The institutional complaisance (if not complicity) in fundamental abuse that was highlighted in the Royal Commission into Sexual Abuse noted elsewhere in this blog has resulted in a loss of the legitimacy that might preclude tighter regulation. The Queensland parliament has now created a new offence of failing to report and failing to protect a child from institutional child sexual abuse, with the state's Justice minister highlighting that the legislation clarifies 'that priests will not be able to rely on the seal of confession to avoid the reporting of abuse'.
It is unclear how effective the legislation will be and to what extent clergy will heed its condemnation by religious authorities.
The Criminal Code (Child Sexual Offences Reform) and Other Legislation Amendment Bill 2019 (Qld), passed this week, provides
229BB Failure to protect child from child sexual offence
(1) An accountable person commits a crime if—
(a) the person knows there is a significant risk that another adult (the alleged offender) will commit a child sexual offence in relation to a child; and
(b) the alleged offender—
(i) is associated with an institution; or
(ii) is a regulated volunteer; and
(c) the child is under the care, supervision or control of an institution; and
(d) the child is either—
(i) under 16 years; or
(ii) a person with an impairment of the mind; and
(e) the person has the power or responsibility to reduce or remove the risk; and
(f) the person wilfully or negligently fails to reduce or remove the risk.
Maximum penalty—5 years imprisonment.
(2) For subsection (1), it does not matter that the knowledge was gained by the accountable person during, or in connection with, a religious confession.
'Religious confession means a confession made by a person to a member of the clergy in the member’ s professional capacity according to the ritual of the member’s church or religious denomination'.
Under 229BC 'Failure to report belief of child sexual offence committed in relation to child' ...
(1) This section applies to an adult if—
(a) the adult gains information that causes the adult to believe on reasonable grounds, or ought reasonably to cause the adult to believe, that a child sexual offence is being or has been committed against a child by another adult; and
(b) at the relevant time, the child is or was— (i) under 16 years; or (ii) a person with an impairment of the mind.
(2) If, without 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, the adult commits a misdemeanour.
Maximum penalty—3 years imprisonment.
(3) For subsection (1), it does not matter that the information was gained by the adult during, or in connection with, a religious confession.
(4) Without limiting what may be a reasonable excuse for subsection (2), an adult has a reasonable excuse if—
(a) the adult believes on reasonable grounds that the information has already been disclosed to a police officer; or
(b) 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—
(i) the Child Protection Act 1999, chapter 1 2, part 1AA;
(ii) the Education (General Provisions) Act 2006, chapter 12, part 10;
(iii) the Youth Justice Act 1992, part 8 or 9; 5 or
(c) 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
(d) both of the following apply—
(i) 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;
(ii) failure to disclose the information to a police officer is a reasonable response in the circumstances.
(5) An adult who, in good faith, discloses information mentioned in subsection (1)(a) to a police officer is not liable civilly, criminally or under an administrative process for making the disclosure.
