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Bondage, sadomasochism and crimINAL LAW australia

The existence of sadomasochistic sexual practices has puzzled, shocked and fascinated legal and forensic scholars for decades.

Ever since the German psychiatrist Richard von Krafft-Ebing introduced the terms “Sadism” and “Masochism”‘ into medical terminology in the late 19th century, this ‘deviant’ sexual interest has led to a flurry of critical discourse.

For some, sadomasochist desire and practice, and the related ‘kinks’ of bondage and dominant/submissive play, reflect the underlying psychology of gendered violence. For others, they are merely a harmless part of sexual diversity.

The following outlines the psychiatric categorisation of BDSM, its forensic relevance and how the courts have tried contain the boundaries of deviant desire.

BDSM: Illness or Kink?

The categorisation of harmful sexual desires within psychiatric literature is a contentious issue.

Some argue that the categorisation of ‘abnormal’ sexual desire – known as a ‘paraphilia’ – is an inherently moralistic practice. Whilst others argue paraphilias are helpful constructs in order to distinguish harmful and healthy sexual desires and practices.

The DSM-V contains diagnoses for ‘sexual sadism disorder’ as well as ‘sexual masochism disorder’. To diagnose a paraphilic disorder there must both be the paraphilia and some distress or impairment to the individual or harm to others.

The paraphilia of sexual sadism is defined as intense feelings of sexual excitement when fantasising about or witnessing another individual undergoing physical or psychological pain.

The paraphilia of sexual masochism is defined as recurrent intense fantasies, urges, or behaviours involving real acts of receiving extreme physical pain, torture, or humiliation for sexual arousal.

Neither diagnosis makes a distinction between consenting or non-consenting partners as the object of desire. The forensic literature is more robust in this sense, in that the interest in a non-consenting victim usually forms part of the conceptualisation of ‘sexual sadism’.

The DSM-V diagnosis does note that the existence of an ‘abnormal desire’ like sexual sadism or sexual masochism does not in itself constitute a disorder.

Nevertheless, many have argued that the DSM-V pathologises normal sexual desire. For example, the DSM-V defines a paraphilia generally as:

[I]ntense and persistent sexual interest other than sexual interest in genital stimulation or preparatory fondling with phenotypically normal, physically mature, consenting human partners

As critics such as sexologist Dr Ray Blanchard have pointed out “at first glance, this definition seems to label everything outside a very narrow range of sexual behaviors as paraphilic”.

Indeed, many have pointed out that sadomasochistic desire is far from ‘abnormal’ within the population.

A recent study of the general Belgian population found that 46.8% of the general population had engaged in BDSM-themed activities at least once, with 12.5% doing so on a regular basis.

One Australian study found that 1.8% of sexually active people (2.2% men and 1.3% women) had engaged in BDSM activity in the previous year. This study didn’t find any significant differences between people who undertook BDSM and the general population.

Fantasies about sadomasochism are even higher. One study of Canadian students found that:

  • 72% of the men and 59% of the women had had fantasies of being tied up.
  • 65% of the men and 58% of the women had fantasies of tying up a partner.
  • 60% of the men and 31% of the women indicated positive thoughts of whipping or spanking someone.

One online study found about half of participants preferred unequal power dynamics in their sexual relationship. Of these:

  • 13.8% men and 20.5% women preferred a dominant partner; whilst
  • 36.6% men and 19.8% women preferred a submissive partner.

Complicating this area is the prevalence of literature documenting “rape fantasies” amongst men and women.

The existence of a “rape fantasy” could include a desire for power imbalance, bondage or other form of consensual BDSM play, or it could be a fantasy of forcible sexual violence without consent.

Early research into the US general male population found that 39% of men have had fantasies of “tying up” and 30% of “raping a woman.” Moreover, a 2009 study of female undergraduate students found that 62% of women have had a rape fantasy.

Overall, the literature doesn’t support treating BDSM practitioners as ‘abnormal’ members of the community.

Sexual Sadism and Offending

Naturally, having a notable proportion of the general population sexually aroused by inflicting pain or being in a dominant position raises concerns of sexual violence.

On this, the literature is far from straightforward.

Although sexual sadism is a commonly cited factor in the psychopathology literature on rape and sexual murder, the rates of sexual sadism diagnosis amongst sexual aggressors and murderers is lower than expected.

In one study of Canadian offenders only 7.9% of sexual aggressors and 16.7% of sexual murderers met the criteria for sexual sadism.

Sexual sadism is certainly a dispositional factor in some offending, but there appears to be more than mere sexual arousal motivating sexual aggressors.

Most sex offenders are motivated by immediate sexual gratification, without consideration of, or a callousness towards, consent. Only rarely does this incorporate a sadistic motivation.

Sadistic sexual offenders are more likely to prefer pornography deemed ‘violent’ which could include sadomasochist pornography.  However, attempts to tie sadomasochistic pornography use to future offending are questionable. A number of reviews have found that sex offenders consume less pornography than the general population.

Most research points to factors beyond mere fantasy as motivating offending.

Sadistic sexual offenders are more likely to have been exposed to physical and psychological violence as well as alcohol abuse during childhood and adolescence. They also tend to be motivated by a fear of being humiliated, criticised, or rejected by others.

Furthermore, sadistic sexual offenders have high rates of diagnoses of anti-social and borderline personality disorders.

Most studies find comparable rates of psychopathology amongst BDSM practitioners to the general population, making them unlikely to be a group at high risk of offending.

There are also many factors within the formalised BDSM scene which mean practitioners are less likely to become offenders.

BDSM activities carry an increased risk of injury, sexual assault and death than other sexual activities. Because of this, sadomasochistic communities implement a number of safe practices which limit harm and ensure affirmative consent.

This formalised education on consent has flow on effects on the attitudes of practitioners. For example, participants in formalised BDSM communities have lower rates of sexism and rape myth acceptance than the general population.

It should noted that formal engagement in the BDSM ‘scene’ exists on a spectrum. This means that we shouldn’t assume positive results of BDSM ‘enthusiasts’ involved in the scene reflects all those who practice BDSM.

Nevertheless, there is very little evidence to support a direct line of causation between participation in BDSM activities and sexual offending.

You Can’t Consent To This

The criminal law generally looks poorly upon the infliction of injury for sexual purposes even if it is consensual.

In the infamous case of R v Brown [1993] UKHL 19, genital torture, branding and bloodletting by a group of men was found to constitute the charges of malicious wounding and actual bodily harm, despite consent by all those involved.

Although a UK case, this remains very influential on Australia law in cases occasioning death and actual bodily harm. A few examples of people convicted for consensual BDSM:

  • In R v Stein placing a handkerchief in a man’s mouth which resulted in his death by suffocation still constituted manslaughter even though the man consented.
  • In R v McIntosh, pulling too hard and for too long on a rope as part of consensual breath play was enough for a manslaughter charge.
  • In Q v Jean Margaret Meiers, a woman was convicted of manslaughter for binding her husband to veranda pole and gagging him on his insistence, which resulted in his death by suffocation.

The Brown reasoning has been stronger in non-code Australian jurisdictions such as New South Wales and Victoria which haven’t developed comprehensive offence definitions dealing with consent to harm.

For example, Queensland recently implemented a stand alone strangulation offence, which provides the ability to consent to strangulation.

However, all jurisdictions leave open the possibility that death from a consensual BDSM act could constitute manslaughter.

The topic of consensual BDSM causing death has recently provoked controversy in the UK.

There is a belief amongst some advocates that “rough sex gone wrong” arguments are frequently being used in UK criminal courts as a “defence” to homicide in circumstances of domestic violence.

The Domestic Abuse Bill currently before UK parliament wishes to explicitly remove the ability to argue consent to serious harm for sexual gratification in cases of serious harm. This appears to reflect the common law in the UK.

Upon a quick survey of Australian cases, claims that the victim consented to the assault or injury as part of sadomasochistic act aren’t common. In situations they have been raised, they have been readily dismissed (see McGrory v R [2018] NSWCCA 226).

One area that the law has yet to tackle are claims of domestic violence within ‘full time’ dom/sub relationships.

Going ‘full time’ in the BDSM community means moving beyond session based role play of dominant and submissive roles, to incorporating such roles in everyday life.

Examples of ‘full time’ dom/sub interactions could include acting as a domestic servant for a dominant, as well as following the dominant’s various commands throughout the day.

Many of these actions would appear at first glance to constitute what domestic violence theorists call ‘coercive control’ – where actions are taken by one partner to strip the other of their autonomy.

There are strong calls to implement specific criminal laws to deal with coercive control in Australia. It is currently unclear whether this will inadvertently cover consensual dom/sub relationships.


Overall, BDSM is a common fantasy and sexual practice undertaken by many people.

Although there are some indictions that for certain individuals fantasies of sexual sadism increase the risk of offending, for most sexual sadists their desires are fulfilled through consensual sex acts.

The law generally takes a negative view of BDSM sexual acts, criminalising many forms of consensual BDSM activity.

With increasing concern towards domestic and intimate-partner violence it appears likely that consensual BDSM will be further criminalised.

Australian Social Policy Quiz Answers

What would do the most to reduce illicit drug-related deaths in Australia?

  • Decriminalisation of currently illicit drugs

It is near universally accepted within the alcohol and drug sector that criminalisation of currently illicit drugs is a major barrier to harm reduction interventions and health management of drug-related issues.

Which of the following should be a priority to help reduce family violence?

  • Increased research and evaluation of programs currently being used to reduce family violence

Despite being viewed as a political priority very little is known about what interventions are most effective in reducing family violence. Limitations of current programs – including gendered analysis approaches – are explored here.

Which of the following interventions is most likely to ‘close the gap’ of life expectancy between Aboriginal and Torres Strait Islander and non-Aboriginal and Torres Strait Islander Australians?

  • Setting clear targets for housing of Aboriginal and Torres Strait Islander people

 The Close the Gap Steering Committee has made it very clear that access to housing is one of the key priorities to closing the gap in life expectancy.

Which of the following interventions is most likely to reduce the rate of youth suicides in Australia?

  • Funding more school-based programs to teach emotional intelligence and resilience skills to young people

Of all the proposals for suicide prevention, school-based programs have the most evidence behind them. However, not all school-based programs are created equal. We need to ensure schools are using evidence-based programs which build protective skills in young people.

Has Forensic Science Improved?

It has been a decade since the US National Research Council produced a damning report on the state of forensic science in the US (and by extension the international community). As such, it is worth asking: has forensic science improved?

The report made a myriad of findings in regard to the forensic science community, including that:

  1. Criminal laboratories lacked clear standards across jurisdictions.
  2. Forensic practitioners had inconsistent accreditation requirements across jurisdictions.
  3. Many forensic techniques raised issues of interpretation. Some methodologies (such as DNA analysis) were capable of expression statistically whilst others (such as blood splatter analysis) were up to expert interpretation.
  4. Many forensic techniques were under researched with little evidence establishing reliability as well a little understanding of the limits and measures of performance of techniques.
  5. Criminal laboratories were under resourced and under staffed. This issue gave rise to perceptions that labs were under political sway to ‘produce’ for prosecutors.

The most damning aspect of the report was the suggestion that many forensic techniques currently being used in criminal prosecutions may not be reliable. Some of the biggest causes for concern were comparative techniques subject to contextual bias such as fingerprint comparison, striation analysis (toolmark, ballistics etc), microscopic hair analysis and bitemark analysis.

So, after ten years – has the evidence base improved?

In regard to fingerprint comparison, several studies have been conducted to determine the extent to which cognitive bias can impact analysis. However, many of these studies have suffered from a lack of ‘real world’ scenarios.

Nevertheless, the National Institute of Standards and Technology have developed a variety of protocols and standards which limit the likelihood of human error. Moreover, technology is greatly improving the ability to conduct fingerprint comparisons without expert interpretation.

Striation analysis remains more of an art than a science. There have been a few attempts to understand contextual bias in striation analysis (mostly in regard to ballistics). There have also been attempts to express comparisons statistically.  Nevertheless, more research is needed in this area.

Comparative hair analysis (as opposed to toxicological hair analysis) remains under-researched and poorly understood. My attempt at finding any comprehensive evaluation of the technique turned up no results. However, this may be due to the fact that the increasing effectiveness of DNA analysis has rendered the technique largely irrelevant.

The real failure in the years following the report is bite mark analysis, with study after study after study showing the unreliability of the technique for forensic identification. This includes very obvious errors in the techniques usedinconsistencies in the approach of practitioners and a very real risk of contextual bias.

So, has forensic science improved?

Somewhat. It is still incredibly worrying that all of the techniques above remain admissible in most criminal jurisdictions globally, without sufficient legal scrutiny. This is particularly worrying in the cases of bite mark analysis, which has been identified as a possible source of wrongful convictions.

The standards and regulation of forensic labs has also recently been raised as a cause for a concern. Last year, a UK forensic toxicology lab was a cause of incredible controversy due to alleged data manipulation by employees.

If the forensic community wishes to ensure its legitimacy within the legal system there must be a consistent and very high standard for the evidence base of forensic techniques used.

“Cleaning Up the Place” – On Sex Work and Serial Killers

It was 2:30am and Mary Ann Nichols was working late on a narrow road in London’s East End. An hour later her body was found. The road was White Chapel Road. Mary’s job? Selling sex. She is the first documented victim of Jack the Ripper.

It is unknown why the Ripper chose sex workers as his victims. However, he joins a long list of serial killers who target ‘ladies of the night’ to satisfy their sadistic desires.

A hundred years later, Peter Sutcliffe – the Yorkshire Ripper – would kill thirteen women in what he saw as a mission from God to cleanse the world from damned whores. “The women I killed were filth” Sutcliffe said, “I was just cleaning up the place a bit.”

At present, the Long Island serial killer remains at large after killing over a dozen sex workers in the Gilgo Beach area. The killer is believed to have met many of his young female victims via advertisements for escort services on Craigslist. The age of serial killers targeting prostitutes is far from over.

Easy Targets

It is well documented that sex workers have a much higher risk of homicide than the general population. Street based workers are twelve times more likely to get murdered than other women.

Why serial killers target sex workers is likely to have a myriad of answers, both individual and cultural.

For Gary Ridgeway, The Green River killer, the motivation was at least partly opportunistic. “[I] picked prostitutes as victims because they were easy to pick up, without being noticed” he said. “I knew they would not be reported missing right away, and might never be reported missing”.

In contrast, Steven Write – the Ipswitch murderer – appeared largely motivated by his sexual fetish for strangulation. Sex workers were his victim of choice largely due to the intimate nature of their work and the level of trust they placed in their clientele.

Forensic psychologist Anthony Beech has noted that sexually motivated killers tend to view male sexual desire as uncontrollable and to project sexual anxieties around women onto their victims. Sex workers, who are culturally stereotyped as sexually assertive, are likely to be seen as particularly threatening to this worldview.

Predatory killers also view sex workers as easy targets separated from the herd. Social stigma leaves some workers isolated from family and friends, meaning that investigators are slow to identify victims and killers can add several notches to their belt before arrest.

Occupational Hazard

Poor relationships between workers and the criminal justice system also severely hinder investigations.

A West Midlands Magistrate once infamously summed up the life of victim Gail Henderson, who was murdered by a client, by stating “And then the silly girl went and got herself murdered”. Quotes like these hardly build trust in the system.

Distrust in authorities mean those in the sex industry – particularly street based sex workers – are reluctant to share information with police. This is made even worse when sex work is criminalised and divulging information leaves workers at risk of prosecution. Many sex workers and pimps suspected Ridgeway as being the Green River Killer, but were too scared to report this information to police. As a result, Ridgeway took at least forty-nine lives.

A perception that murder is an unfortunate ‘occupational hazard’ of street-based sex work also does little to bridge barriers. In 2011, St. Francis County sheriff Bobby May reportedly said in relation to the murder of 25-year-old sex worker Marcal Camero Tye that “[y]ou know, prostitutes, these types of folks—it’s a risk. Whenever you’re soliciting, things of this nature happen sometimes.”

Time for Change

Although fault for the crimes of Ridgeway, Sutcliffe and Writer clearly lie with the perpetrators, the vulnerability of sex workers to violence has a more social origin –and therefore is a shared responsibility.

“There really are people who don’t care when prostitutes are victims of hate crimes, beaten, raped, and murdered” notes sex worker and activist Annie Sprinkle. “[But] no matter what you think about sex workers and the politics surrounding them, sex workers are a part of our neighbourhoods, communities and families.”

One hope’s the lessons of the past can be learned. Only through cooperation and shared understanding will potential victims be protected. With the Long Island serial killer still on the loose it is time for law enforcement and society to rally behind sex workers. It is time for no more ‘easy targets’.

Are Sudanese Offenders ‘Unique’?

Much has been written about the overrepresentation of Sudanese communities within Victorian crime statistics, but not a lot has been written about why that may be the case.

For the record: individuals born in Sudan and South Sudan committed 1.1 per cent of offences in Victoria in 2017/18, despite the fact that the Sudanese community compromises only 0.13 per cent of the Victorian population.

This is an overrepresentation, but why?

Firstly, Sudanese migrants shift disproportionately younger – 42 per cent are under the age of 25 compared to 30 per cent of the general Australian population.

Younger men (particularly those aged between 18 – 25) are more likely to commit crimes. There is a sweet spot where a lack of supervision meets peak testosterone and peak stupid.

These younger offenders also tend to commit offences which are attention-seeking, public and gregarious – meaning they are more likely to get caught (Cunneen & White 2007).

Break and enters and drunken brawls are pretty consistent with what we would expect from a young male demographic (and this is what we see with Sudanese offenders). It should also be noted that generally, the most likely victims of youth offending, are other young people.

Sudanese migrants are more likely to be unemployed than other migrant groups, and this also plays a role.

Unemployed young men are a recipe for disaster in terms of risk of offending. Monotonous boredom leads to “thrill seeking” behaviour, substance use and – inevitably – crime.

Finally, given the tendency of migrant populations to live and socialise with one another, there is a risk of a ‘peer contagion’ to also play a role. Basically, if all your friends are doing crime – why not? 

All of the above risk factors likely also play a role in the risk of children of parents from Sudan, which we have no firm statistics on but anecdotally  appear to potentially also be overrepresented.

Despite all of this, nothing about the risk profile of Sudanese migrants (and, presumably, their children) is a cause for too much concern. Offending by Sudanese populations in Victoria is certainly not a “crime wave”, nor is there any evidence of actual gangs existing in these communities.

The great thing about youth offenders is that most of them grow out of it without the need for much targeted interventions. Appropriate diversion options for young offenders are also very effective.

In the meantime, there is a need for targeted evaluations in communities at risk to  identify, develop and implement local solutions addressing economic and social determinants and risk factors behind offending.

Are Sudanese offenders in Victoria unique? Not really.

Realistic Interventions to Reduce Violent Crime

Despite widespread talk about ‘African gangs’ and ‘crime waves’  – violence in Australia is a relatively rare phenomena.

Conflict is a fact of life, yet we do a pretty good job in keeping homicide, assault and sexual offences to a minimum. Nevertheless, there are some evidence-based solutions that can assist in reducing violence even further.

Intervening Early

It should come as no surprise that the most successful interventions to change anti-social and violent behaviour occur in young people. Getting at-risk individuals whilst they are still wrestling with their identity is an ideal time to change course in life.

Violent behaviour in young people can be caused by a variety of individual factors including childhood trauma, mental health issues, poor parenting or simply the toxic mix of hormones and boredom.

Effective interventions for anti-social young people include social competency training, criminal justice diversion programs and programs designed to keep young people in school. These programs are most effective if they take into account the multiple influences that could cause a young person to act out violently, rather than looking for ‘silver bullets’ designed to turn them around.

Key to reducing violent offending in young men is addressing issues of anger and impulse control. One of the most effective therapeutic interventions for at-risk young men is to teach them emotional regulation and the ability to ‘stop and think’ before acting violently.

Challenging Backwards Norms

Whilst overall crime rates have demonstrated a gradual decrease over time, one type of offending has remained steady in Australia: family violence.

One of the key explanations for the lack of effective responses to family violence in Australia is the impact of social norms which reinforce risk factors for offending. This doesn’t mean that family violence is acceptable in Australia, but that certain toxic norms which correlate with family violence are accepted amongst a significant part of the population.

These norms include a belief that men should be the primary decision-makers within a relationship, that a woman’s main priority should be child rearing as well as a general support for strict gender roles for men and women.

Having traditional views regarding gender does not automatically mean someone will act out violently, but accepting these norms is correlated with family violence for already at-risk male populations.

Challenging gender norms is no easy task, and is most effective in young people. Worryingly, some have suggested that challenging accepted gender norms in even young adults can actually risk a ‘backfire effect’ making people more likely to offend.

Overall, it is too early to tell whether interventions designed to challenge gender norms will have the intended cultural effect of causing a decline in family violence in Australia.

Limiting Prison to the ‘Worst of the Worst’

Violent crime is often committed by a small group of serial offenders. Contrary to current political thinking, locking up violent offenders is the least effective mechanism for behaviour change.

Gradually, research is beginning to show that prison is criminogenic:  going to prison actually increases recidivism risk for offenders.

Offenders who are incarcerated are more likely to develop behavioural and mental health problems, putting them at a higher risk of reoffending. This is particularly the case for Aboriginal and Torres Strait Islander offenders.

We should be reserving prison for the ‘worst of the worst’ and instead explore expanding the variety of community-based orders for offenders.

Community-based orders have proven to be very effective in reducing recidivism and are the best means to provide tailored rehabilitation programs.

Being Honest About Drugs and Alcohol

Intoxication is a key factor in violent crime. Although the relationship between substance use and violence is complicated, amongst high risk individuals, alcohol and drug use clearly play a role in offending.

Current solutions to address the relationship between substance use and violence are rather blunt.

Lock-out laws effectively reduce rates of assault by ensuring at-risk patrons do not become too intoxicated and are less likely to encounter conflict.  Moreover criminal laws on possession and use of illicit drugs attempt to reduce consumption of substances within the community, but with limited success.

Like with everything else in crime prevention, the most effective interventions need to happen early. This includes teaching young people about the effect of alcohol on behaviour as well as instilling a culture that supports individuals not drinking in order to avoid becoming violent.

Harm reduction interventions for people who use illicit drugs are also likely to prove effective. For example, the relationship between methamphetamine use and aggression is highly dose dependent. Educating users on how to better manage their dosage is likely to prove effective in reducing methamphetamine related violence.

Ultimately, we will never live in a society free from the darker side of man’s nature. However, there are things that we can do to try to decrease our crime rates further.

Rather than falling for sensationalist panic about violent crime, we should be encouraging our political leaders to implement evidence-based solutions to reduce the rates of violent crime in the community.

Expanding Police Powers Should Be A Concern for All Australians

Increasingly, the expansion of police powers is becoming the norm in Australia with procedural protections and civil liberties tossed aside as inconvenient obstacles to criminal prosecution.

This week the Andrews government announced plans to remove the need for consent or court approval when taking DNA samples from suspects of serious crime or individuals in custody. This move follows similar changes in NSW, South Australia and Western Australia.

Earlier this month, NSW police implemented a bizarre policy of turning away festival-goers who received a positive sniffer dog response even when not found in the possession of drugs.  Meanwhile, Tasmania is looking to implement draconian anti-consorting laws (literally banning clothing colours) following highly contentious attempts in NSW and Queensland.

All of the above announcements are a drop in the ocean given the overwhelming political tide toward the removal of procedural protections and hypercriminalisation in Australia.

Such moves are driven by the lobbying power of police unions and the media’s increasing tendency toward exaggeration and penal populist rhetoric. Moreover, human rights organisations and law societies share some of the blame –  proving unreliably complacent on the civil rights of criminal suspects and prisoners.

Academic research demonstrates that a lack of oversight and procedural protections increase the risk of police misconduct and human rights abuses.

Moreover, Australia’s tendency toward criminalisation and punitive justice runs contrary to decades of research finding unnecessary imprisonment (particularly of young people) increases recidivism risk and societal harm.

American journalist H.L Menken once said that “the trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels”, however this defence is necessary to protect against encroachment by the carceral state.

Civil libertarians and human rights advocates need to stand united against  increasing police powers at home and to stand up for the civil liberties of all Australians.

Could the UK “Nazi Pug” Case Happen in Australia?

Earlier this week Mark Meechan, a 30 year old YouTuber in the UK, was fined £800 following his conviction under s127 of the Communications Act 2003. The Act provides a criminal offence for sending “by means of a public electronic communications network a message that is grossly offensive or of an indecent, obscene or menacing character”.

What was the offensive message? In 2016 Meechan posted a video of his girlfriend’s pet pug showing the dog moving its paw in the air in a salute when prompted with the command “Sieg Heil”. The poor taste video went viral, garnering over 3 million views on YouTube.

Meechan’s conviction has proved incredibly controversial, with prominent civil liberties advocates calling for the repeal of s127 of the Communications Act 2003 on free speech grounds. Previous convictions under this offence have proven equally controversial.

However, could a similar criminal case arise in Australia given our current laws? It’s complicated, but possibly.

Racial and Religious Vilification Laws

In Australia, several laws attempt deal with “offensive speech” but very few provide a criminal offence for offensive conduct or messages.

Whilst there was much media fanfare over s18C of the Racial Discrimination Act 1975(Cth) following the Andrew Bolt and QUT Case, this provision does not criminalise speech.

State-based racial and religious vilification laws often contain criminal offences, however most are reserved for ‘serious’ forms of individual harassment rather than “offensive” verbal or written communications. For example, s20D of the Anti-Discrimination Act (NSW) states that:

(1) A person shall not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group by means which include:

(a) threatening physical harm towards, or towards any property of, the person or group of persons, or

(b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.

 The clear outlier is the Western Australian Criminal Code 1913 (WA), which has quite broad criminal offences dealing with racial hatred including:

  • Section 77 Conduct intended to incite racial animosity or racist harassment
  • Section 78 Conduct likely to incite racial animosity or racist harassment
  • Section 79 Possession of material for dissemination with intent to incite racial animosity or racist harassment
  • Section 80 Possession of material for dissemination that is likely to incite racial animosity or racist harassment
  • Section 80A Conduct intended to racially harass
  • Section 80B Conduct likely to racially harass
  • Section 80C Possession of material for display with intent to racially harass
  • Section 80D Possession of material for display that is likely to racially harass

However, there have been very few prosecutions under WA offences, likely because there are quite broad defences to the provisions under s80G.

Offensive Communications

The real equivalent to the UK offence is s474.17 of the Criminal Code 1995 (Cth), which provides a Federal offence for ‘using a carriage service to menace, harass or cause offence’.

To be found guilty of this offence, the degree of “offensiveness” must be “serious” [Monis v The Queen], a qualifier which hasn’t been further defined by the Courts.

The vast majority of cases prosecuted under s474.17 have been the result of direct harassment of individuals via social networks such as Facebook. At the time of writing I’m unable to find a case that is directly equivalent to the “Nazi Pug” case – involving public broadcast of controversial humour.

Overall, it does seem possible for a person to be convicted for an “offensive” joke in Australia broadcast online, however given the lack of similar cases it does not appear likely.

Are Home Invasions on the Rise in Victoria?

On last night’s Q&A program both Alan Tudge MP and Herald Sun editor Andrew Rule seemed to insinuate that home invasions were on the rise in Victoria. Let’s look at the statistics.

There is no offence category under Victorian Crime Stats for ‘home invasions’. However, the number of recorded criminal incidents for ‘Burglary/Break and Enter’ has remained steady.

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However, there does appear to be a gradual uptick in the number of residential aggravate burglaries, but not residential non-aggravated burglaries.

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There are a variety of reasons why this may be the case, including an increased use of weapons during home invasions.

When this is looked at in terms of rate of incidents per 100,000 population (a useful statistic to remove the impact of population growth), the rate of incidents is actually on the decline.

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However, the rate of residential aggravated burglary is  on the increase.

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The number of recorded offences (as opposed to incidents) doesn’t show any increase in the number of offences recorded for burglary / break and enter.

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However, again, residential aggravated burglary offences are increasing.

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So what’s the verdict?

Overall, there isn’t any indication that burglary / break and enter offences are on the rise.

However, there is an indication that residential aggravated burglary offences have increased somewhat. The reasons for this change are likely to do with the a change in the circumstances of offending, rather than an increase in overall crime.