Criminal Law

By Carley Hitchins


New laws to compel adults to report child sexual abuse or face imprisonment

A new law touted by the ACT Government in recent weeks proposes to make it a crime for any adult in Canberra, who believes on reasonable grounds that a child has suffered sexual abuse, not to report that to police. That is, a lay person may face up to two years imprisonment for a reporting obligation that is inherently onerous.

Currently, certain classes of people, commonly referred to as ‘mandatory reporters’, are only required by law to report abuse. They are those who deal frequently with children in the course of their work: teachers, doctors, nurses and police. They are also professionals who, because of their work, have unique access to and expertise to identify abuse more readily than the general community. The daily contact mandated reporters have with children and their knowledge of child development can facilitate the observation and detection of the warning signs of sexual abuse.

The new law is a bit of a stretch from the former reporting obligations of professionals and raises significant legal and practical dilemmas.

While it is proposed there will be a legal obligation to report when ‘belief on reasonable grounds’ arises – what does that mean to a lay person? How is a person with no expertise in a particular area equipped to differentiate a mere suspicion from belief of reasonable grounds?

If this passes, and it looks like it will, there may well be an influx of ‘the average Joe’ (or Joanne) reporting any and every wild allegation they hear, out of fear of getting charged for not doing so.  Given the legislation doesn’t specify when belief becomes reasonable, too much discretion is left to the person required to report and these definitional ambiguities further add to the complexities of mandatory reporting.

That will inevitably lead to over reporting of unsubstantiated claims leaving children, families and accused persons to be subjected to excessive investigation and unnecessary expenditure of limited resources.

While there is an obvious to need demonstrate a commitment to children and their protection from harm, mandated reporting should be left to the professionals. A positive obligation to report should not be imposed upon lay persons who do not possess the appropriate expertise to make a determination on such situations without avoiding unnecessary reporting of innocuous events and behaviours.