The Royal Commission into Institutional Responses to Child Sexual Abuse has released 85 recommendations aimed at reforming the Australian criminal justice system. The proposed sweeping changes are aimed at providing a fairer response to victims of institutional child sexual abuse.
The Criminal Justice report released today recommends a number of important and necessary legislative and policy changes, including reform to police and prosecution processes, evidence of complainants, sentences and appeals, and grooming offences.
It also recommends new offences, including ‘failure to report’ and ‘failure to protect’.
A snapshot of key recommendations for law reform
Sentencing standards in historical cases
That all states and territories introduce legislation so that sentences for child sexual abuse offences are set in accordance with sentencing standards at the time of the sentencing, instead of at the time of offending. The Royal Commission recommends that the sentence must be limited to the maximum sentence available for the offence at the date when the offence was committed.
The reason for this is that many survivors of institutional child sexual abuse do not report the offence for years, and sometimes decades after the abuse. Applying historical sentencing standards can result in sentences that do not align with the criminality of the offence as it is currently understood.
Tendency and coincidence evidence and joint trials
That law reform allows greater use of evidence by multiple victims in relation to a single perpetrator. This is known as tendency and coincidence evidence and joint trials.
The Royal Commission found that there have been unjust outcomes in the form of unwarranted acquittals because of the exclusion of tendency or coincidence evidence.
Grooming children and those around them
That legislation is introduced or amended to adopt a broad grooming offence that captures any communication or conduct with a child with the intention of grooming the child to be involved in a sexual offence.
The Royal Commission recommended that governments introduce laws to extend their grooming offences to the grooming of persons other than the child, such as a parent or carer, for example, by giving a perpetrator access to the child. The outcome of such reform would be to help to protect the child and recognise that grooming behaviour can also harm those who care for the child.
Failure to report and the religious confessional
One of the most significant recommendations made in today’s report is to recommend that failure to report child sexual abuse in institutions is a criminal offence. The recommendation extends to information given in religious confessions. The Royal Commission found that clergy should not be able to refuse to report because the information was received during confession.
Persons in institutions should report if they know, suspect, or should have suspected that a child is being or has been sexually abused.
The Royal Commission heard of cases in religious settings where perpetrators suffering guilt sought forgiveness by making a religious confession to sexually abusing children and then went on to re-offend. The report recommends there be no exemption, excuse, protection or privilege from the offence granted to clergy for failing to report information disclosed in connection with a religious confession.
Failure to protect a child within an institution
The report recommends that failure to protect a child within an institution from a substantial risk of sexual abuse by an adult associated with the institution should be made a criminal offence.
The Commission heard of many cases where perpetrators were moved between schools and other sites operated by the same institutions when an allegation against them was raised and who continued to abuse children in new locations.
The Royal Commission found that all states and territories should introduce a ‘failure to protect’ offence with legislation already introduced in Victoria providing a useful precedent.
As the Royal Commission found, where allegations against clergy are made, perpetrators are moved between schools or other sites and incidents involving children disclosing abuse at confession have gone unreported. Given the ubiquitous nature of abuses suffered by children and other vulnerable victims at the hands of perpetrators in institutions such as the Catholic Church, it is unclear what measures will be taken to implement the ‘failure to report’ or ‘failure to protect’ recommendations and how they will effectively be enforced.
Unless strong legislative action is taken by governments, it seems likely that sexual abuse will continue to occur, as it has for decades, and that there will be even more opportunity for such heinous and sickening abuses of power to not only continue but also remain hidden behind the veil of institutional walls.
To read the full report visit the Royal Commission into Institutional Responses to Child Sex Abuse.