Royal Commission Update

Lexology
August 24, 2017

https://www.lexology.com/library/detail.aspx?g=e4e23e91-7ba5-4af6-9531-2a5e8308f1d4

In the past six months the Royal Commission has continued its work as it nears its end date and final report (due in December). As ever many of the recommendations it makes are not specific to Australia but are of wider application and remit and worthy of consideration for good safeguarding practice and procedure elsewhere in the world including recommendations for reform to criminal justice, reporting abuse disclosed during the seal of the confessional and the misconceptions about memory which impact upon the responses to disclosure.

The most recent publications have included the following:

Research reports

Carer recruitment – 40% of those people who gave their evidence in private sessions (the equivalent of the IICSA truth project) reported abuse in out-of-home care. This report, titled ‘A national comparison of carer screening, assessment, selection and training and support in foster care, kinship and residential care’, highlighted difficulties in attracting and retaining foster carers, that there is only a limited pool of residential care workers and that high staff turnover are all barriers to the provision of high quality out-of-home care which is important to prevent child sexual abuse. The report also found that foster carers required more training on the sexual exploitation of young people in care.

Regulatory bodies – although the bodies considered in the report ‘Oversight and regulatory mechanisms aimed at protecting children from sexual abuse: Understanding current evidence of efficacy’, are specific to Australia there are parallels in the conclusions to the concerns which have been raised in the past in the UK about such organisations as the CQC.

Children with harmful or problem sexual behaviour – ‘Rapid evidence assessment: Current best evidence in the therapeutic treatment of children with problem or harmful sexual behaviours, and children who have sexually offended’, looked at the challenges of helping children with challenging sexual behaviour. This considered the availability of support to those under age 10 and then from age 10-17 and not surprisingly acknowledged the complex challenges which arise in providing support.

Dimensions of child sexual abuse – ‘Assessing the different dimensions and degrees of risk of child sexual abuse in institutions’. This concludes that there are four factors or dimensions of abuse which contribute to the risk of abuse. These are summarised by the RC as follows:

Situational risk provides potential perpetrators with the opportunity to be alone with a child or form relationships that involve physical contact or emotional closeness. This can lead to grooming and unlawful sexual behaviour. The research suggests that residential institutions of all kinds including juvenile detention, immigration detention centres, residential out-of-home care and boarding schools carry an elevated situational risk.

Vulnerability risk arises from the characteristics of the children present in the institution. The research suggests that the main factors influencing vulnerability risk are the ages of the children, children with disability, children with prior experience of maltreatment and children with an incentive to remain silent.

Propensity risk arises from a disproportionate clustering of adults with a propensity to abuse children or children with harmful sexual behaviours.

Institutional risk takes into consideration characteristics of the institution that may make abuse more likely to occur and less likely to be identified and responded to effectively. The research suggests that these characteristics include institutions placing greater importance on the protection of reputation than on the wellbeing and protection of children. Other characteristics include a culture of not listening to and respecting children.

Memory and child sexual abuse prosecutions – the report ‘Empirical Guidance on the Effects of Child Sexual Abuse on Memory and Complainants’ Evidence’, concluded that “common sense” beliefs about memory, including those frequently held by police, lawyers, judges, juries and laypeople, did not correspond with scientific knowledge about memory. Misconceptions about memory include that:

memory will be complete, unchanging and “photographic”;

inconsistencies or gaps may be assumed to demonstrate inaccuracy in the witness’s accounts as a whole;

traumatic events result in greater durability of memory;

children are expected to be able to recall temporal details, such as when an event occurred or how often it occurred;

a witness recalling additional information over time as they give further accounts of the event may be mistakenly considered with suspicion or it be considered an indication of unreliability.

Accompanying this research a standalone summary of guidance on memory in cases of child sexual abuse has been published which is intended to contribute to the development of guidance for lawyers, magistrates, judges, juries and police.

Criminal Justice – 85 recommendations for reform of the criminal justice system have been also been published. These aim to provide a fairer response to victims of institutional child sexual abuse. Of these recommendations the one which has attracted much attention is that which relates to the seal of the confessional. The recommendation is that the criminal offence of failing to report child sexual abuse in institutions should be extended to information given in religious confessions. Clergy should not be able to refuse to report because the information was received during confession. 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. Some of the other recommendations include:

Sentencing standards in historical cases should be the sentencing standards at the time of the sentencing, instead of at the time of offending. However, the sentence must be limited to the maximum sentence available for the offence at the date when the offence was committed.

Tendency and coincidence evidence and joint trials. Laws should be reformed to allow greater use of evidence by multiple victims in relation to a single perpetrator (known as tendency and coincidence evidence) and joint trials.

Grooming children and those around them. Legislation should be 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. Laws should extend grooming offences to the grooming of persons other than the child, such as a parent or carer. This helps to protect the child and recognises that grooming behaviour can also harm those who care for the child.

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.

Case study reports and submissions

Written submissions for the public hearings into the Anglican Diocese of Newcastle (Case Study 42) and for the public hearing into children with problematic or harmful sexual behaviours in schools (Case Study 45) are now publically available as is the report and conclusions in respect of Case Study 41 – Institutional responses to allegations of the sexual abuse of children with disability.