Churches, schools could be held criminally liable for abuse: report

By Jane Lee
Sydney Morning Herald
July 15, 2015

Instead of imprisonment or fines, probation orders could be used against certain people in institutions.

Churches, schools and hospitals could be held criminally liable for child sexual abuse perpetrated by people linked to them, according to a report before a royal commission.

The president of the Royal Commission Into Institutional Responses to Child Sexual Abuse, Justice Peter McClellan, flagged on Wednesday that the commission was considering a report which discusses whether an institution should be held criminally liable "for the sexual abuse committed by a person associated with that institution."

It is a crime in Victoria for certain responsible people to negligently fail to reduce or remove the risk children will be abused by others in an organisation.

"One of the key aims of the ... offence was the promotion of cultural change in the way in which organisations who care for and supervise children deal with the risk of child sexual abuse," Justice McClellan said.

"This aim could be further pursued by having the offence apply to the institution itself," he told an assembly of the Uniting Church of Australia in Perth.

Instead of imprisonment or fines, "which ... may have unwarranted and deleterious effects on non-profit organisations", probation orders could prevent people from certain types of conduct for a period of time, he said, citing the report by criminologists  Professor Arie Freiberg and Karen Gelb and NSW Judicial Commission member Hugh Donnelly.

Half of all the allegations put to the commission have involved child sexual abuse in "faith-based institutions", he said.

Sydney University law professor Patrick Parkinson said such a crime could more effectively deter institutions from covering up or failing to prevent abuse in future than current mandatory reporting laws.

While it is a crime in many states to fail to report child abuse in organisations such as schools, Professor Parkinson knew of only one breach in NSW that had resulted in a prosecution. 

Punishments could involve organisations such as schools losing their accreditation. He said such a crime should not be retrospective and warned that it could not only capture major institutions focused on at the royal commission, but also small non-profit groups.

"We must avoid creating [a problem] in which organisations run shy of providing facilities and services for children. Enormous contributions are made throughout the community through religious and charitable groups which provide services for kids.

"We've got to be very careful in reacting to terrible events of the past that we don't damage or destroy our capacity to provide for children into the future."

He said such a crime should be carefully defined, as he estimated people in institutions had about 16 levels of moral responsibility to protect children from sexual abuse.

Justice McClellan also outlined problems victims had with suing institutions for abuse. Institutions are not liable for the crimes of their members under current Australian law, unlike in Canada and Britain.

"This issue is often framed in terms of whether it is fair for an institution, which has not been negligent, to be made liable for the criminal act of a member," he said. "However, it should be borne in mind that the relationship between a child and an institution will typically come about because of an offer made by the institution to care, and provide a safe environment, for the child."

The commission will publish its views on this in its upcoming report with recommendations for redress and civil litigation.



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