Discriminatory sexual offence laws continue to impact the lives of many Commonwealth citizens, particularly affecting women, children, and LGBT people. These laws are at odds with international and regional human rights norms and domestic constitutional law. They undermine human rights and perpetuate violence, hate crimes and discrimination, and threaten the health and prosperity of entire societies. Several countries have however, made real progress in reforming their laws through either wholesale updating of criminal codes, allowing multiple issues to be tackled together, or through targeted reforms.
This series of case studies from the Human Dignity Trust highlights these recent examples. This case study focuses on the situation in Nauru. This case study is split into seven parts: background information about the country; the situation of sexual offences prior to reform; the drivers of reform; the reform process; key changes to sexual offences laws; the post-reform environment in the country; and, lessons learnt from the reform process.
In 2009, Nauru began a wholesale updating of its criminal code. This culminated in the enactment of the Crimes Act of 2016. This reform process took place with extensive international expertise and guidance. When Nauru began the process of review, the aim was to simplify, modernise and strengthen criminal offences in the country so that they met the interests and needs of Nauru’s developing society and the various facets of the criminal justice system. The reform entailed a comprehensive overhaul of Nauru’s criminal law, including its sexual offences laws.
In light of the country’s political history- as a German, British, Australian and New Zealand colony and a Australian protectorate until 20th century- Nauru’s criminal law (including its sexual offences provisions) largely reflected the approach taken by its former colonial and administrative power. Nauru’s sexual offences legislation was largely based on the Queensland Criminal Code 1899. The Criminal Code was generally seen as an inherited set of archaic provisions that did not accord with human rights and was ill-equipped for modern interpretation and the prosecution of sexual offences.
The Crimes Act 2016 sought to encompass all forms of sexual violations with appropriate penalties, sufficiently graded in terms of their seriousness and determined on the basis of the severity of the impact on the victim rather than conceptions of morality and decency. The Crimes Acts 2016 sought to reflect this legal framework by instituting general neutral language, widening the definitions of sexual assault to include non-penile penetrative violations, incorporating aggravating circumstances and contextual factors, and removing the archaic language entrenched in morality. The Crimes Act 2016 also incorporated a statutory definition of consent by requiring ‘free and voluntary agreement’ and providing for a list of circumstances in which consent does not exist.
The case study identifies four lessons learnt in the sexual offences reform process in Nauru: the value of international cooperation and technical assistances; the necessity for constructive engagement with the public and stakeholders; implementation programmes must be created alongside legislation; and, monitoring and evaluation of legislation is essential.