Sexual Offences Against Children – An Update to the Law
Important Announcement – How New Law Means That You Can be Charged for Doing Nothing
The law is a very dynamic thing and it is always changing to keep up with changing societal attitudes, beliefs and technology. Changes to the law, including the introduction of new criminal offences, only occur after wide consultation with relevant stakeholders, such as the police, the courts and of course lawyers. Increases to maximum penalties for certain offences happen relatively frequently but it is not very frequent that an entirely new offence is created.
Previously only certain adults had legal obligations to report suspected harm to children (including suspected sexual abuse). However, from 5 July 2021, it is an offence for any adult not to report sexual offending against a child by another adult to police. This means all adults will have the responsibility to report sexual offences against children to police—unless they have a reasonable excuse not to.
For this law, a child means a person under 16 or a person under 18 with an impairment of the mind.
Child sexual offence
A child sexual offence is an offence of a sexual nature committed against a child and includes:
• Indecent treatment of a child
• Carnal knowledge with or of a child
• Grooming a child (or their parent or carer)
• Making child exploitation material
• Maintaining a sexual relationship with a child
Failure to report
The failure to report laws apply to everyone over 18 (i.e. all adults).
If an adult reasonably believes (or should reasonably believe) that a child is being or has been the victim of sexual abuse by another adult, they must report it to the police—unless they have a reasonable excuse not to do so.
The offence does not require reporting of a suspicion that a child sexual offence may occur in the future.
A reasonable belief is a belief that a reasonable person would form in the same position and with the same information. Whether a reasonable belief would be formed will always depend on the circumstances.
For example, a reasonable belief could be formed if either:
• a child states that they have been sexually abused
• the child has signs of sexual abuse
If you have a reasonable belief that a child has experienced sexual abuse or is at risk of sexual abuse, you must report it to the police—unless there is a reasonable excuse for not doing so.
A reasonable excuse includes if:
• you have already reported the offence to an appropriate authority (e.g. Child Safety) or you know another person has or will report it—for example, if you are
• a nurse and have already reported it to Child Safety
• a teacher and your school principal or another teacher has already reported the offence according to other laws
• you believe the information has already been given to a police officer
• you received information about the victim who is now an adult and you reasonably believe they don’t want to reveal it to the police
• you believe reporting the offence would endanger you or another person (other than the alleged offender) and that failure to give the information to police is reasonable.
However, a ‘reasonable excuse’ is not defined exhaustively and may include other circumstances.
The new law specifies that information about a sexual offence against a child that has been gained during, or in connection with, a religious confession, must be reported to police.
Despite the express provisions relating to religious confessions, the offence is not intended to override privilege, including legal professional privilege and sexual assault counselling privilege.
The maximum penalty for failing to report belief of a child sexual offence is 3 years’ imprisonment.
Reporting of offences that occurred in the past
If you receive information after 5 July 2021 that leads you to reasonably believe a sexual offence has been committed against a child and you don’t have a reasonable excuse for not reporting, you must report it—even if the abuse happened a long time ago.
If you received the information before 5 July 2021, you do not have to report it under the new laws. However, if the victim is currently under 18, you may need to report it under other reporting obligations, such as to Child Safety if the mandatory reporting laws apply to you.
Even if you have no legal obligation to report the information, you can still choose to report it to the police.
Victim now an adult
If the victim is now over 18 (but was a child when the offence happened), you still have to report the offence to police if you receive the information after 5 July 2021. However, if you reasonably believe they do not want to reveal the information to police, then you do not have to report it.
You also do not have to report if you have another reasonable excuse.
You are at a barbecue with family members and friends. Your 14-year-old niece tells you that earlier in the afternoon an 18-year-old at the party took her into a bedroom and got her to pose for a nude photograph.
What should you do?
You must report this information to the police. The 18-year-old may have committed an offence of making child exploitation material or indecently treating the child. Failure to report it may be an offence.
Your adult partner confides in you they were sexually abused by a neighbour when they were 5. Your partner tells you they do not want to make a complaint to police.
What should you do?
As your partner is now an adult and you reasonably believe they do not want you to reveal the information to police, you do not have to report the child sexual offence to police—you have a reasonable excuse.
If you require any assistance or clarification of this new law contact our office to discuss further.