Crimes Amendment (Drink and Food Spiking) Bill 2008
OBJECTIVES:
The Crimes Amendment (Drink and Food Spiking) Bill introduces a new summary for drink and food spiking, and modernises existing offences relevant to drink spiking to ensure that they apply to alcohol.
The objective of this Bill is to amend the Crimes Act 1900 so as:
(a) To create a new summary offence of spiking a person’s drink or food with an intoxicating substance intent to harm the person (a maximum penalty of 2 years imprisonment or $11,000 fine or both), and
(b) To ensure that other more serious related offences apply to the use of intoxicating substances (namely, using intoxicating substances to commit indictable offences, to endanger life, to inflict grievous bodily harm, or to injure or cause distress or pain).
The new offence is committed if:
(a) If the offender causes another person to be given or to consume drink or food containing an intoxicating substance (or more of any such substance than the other person would expect it to contain),
(b) The other person is not aware the drink or food contains the substance (or that quantity of the substance), and
(c) The accused intends the other person to be harmed by the consumption of the drink or food (including any impairment of the senses or understanding that the other person might reasonably be expected to object to in the circumstances).
Previously not specified was the term “intoxicating substance”, which is defined to include alcohol or a narcotic drug or any other substance that affects a person’s senses or understanding”.
COMMENTS:
WHAT IS DRINK AND FOOD SPINKING?
Drink spiking has gained considerable media coverage and interest. Instances of drink spiking most commonly reported in the media involve the addition of a ‘date rape drug’ (such as Rohypnol) to a drink (commonly an alcoholic drink) without the knowledge of the victim.
The aim of drink spiking is to induce an extremely inebriated state in the victim with the additional intention of taking sexual advantage of the victim or actually doing so. Such classes are at the most serious cases end of the drink-spiking continuum. Another situation that could still have serious consequences would involve the addition of extra alcohol in a known alcoholic drink as a ‘prank’ – to see the victim make a fool of themselves, for example.
The AIC (Australian Institute of Criminology) define drink-spiking as follows:
“Drink-spiking refers to drugs or alcohol being added to a drink (alcoholic or non-alcoholic) without the consent of the person consuming it. For an incident to be defined as drink spiking, it need not involve further criminal victimisation, even though such offences can occur after an incident of drink spiking.
Like drink-spiking, food-spiking has the potential for serious harm and consequence to the victim.
THE EXTENT OF DRINK SPIKING IN AUSTRALIA
Alcohol is the most common substance used to spike drinks, but prescription drugs, illicit drugs, and hypnotics are increasingly used. There is currently no way to determine the exact number of drink spiking incidents, which occur within the community. This is due to:
(a) High-levels of under-reporting,
(b) Fluctuations in reporting due to awareness campaigns,
(c) Jurisdictional differences in data recording and extraction procedures, and
(d) Difficulty in verifying whether a reported incident actually occurred.
According to the AIC report, between 1 July 2002 and 30 June 2003, it is roughly estimated that:
Between 3,000 and 4,000 suspected incidents of drink-spiking occurred in Australia,
Approximately one-third of these incidents involved sexual assault,
Between 60 and 70% of these incidents involved no additional victimisation, and
Between 15 and 19 suspected drink spiking incidents occurred per 100,000 persons in Australia during 2002/03.
There is no single ‘typical’ incident of drink spiking. Rather, drink spiking appears to be a complicated phenomenon which can occur in a variety of location, against a variety of victims, with a variety of different spiking additives, for a number of different reasons resulting in disparate effects and consequences.
Based on analyses of police data, sexual assault data and AIC hotline data it was found that:
4 out of 5 victims are female;
About half of drink spiking victims are aged under 24, while about one-third are aged between 25 and 34;
The majority of reported drink spiking incidents has associated criminal victimisation, indicating that ‘prank spiking’ may be a common motivation for drink spiking;
Between 20 and 30% of incidents reported to police involve sexual assault, while it is estimated that about one third of all drink-spiking incidents are associated with sexual assault,
About 5% of incidents involve robbery;
Two-thirds of suspected drink spiking incidents occur in licensed premises (although for sexual assault victims the location is equally likely to be at the victim or offender’s home or another location);
Many victims do not know who the offender was;
Where offenders can be identified, drink spiking can be identified, drink spoking can be perpetrated by strangers or known acquaintances, while incidents involving sexual assault are more likely to occur with a known offender;
Many victims experience memory loss after drink spiking;
Apprehension of offenders is very uncommon;
Forensic testing of blood and urine samples is relatively rare and does not conclusively prove that drink spiking has occurred; and
The vast majority of incidents of drink spiking are not reported to police.
REPORTING TO POLICE
It is estimated that less than 15% of suspected drink spiking sexual assaults are reported to police, and between 20 and 25% of suspected drink spiking non-sexual assault cases are reported to police. This means that the vast majority of suspected drink spiking incidents are not reported to police.
EFFECTS OF DRINK SPIKING
This is believed to be attributed to inexperienced or irresponsible consumption of alcohol, particularly by young people. Symptoms consistent with drink spiking, such as loss of memory, loss of consciousness, poor coordination, balance and impaired judgment are also associated with alcohol intoxication.
APPLICATION OF THE CRIMINAL LAW
There is currently no separate offence category in any Australian jurisdiction for the act of spiking someone’s drink per se. Rather, the use of criminal laws to prosecute drink spiking depends on:
The State/Territory in which the incident occurred,
The motivation of the person spiking the drink,
The type of substance used to spike the drink, and
The effects of the spiking.
This means that there is some degree of flexibility in how police within each jurisdiction records an incident of drink spiking and how courts may interpret the law in relation to such incidents.
Drink spiking resulting in serious harm, or with an intent to commit a further offence against the victim, is already criminalised under a range of State and Territory laws. It is important to note that these offences focus on the type of harm, rather than how the harm occurred. Although I congratulate the Government for identifying a gap in the law when it came to addressing the act of drink spiking itself, I believe it is long overdue and the legislation has been a long time coming. To date, only Western Australia, Queensland, and South Australia have introduced similar offences related to food and drink spiking.
EXAMINATION OF THE BILL
The present bill implements the model offence by inserting new section 38A into the Crimes Act. An offence under section 38A is committed if a person causes another person to be given or to consume drink or food containing an intoxicating substance, or more of any such substance than the other person would expect it to contain in circumstances where:
First, the other person is not aware the drink or food contains the substance, or that quantity of the substance; and,
Secondly, the person intends the other person to be harmed by the consumption of the drink or food.
For the purposes of section 38A, “harm” includes an impairment of the senses or understanding of a person that the person might reasonably be expected to object to in the circumstances. The term “impair” includes to further impair.
The term “intoxicating substance” is broadly defined to include “alcohol or a narcotic drug or any other substance that affects a person’s senses or understanding”. For the purposes of the proposed new section 38A, giving a person food or drink includes preparing the drink or food for the person or making it available for consumption by the person.
In keeping with the Model Criminal Law Officers Committee’s recommendation, the new offence carries a maximum penalty of two years imprisonment and/or 100 penalty units, which currently amounts to $11,000. That penalty is appropriate considering that the offence is at the lower end of the drink-spiking continuum, and fits within the tiered penalty structure currently applying to the more serious drink-spiking offences in the Crimes Act.
Under proposed new section 38A, two defences are available. Firstly, it will be a defence where the person had reasonable cause to believe that each person who was likely to consume the drink or food would not have objected to consuming the drink or food if the person was aware of the presence and quantity of the intoxicating substance in the drink or food.
Secondly, there is a defence when a person uses an intoxicating substance in the course of a medical, dental or other health professional practice. Those defences will serve to clarify the extent of the application of the offence and ensure that prosecutions and convictions are targeted towards appropriate levels and categories of criminality.
This Bill will ensure that police officers have the power to charge offenders who engage in the act of drink or food spiking that this dangerous activity can endanger life and ultimately, lead to a person’s death.
In addition to introducing the new drink and food spiking offence, the bill modernises the more serious offences in the Crimes Act that are relevant to drink spiking and that carry penalties up to 25 years imprisonment. These changes will ensure that those more serious offences apply to alcohol, the most commonly used drink-spiking agent.
CONCLUSION:
As a grandfather to seven granddaughters, I welcome this Bill which ensures that the sinister practice of drink spiking is tackled at all levels—from the most serious cases to those at the lower end of the scale—with tiered penalties in place to ensure that offenders face appropriate punishment. It is vital that we make this into a separate offence, and that we send out a strong clear message that drink spiking is no practical joke or prank.
It is a Bill welcomed by the community and a Bill I commend to the House.
