22.
