A new criminal offence was created in Victoria as of 27 October 2014 regarding the reporting of child sexual abuse. This means every adult must report any sexual abuse or suspicions of to the police.

Learn about what constitutes child sexual abuse

The law states that any adult who forms a reasonable belief that a sexual offence has been committed by an adult against a child under the age of 16 must report that to the police, and failure to do so is a criminal offence.

     What does ‘reasonable belief’ mean?
A reasonable belief means that another reasonable person in the same position would also form the same view. This might occur, for example, when a child says they have been sexually abused, a child says they know someone else who has been sexually abused, someone who knows a child says they have been sexually abused, a professional comes to the view that a child has been sexually abused, or there are signs of same.

     Reasons for not reporting sexual abuse to police
The only acceptable reasons for not reporting child sexual abuse to the police are a fear of safety, or when the information has already been disclosed.

     The fear of safety clause
If a person fears for their safety or the safety of another person, including the child or another person in their family, a reasonable excuse exists for not reporting sexual abuse to the police. An example of this may be where a mother doesn’t report sexual abuse of her child to the police for fear of the abuser inflicting violence upon her and/or the child.

This fear is ‘subjectively reasonable’, which means, anyone else who was ‘reasonable’ would probably do the same. The person is question is best able to determine if they are in danger or not, or perceive themselves to be in danger. A court or jury will make a judgement based on the circumstances.

     When the information has already been disclosed – with caveats
If someone believes that the information has already been disclosed to police, they are reasonably excused from offering this information up, so long as they have nothing to add.

There are exceptions to this rule: a mandatory reporting feature of the Children,Youth and Families Act 2005 obliges teachers, doctors and other professionals to report child welfare concerns to the child protection authorities at the Department of Human Services (DHS). If someone has reported to DHS, this means they do not have to then notify police too, since DHS does this.

     Not reasonable excuses…
A person can not say they acted reasonably by not reporting child sexual abuse to police for reputational, legal liability or financial reasons. This could be a principal’s fear of damage to a school’s reputation, an officer of the church fearing for their church reputation, etc.

     Exemptions to the offence of failure to disclose child sexual abuse

• The victim has requested confidentiality
• The person who is meant to report is also a child
• The information would be under privilege
• The information is part of a confidential communication
• The information is in the public domain
• Where the police officers are acting in the course of duty

     When a victim requests confidentiality – with caveats
If a child is sufficiently mature (over age 16) to make a judgement that they want to keep the sexual abuse confidential, they are able to make this decision themselves, and the obligation to report is inapplicable. A child under age 16 is not recognised to be sufficiently mature.

The information must still be disclosed if the abused person has an intellectual disability, cannot make an informed choice about consent, and if the person disclosing is aware of these facts.

     The person is a child when they formed a reasonable belief
If a person is under 18 when they formed a reasonable belief, they are not obliged to make a disclosure when they hit 18. This protects kids who know about sexual abuse, but haven’t told police – there would be an otherwise heavy burden of turning 18 and having to tell.

     Privileged information for lawyers, journalists and clergy
Those who are protected under privilege are lawyers/clients of lawyers, journalists, and religious confessions.

     Confidential information provided to doctors and counsellors
A registered medical practitioner or counsellor is exempt from disclosing child sexual abuse to police if the information is gained from treating a child and providing assistance in relation to sexual abuse.

Under mandatory reporting obligations, a registered medical practitioner is still required to report to DHS if they believe a child has suffered sexual abuse, and needs protection. This isn’t for preventing the reporting of sexual abuse, but to protect the medical practitioner or counsellor from legal liability.

If another adult discloses the sexual abuse about the child in treatment, the doctor or counsellor is then required to disclose this information to the police unless another exemption applies.

     Public domain information
If the information about the child sexual abuse was obtained through the public domain (radio, television, internet), then they do not have to disclose this information to police. There is a grey line here with social media, since the information may be semi-private (only posted to friends and family) rather than fully public.

     Police officers doing their job
If a police officer is acting in the course of duty regarding a victim of sexual abuse, they are exempt from reporting, since presumably it is already done.

     The confidentiality of those who make disclosures to police
The identity of people disclosing child sexual abuse remains confidential unless you disclose it yourself (in person) or consent in writing to your identity being disclosed, or a court or tribunal believes it is necessary in the interests of justice.

     What about knowledge of past sexual abuse?
There is no obligation to disclose child sexual abuse happening in the past unless the victim was still a child when the law (and new offence) comes into effect. That date is 27 October 2014.

     Penalties for failure to disclose child sexual abuse
There is a maximum jail sentence of three years.

Involved in a sexual abuse case and need legal advice? Contact Vanessa Ash and Associates today.