The comments in this paper are on the Model Criminal Code, Chapter 5, Sexual Offences Against The Person, Discussion Paper, prepared by the Officers Committee of the Standing Committee of Attorneys-General.
The underlying philosophical basis of the Discussion Paper is fatally flawed. There are two fundamental weakness which distort the entire discussion Paper. They are: (1) the attitude to the existing common law methodology and (2) the hostility to religion and morality.
The bias against the common law methodology
The submissions are critical of the philosophy and methodology of the common law and seeks to provide a new basis. There are weaknesses in the common law philosophy and methodology. Any legal system will have weaknesses. No legal principles can be applied to every conceivable situation. The suggested reforms are counter productive. The reforms will lead to many more problems than which exist under a system based on the common law methodology and philosophy. Necessary amendments to suit modern conditions based on the existing system is a far better way forward. This system, despite imperfections has worked better than any system which the world has known. The Committee proposals involve throwing the baby out with the bath water and replacement with suggestions which border on or sometimes are beyond the idiotic.
The accumulated experience of the past is discarded in many areas. A new act has been drafted. The draft is likely to create great uncertainty. Law reform (so called) consequent to the problems of existing law, provides new provisions. These provisions invariably create more problems than the law which was replaced. There is little doubt that the provisions of this Code are so vague that it will lead to endless litigation. An example is provided from the report.
8.2 Intoxication (offences involving basic intent)
Evidence of self-induced intoxication cannot be considered in determining whether a fault element of basic intent existed.
A fault element of basic intent is a fault element of intention for a physical element that consists only of conduct.
Note: A fault element of intention with respect to a circumstance is not a fault element of basic element. p.202 of Chapter 5.
This is plain unmitigated gobbledygook; it is a recipe for uncertainty.
The existing law with all its faults has an accumulated body of case law. A new beginning is to be made with sections which generate great uncertainty.
The comments of the Discussion Paper on rape are laughable, if the subject were not so important.
The modern emphasis is not upon the protection of virginity, the risk of pregnancy, or the defilement of another man's wife or daughter, but rather upon providing the appropriate level of protection for the sexual autonomy of women and men. On that basis, there is no justification for drawing the distinctions which were involved in the common law of rape. (p. 19 of Chapter 5.)
What is "providing the appropriate level of protection for the sexual autonomy of women and men". This is gobbledygook. It is subversive nonsense. It is a crime that tax payer's money is spent on preparation of such proposals.
The basis of the law must be protection against violence, protection of a woman from being forced into a very intimate and private act, protection against forced sex, protection against defilement in a most intimate area, protection of the most important of all relationships (if one exists in a particular situation of rape), protection of virginity (if the raped person is a virgin) and the protection against unwanted pregnancy.
The bias against morality
The underlying philosophy of the Discussion Paper is reflected in the following comment:
Laws should reflect social need, not moral repugnance. Unless there are pressing reasons to do so, it is futile to try and stop activities which are bound to continue and upon which the community is divided... Where the moral issue is one upon which there is room for seriously divergent opinions, the legislature should therefore interfere to the extent necessary to protect the community, or any individuals with special needs. Generally those who take part voluntarily in activities some consider morally repugnant should not be the concern of the legislature unless they are so young and defenceless that their involvement is not truly voluntary.( p. 9 of Chapter 5.)
Page 9 of chapter 5: The first sentence says "laws should reflect social needs not moral repugnance". This shows a clear bias of the committee. The committee seem to think of morality as leading to repugnance. This is clearly the committee's biased perspective. The basis of religious morality is not repugnance, it is right and justice.
The committee is living in cuckoo land if it believes that there can be law without morality. What the committee apparently is against is not morality (which is about standards of right and wrong) but religious morality. The committee sets up its own morality in the report. Morality is about what is right and wrong. The members of the committee are rejecting religious morality. They are putting up their own version of morality. They do this in a devious way, without recognising that they are replacing one set of morality with another. A pervading influence in the Committee's work is the repugnance which is felt towards religious morality. This makes the work of the Committee repugnant to common sense, wisdom and human progress.
The following is an extract from L J M Cooray,The Case for Morality (shortly to be published).
All government and law are underpinned by morality or selfish and evil designs. Historically Australian common law inherited from Britain was based on biblical morality. It is different today.
Morality includes values such as honesty, the pursuit of truth, keeping one's word and promises, responsibility, duty, integrity in interpersonal relations, concern for immediate neighbours, respect for property, loyalty, marriage and family integrity and responsibilities, chastity outside marriage and the work ethic.
The emphasis is upon the duty and responsibility of the individual. No society can function efficiently or humanely and no civilisation can endure without these values. The failure to assume responsibility for one's actions and the tendency to look to the government for everything are among the consequences of the break down of traditional morality.
It bears emphasis that Christian morality (the moral code of the Bible) is accepted by many who are not Christians. The Christian moral code is very similar to the Jewish, Buddhist, Hindu, Muslim morality and is also accepted by those with no religion. There is a code of morality which is common to many religions and which is accepted by some humanists.
Keep morality out of law and politics is a deceptive slogan. Many who use it want to get religious morality out of law and politics and substitute their own version of morality, political or philosophical agendas or evil designs.
Can people claim that law should be based on morality in this time and age. There are persuasive arguments to support such a claim.
First, the values which underlie the inherited common law are derived from Christian morality. The principles of morality are common to all religions (as is apparent from an examination of the above description of morality). These values enjoy widespread popular support. They are attacked by a tiny minority in media, education and politics.
Second, if law is not based on a moral value, or the whims and fancies of a dictator, on what can it be based?
Liberals, socialists and Marxists and all who campaign for rights for women, abortion on demand, homosexuals, trade unionists, business people, consumers, Aborigines, minorities or any sector of society all have their own version of what is right and wrong. This is in reality a statement of morality. Why is it unacceptable for religious people to claim that their morality should be the basis of law, but quite permissible for adherents to political ideologies or for pro-abortion, peace, feminist, environmentalist, consumer, homosexual and other groups to put forward their views of right and wrong (morality) as the basis of law?
Ask the question of those who argue that morality has no place in politics, and no one will provide a credible answer. [see the sanity test] Silence, changing the subject, saying something totally unrelated or slogans (old fashioned, reactionary) are the common responses.
No law is ever made in a moral vacuum. If law is not based on morality, on what can it be based? There is no justification for any law which is not based on a moral or ethical value. Those are those who argue that morality must be exorcised from law and society. But at the same time they are arguing for new laws based on their preferred particular moral base. They are guilty of double standards. The opponents of traditional morality are committed to another morality or other moralities based on relativism, secular humanism, liberalism, socialism, permissiveness, situational ethics, an anti-moralism, anti-Christianityism, rights for minorities, rights for "you name it", or material equality and distributive justice enforced through law.
Thirdly, 70 per cent of the people of Australia regard themselves as Christians according to the census statistics. There are people of other religions who also recognise the importance of morality. If Australia is a representative democracy this requires that the voice of such persons be heeded. They have a right to a decisive voice in public affairs.
It is falsely argued that moral values are outdated. This is false. Christian values embody eternal truths which have attempted to follow over the years.
Moral values have been followed by other civilisations. Roman civilisation at the height of its fame and prosperity recognised the importance of basic moral values. The decline and fall of the Roman Empire is associated by historians with the spread of immorality and the over-reaching power of government.
"The Australian, March 3, 1988 quotes a values study in which the majority trend calls for the return to traditional family values and structures. The journalist's comments were that "It seems they are going back to a rosy time that people seem to think existed. What they want is, I suppose, a sort of pipe dream".
This is an oversimplification and misrepresentation. The answer is not that biblical principles will lead to Utopia ["but their absence leads to hell on earth"]; but that they offer a firmer basis for dealing with the problems of life than the values which have underpinned modern age law and social reform.
This is not to deny that changes are necessary. The problem with modern social and law reform is that it has not proceeded on an understanding of the real value and worth of moral values. Much of modern reform has been counter productive for a variety of reasons. The most important reason is the turning away from moral values. ["see the retreat from reason"]
The common law developed on the basis of morality has been attacked and fundamentally changed, rather than creatively adapted and developed to meet the emerging and genuine problems of modern life. There are eternal values which must form the core of any civilisation". [see Civilization defined"]
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