New Offences related to the Reporting of and Protection from Child Sexual Offences
The Criminal Code (Child Sexual Offences Reform) and other Legislation Amendment Bill (2019) has sought to improve the responsiveness of the criminal justice system to Child Sexual Offending and victims of Child Sexual Offences by amending a range of legislation.
Of particular note are two new offences introduced to the QLD Criminal Code, which have come into effect on the 5 July 2021. As a result of these offences:
- all adults, who gain information causing them to reasonably believe that a Child Sexual Offence is being or has been committed against a child, must report that sexual offending to the police unless they have a reasonable excuse (S299BC).
- adults in an institutional setting (e.g. a school, church or sporting club) must protect children from the risk of a sexual offence being committed against them. (s299BB).
Regarding both of these offences, it does not matter if the information was gained during or in connection with religious confession.
What is a Child Sexual Offence?
A Child Sexual Offence is defined as an offence of a sexual nature which is committed in relation to a child, including offences under Chapter 22 (Offences against Morality) and Chapter 32 (Rape and Sexual Assaults) of the Criminal Code. These will include:
- 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
1.0 Section 229 BC – Failure to report belief of Child Sexual Offence committed in relation to child
Section 229 BC creates a new criminal offence which is a misdemeanor punishable by three years imprisonment that applies to an adult where the following circumstances are met:
- The adult gains information that causes them to believe on reasonable grounds, or ought reasonably to cause them to believe, that a Child Sexual Offence is being or has been committed by another adult;
- At the time at which the offence is believed or ought reasonably to be believed to have been committed against the child, the child is under 16 years or is 16 or 17 years of age with an impairment of the mind;
- In the absence of a reasonable excuse, the adult fails to disclose the information to a police officer as soon as reasonably practicable after the belief is, or ought reasonably to have been, formed.
This new reporting offence will apply to information received on or after commencement, even if that information relates to abuse that occurred before commencement.
This is a broad provision, that imposes obligations on every adult member of the community to understand the complexities of Child Sexual Offences and whether any of the reasonable excuses listed in the bill, or others that may exist, are applicable to their circumstances. In the absence of specific disclosure by a child, it may be difficult for an ordinary member of the community to ascertain whether the information they have gained should raise a reasonable suspicion.
The Queensland government website states that 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.
The offence does state that any adult who, in good faith, discloses information as required by this offence, to a police officer is not liable civilly, criminally or under an administrative process for making the disclosure. However, the reporting must be in good faith, to avoid malicious reporting.
1.1 Reasonable Excuse
The effect of the inclusion of the reasonable excuse provision in 229BC, reverses the onus of proof to the defendant. The section, while not limiting what a reasonable excuse may be does provide a series of examples:
- The adult believes on reasonable grounds that the information has already been disclosed to a police officer;
- The adult has already reported the information under any of the following provisions, or believes on reasonable grounds that another person has done or will do so:
- The Child Protection Act 199, chapter 2, part 1AA;
- The Education (General Provisions) Act 2006, chapter 12, part 10
- The Youth Justice Act 1992, part 8 or 9;
- The adult gains the information after the child becomes an adult (the alleged victim), and the adult reasonably believes the alleged victim does not want the information to be disclosed to a police officer; or
- Both of the following apply –
- The adult reasonably believes disclosing the information to a police officer would endanger the safety of the adult or another person, other than the alleged offender, regardless of whether the belief arises because of the fact of the disclosure or the information disclosed;
- Failure to disclose the information to a police officer is a reasonable response in the circumstances.
The explanatory notes accompanying the Bill explains that the reversal of the onus of proof is due to the Bill anticipating that information that would ground a reasonable belief that a sexual offence has occurred and triggers the obligation to report, will often be gained in clandestine circumstances.
This unique aspect of the offence means that there are likely to be a range of matters that are peculiarly within the knowledge of the accused person.
In these circumstances the defendant would be in a better position than the prosecution to meet the evidential burden.