Increasing reports of harmful sexual behaviour between children – particularly within Victorian schools, universities and residential colleges – have highlighted the need to raise awareness of strategies that should be adopted by organisations to effectively prevent and respond to harmful sexual behaviours.
Moores Practice Leader, Skye Rose, recently presented on navigating practical issues and recent legal developments in relation to harmful sexual behaviours between children. We have summarised the key takeaways below. You can also view the webinar recording here.
Harmful and problematic sexual behaviours
Harmful sexual behaviour refers to a full spectrum of sexual behavioural problems in children and young people. The term ‘problematic sexual behaviours’ refers to behaviours that fall outside the normal or age-appropriate range for younger children, and which may only harm the child exhibiting the behaviours.
These behaviours include excessive self-stimulation, sexual approaches to adults and obsessive interests in pornography.
The Royal Commission found that aspects of institutional cultures may contribute to children exhibiting harmful sexual behaviours, including physical and emotional abuse and neglect, and hierarchical structures where children held power over other children.
Recent updates to law
There have been a number of legislative updates relevant to harmful and problematic sexual conduct between children.
In Victoria, New South Wales and the Australian Capital Territory, it is a criminal offence to intentionally produce, distribute or threaten to distribute an intimate image or video of another person. The penalty is up to three years imprisonment. Similar offences arise in Queensland, Northern Territory, South Australia, Tasmania and Western Australia.
The Online Safety Act 2021 also enables the eSafety Commission to issue a civil penalty order of 500 penalty units (currently $137,500) where a person posts or threatens to post, an intimate image.[1]
Affirmative consent models have now been introduced in all states and territories across Australia, shifting the onus of proving consent onto perpetrators of sexual violence, rather than victim-survivors This means that there must be free or free and voluntary agreement to a sexual activity, and the person needs to reasonably believe that another person is consenting to an act.
The commencement of these reforms varies from state to state, with some having delayed commencement which will not take effect until later this year.
Every Australian jurisdiction has a statutory definition of ‘consent’. These definitions are relatively similar either referring to “free agreement” (Victoria and Tasmania), “free and voluntary agreement” (NSW, SA, NT the ACT) or “consent freely and voluntarily given” (Queensland and WA).
In the “affirmative consent” jurisdictions of Tasmania, the ACT, Victoria and NSW a person cannot be said to have reasonable grounds to believe that there was consent if that person fails to say or do anything to ascertain whether or not the other person consents.
The age of the child may also affect whether they can lawfully consent to the sexual activity.
Organisations that work with children and young people should consider whether and how they should inform them of these changes, consistent with their obligations under relevant Child Safe Standards and the National Principles for Child Safe Organisations. Schools in Victoria should also consider their obligations to provide students with information about their rights and responsibilities under the Ministerial Order 1359.
An article outlining Victoria’s affirmative consent laws is available here.
Organisation’s duties
1. Duty of Care
Organisations may owe a duty of care to children beyond the boundaries of the physical premises and out of hours activities such as camps, excursions and other events.
The extent of the duty of care will depend on factors including the knowledge of foreseeable risks and the control of the organisation over the environment. In the context of problematic and harmful sexual behaviours between children, overnight camps and homestays carry higher risks.
Where applicable, organisations must take reasonable steps to minimise the risk of reasonably foreseeable harm to children including by undertaking risk assessments, carefully monitoring those risks, and effectively addressing any incidents.
2. Reporting obligations
Organisations should be aware of the different reporting obligations imposed on either the organisation itself or on individuals within the organisation, and notify workers of their obligations.
The failure to comply with these legal obligations can result in harm to children, penalties, regulatory scrutiny and legal claims.
In the most severe cases, it can attract criminal liability for individuals who fail to protect a child from a sexual offence and fail to disclose that a sexual offence has been committed.
3. Privacy
Organisations owe privacy obligations to children involved in incidents of sexual harm, however there may be circumstances in which organisations will need to consider and balance obligations in relation to reporting, privacy and confidentiality.
Organisations need to ensure that they comply with all relevant obligations, and that workers are aware that confidentiality cannot be guaranteed when a child makes a disclosure of harmful or problematic sexual behaviours, including a sexual assault.
Organisations should also be cognisant of the extent to which information is shared internally. Information barriers are important in protecting the privacy of individuals and preventing unnecessary disclosure of private information within the organisation.
Responding to disclosures, complaints or concerns of abuse or harm
When a child or young person discloses sexual harm, it is important to take a trauma-informed approach to the disclosure. This helps to empower the survivor and build confidence in the organisations commitment to addressing the harm. The recommended approach is to use the HEARTS response.
- Hear – listen openly.
- Empathise – acknowledge their bravery in making the disclosure, and that you can appreciate the impact it has had on them.
- Affirm – let them know it’s not their fault and that you believe them.
- Record – record the disclosure and the steps taken to address it.
- Tell someone – consider internal and external reporting obligations.
- Self-care – access internal or external support if needed, subject to confidentiality.
It is important to engage appropriately and responsibly and ensure that support is given to the victim survivor.
Dealing with police
In situations where police become involved, it is important for organisations to cooperate with police requests for information and interviews.
Organisations will need to consider privacy obligations and duty of care obligations to staff in relation to police interviews, and consider whether to ask for a warrant before disclosing information.
Employers should also be proactive in minimising risks of harm to staff or other children who are required to be involved in the investigation.
How we can help
Moores can help organisations navigate these complex issues as either preventative measure or in responding to an incident.
Contact us
Please contact us for more detailed and tailored help.
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[1] Online Safety Act 2021 (Cth), s 75.