The Royal Commission into Institutional Responses to Child Sexual Abuse has released these 85 recommendations aimed at reforming the Australian criminal justice system, in order to provide a fairer response to victims of institutional child sexual abuse.
This report recommends a sweep of legislative and policy changes. It includes reform to police and prosecution responses, evidence of complainants, sentences and appeals, and grooming offences. It also recommends new offences, including ‘failure to report’ and ‘failure to protect’.
Sentencing standards in historical cases
All states and territories should introduce legislation so that sentences for child sexual abuse offences are set in accordance with 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.
Many survivors of institutional child sexual abuse do not report the offence for years or even decades and applying historical sentencing standards can result in sentences that do not align with the criminality of the offence as currently understood.
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.
In a number of cases examined by the Royal Commission, juries have been denied the opportunity to hear accounts that give the true picture of what is alleged to have happened.
The Royal Commission found that there have been unjust outcomes in the form of unwarranted acquittals because of the exclusion of tendency or coincidence evidence. Research and data examined by the Royal Commission found that concerns that tendency and coincidence evidence carries a high risk of unfair prejudice to the accused are misplaced.
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.
Furthermore, governments should introduce laws to extend their 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 report and the religious confessional
The report recommends making failure to report child sexual abuse in institutions a criminal offence. This recommendation extends to information given in religious confessions. Clergy should not be able to refuse to report because the information was received during confession.
Persons in institutions should report if they know, suspect or should have suspected a child is being or has been sexually abused.
The Royal Commission heard of cases in religious settings where perpetrators who made a religious confession to sexually abusing children went on to reoffend and seek forgiveness. 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.
Failure to protect a child within an institution
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.
The Commission heard of many cases where perpetrators were moved between schools and other sites operated by the same institutions when an allegation against them was raised. They continued to abuse children in new locations.
All states and territories should introduce a failure to protect offence. The legislation already introduced in Victoria provides a useful precedent.