Schools are among organisations in Victoria that will be subject to proposed new laws that will expose their employees to potential criminal prosecution if they fail to act on risks of child sexual abuse occurring or to report a child sexual offence.
Two new criminal offences will make it clear that it is not acceptable for a school to put its reputation or financial interests before those of the children in their care. The first offence is directed towards those who have authority or responsibility to reduce or remove risks of sexual abuse. The second offence is directed to all adults who have information about a sexual offence against a child but fail to report it. The offences each attract terms of imprisonment.
Failure by a person in authority to protect a child from a sexual offence
It will be a crime to fail to protect a child under 16 from a sexual offence.
This offence will apply to a person who occupies a position in a school with the authority or responsibility to reduce or remove a substantial risk that a student will be sexually abused by someone associated with the school. The offence will be committed when the person in authority negligently fails to take reasonable steps to reduce or remove the risk of a student being sexually abused.
As to who will be considered a “person in authority” is not defined in the Act. However, it is likely to include the Principal or Headmaster, Board members or directors, Business Managers, Heads of School and teachers. It may also include other senior non-teaching staff such as counsellors, psychologists and sport coaches.
In a prosecution of an offence it is not necessary to prove that a sexual offence has been committed. Further, the offence does not require that a specific child be identified as being at risk. It will be sufficient to prove a substantial risk of any child at the school becoming a victim of a sexual offence by an associate of the school and that the person in authority, knowing the risk, failed to reduce or remove it.
The person who presents the risk of a sexual offence must be associated with the school. It includes a person who is an officer, office holder, employee, manager, owner, volunteer, contractor or agent of the school.
The offence attracts a maximum term of 5 years imprisonment.
Failure to disclose a sexual offence against a child under 16
It will be a crime for an adult to fail to disclose a sexual offence against a child under 16. This new offence will create a community wide duty on all adults to report to the police information about a sexual offence against a child and therefore encapsulates all adults who work in Victorian schools.
This offence will apply to any adult who has information that leads him or her to form a reasonable belief that a sexual offence has been committed in Victoria by an adult against a child. If an adult has such information, he or she will be required to disclose the information to a member of the Victoria police force as soon as it is practicable to do so, unless he or she has a reasonable excuse.
The circumstances in which a person will have a reasonable excuse from reporting the information to the Victoria police includes:
- where the person may reasonably fear for their safety, or the safety of the child or another person (other than the offender), if the offender was to find out that the offence had been disclosed to the police and the failure to disclose the information was a reasonable response in the circumstances;
- the person believes on reasonable grounds that the information has already been disclosed to the police and the person has no further information to add;
- the victim, now being over 16, requests that the information not be disclosed to the police (unless the victim has an intellectual disability and does not have the capacity to make an informed decision).
The offence will not apply to information obtained through a rite of confession or similar practice, providing there was no criminal purpose involved in the confession.
Further, the offence will not require a medical practitioner or counsellor in whom a child victim has confided to disclose the information to police the police. This is to ensure that the offence does not operate to discourage victims from disclosing information where it is a part of a support mechanism or treatment for the child.
A person who discloses information to the police will have certain protections under the law that will be similar to those provided to a person under the mandatory reporting regime. For instance, the person is assured confidentiality in relation to their identity unless they consent or a Court grants leave for evidence of their identity to be given during a legal proceeding.
The offence attracts a maximum term of 3 years imprisonment.
Updating Mandatory Reporting policies
These new offences are separate from the mandatory reporting scheme applicable to certain persons who work in schools. However, schools need to ensure that their teaching and non-teaching staff are aware of these offences and we recommend that they provide training and information to their staff about the ramifications of these offences.
These laws are expected to be passed by the Parliament shortly. Upon their commencement, we also recommend that schools update their mandatory reporting policies, or prepare separate policies on sexual abuse, to address the obligations imposed by these offences.