What is a sexual offence?

The term “sexual offence” encompasses all criminal offences involving a sexual element that are “committed against, with or in the presence of a child”.

These offences include (but are not limited to) the following:

• indecent assault
• sexual assault
• aggravated sexual assault
• sexual intercourse and attempted sexual intercourse
• possession/dissemination/production of child pornography or child abuse material
• using children to produce pornography
• grooming or procuring children under the age of 16 years for unlawful sexual activity
• deemed non-consensual sexual activity on the basis of special care relationships.

What is sexual misconduct?

For sexual misconduct to constitute reportable conduct, the alleged conduct must have been committed against, with or in the presence of a child.

There are various types of sexual misconduct including (but not limited to):

• crossing professional boundaries
• sexually explicit comments and other overtly sexual behaviour
• grooming behaviour.

Crossing professional boundaries

Sexual misconduct includes behaviour that can reasonably be construed as involving an inappropriate and overly personal or intimate:

• relationship with,
• conduct towards, or
• focus on

a child or young person, or a group of children or young persons.

In the area of “crossing professional boundaries”, particular care should be exercised before making a finding of sexual misconduct. For example, an employee who, on an isolated occasion, “crosses professional boundaries” in a manner that involves little more than poor judgment could not be said to have engaged in sexual misconduct.  Also, in cases where an employee has “crossed boundaries” in terms of their relationship with a child, if there is evidence that clearly shows the employee did not seek to establish an improper relationship with the involved child, then this does not constitute sexual misconduct.

However, persistent less serious breaches of professional conduct in this area, or a single serious “crossing of the boundaries” by an employee, may constitute sexual misconduct, particularly if the employee either knew, or ought to have known, that their behaviour was unacceptable.

Codes of conduct outlining the nature of the professional boundaries that should exist between employees and children/young people can be particularly useful. For employees who either intentionally breach such codes or have demonstrated an inability to apply them appropriately, it may be necessary to provide more detailed written advice about what constitutes appropriate behaviour.

Sexually explicit comments and other overtly sexual behaviour

Sexual misconduct includes a broad range of sexualised behaviour with or towards children. While it is not possible to provide a complete and definitive list of unacceptable sexual conduct involving children, the following types of behaviour give strong guidance:

• sexualised behaviour with or towards a child (including sexual exhibitionism)
• inappropriate conversations of a sexual nature
• comments that express a desire to act in a sexual manner
• unwarranted and inappropriate touching involving a child
• personal correspondence and communications (including emails, social media and web forums) with a child or young person in relation to the adult’s romantic, intimate or sexual feelings for a child or young person
• exposure of children and young people to sexual behaviour of others including display of pornography
• watching children undress in circumstances where supervision is not required and it is clearly inappropriate.

Grooming behaviour

Grooming or procuring a child under the age of 16 years for unlawful sexual activity is a sexual offence. However, Schedule 1(2) of the Child Protection (Working With Children) Act also recognises grooming as a form of sexual misconduct. As grooming is a sexual offence if the alleged victim is under 16 years, caution should be exercised before reaching a grooming finding (particularly in cases where the behaviour is directed towards a child under 16 years). As an alternative to grooming, in many cases it will be more appropriate to consider whether there has been a “crossing of professional boundaries” (see above) and/or other more overt sexual behaviour.

Furthermore, behaviour should only be seen as “grooming” where there is evidence of a pattern of conduct that is consistent with grooming the alleged victim for sexual activity, and that there is no other reasonable explanation for it. The types of behaviours that may lead to such a conclusion include (but are not limited to) the following:

• Persuading a child or group of children that they have a “special” relationship, for example by:
  • spending inappropriate special time with a child
  • inappropriately giving gifts
  • inappropriately showing special favours to them but not other children
  • inappropriately allowing the child to overstep rules
  • asking the child to keep this relationship to themselves.
• Testing boundaries, for example by:
  • undressing in front of a child
  • encouraging inappropriate physical contact (even where it is not overtly sexual)
  • talking about sex
  • “accidental” intimate touching.
• Inappropriately extending a relationship outside work hours (except where it may be appropriate — for example where there was a pre-existing friendship with the child’s family or as part of normal social interactions in the community).
• Inappropriate personal communication (including emails, telephone calls, text messaging, social media and web forums) that explores sexual feelings or intimate personal feelings with a child.

An adult requesting that a child keep any aspect of their relationship secret or using tactics to keep any aspect of the relationship secret, would generally increase the likelihood that grooming is occurring.

What is an assault?

An assault can occur when a person intentionally or recklessly applies physical force against a child without their consent (actual physical force), or intentionally or recklessly causes a child to apprehend the imminent use of physical force against them without their consent (apprehension of physical force).

Actual physical force can comprise conduct such as hitting, pushing, shoving or throwing objects.  Apprehended physical force can comprise words and/or gestures that lead the child to apprehend the imminent application of physical force, regardless of whether the person actually intends to apply any force.

The element of intention or recklessness relates only to the application of physical force or the creation of the apprehension. The person must either intend to apply physical force or to create the apprehension, or know that it is possible this will happen, but ignore the risk. The person’s intent does not have to be malicious. For example, a parent uses corporal discipline (a slap on the back of a child’s upper leg) for the purposes of correcting dangerous behaviour, not to cause harm to the child. However, if the slap leaves a bruise, it is assault.

The circumstances in which any physical force is used will be crucial when determining whether an assault has occurred, as the question will often be one of degree. There is a range of physical contact that, because of the context in which it occurs, falls within the standards of ordinary everyday conduct and does not amount to assault.

For an assault to occur, it is not necessary that the person act with hostility or that the child sustain an injury. However, the presence or absence of any hostility or injury may be significant when deciding whether the physical force used, or the apprehension created, constituted an assault.

In addition, the Ombudsman Act specifically outlines certain conduct that does not need to be reported:

• conduct that is reasonable for the purposes of the discipline, management or care of children, having regard to the age, maturity, health or other characteristics of the children and to any relevant codes of conduct or professional standards
• the use of physical force that, in all the circumstances, is trivial or negligible, but only if the matter is to be investigated and the result of the investigation recorded under workplace employment procedures.

Serious physical assault

A physical assault is not serious where:

• it only involves minor force
• it did not and was not ever likely to result in serious injury.

A physical assault is serious where:

• it results in the child being injured, beyond a type of injury like a minor scratch, bruise or graze
• it had the potential to result in a serious injury
• the injury suffered may be minor, but the assault is associated with aggravating circumstances (in this regard, aggravating circumstances might include associated inhumane or demeaning behaviour by the employee, for example kicking a child, pulling a child by grabbing the child around the neck).

In considering whether a serious physical assault has occurred, reporting bodies whose work involves regular restraint of children should consider the context of events, including the child’s age and vulnerability.

Generally, behaviour that does not meet the standard of a serious physical assault does not become a serious physical assault by means of it being repeated. The only exception to this is where an employer has developed legitimate concerns for the safety of a child or children and intervened with a worker (for example, warnings or counselling) and the behaviour is repeated.

Ill-treatment captures those circumstances where a person treats a child or young person in an unreasonable and seriously inappropriate, improper, inhumane or cruel manner. The focus is on the alleged conduct rather than the actual effect of the conduct on the child or young person.

Ill-treatment can include disciplining or correcting a child in an unreasonable and seriously inappropriate or improper manner; making excessive and/or degrading demands of a child; hostile use of force towards a child; and/or a pattern of hostile or unreasonable and seriously inappropriate, degrading comments or behaviour towards a child.

In making a determination regarding ill-treatment, it may be important to consider relevant codes of conduct outlining the nature of professional conduct and practice by employees/workers that should occur when working with children/young people.

Neglect includes either an action or inaction by a person who has care responsibilities towards a child.

The nature of the employee’s responsibilities provides the context against which the conduct needs to be assessed.

Supervisory neglect:

• An intentional or reckless failure to adequately supervise a child that results in the death of, or significant harm to, a child
• An intentional or reckless failure to adequately supervise a child, or a significantly careless act or failure to act, that:
  • involves a gross breach of professional standards and
  • has the potential to result in the death of, or significant harm to, a child.

Carer neglect:

• Grossly inadequate care that involves depriving a child of the basic necessities of life such as the provision of food and drink, clothing, critical medical care or treatment, or shelter.

Failure to protect from abuse:

• An obviously or very clearly unreasonable failure to respond to information strongly indicating actual or potential serious abuse of a child.
• It is reportable conduct if a diocesan worker is alleged to have breached:
  • s.43B Crimes Act, Failure to reduce or remove risk of child becoming victim of child abuse or 
  • s.316A Crimes Act, Concealing child abuse offence.

Reckless acts (or failure to act):

• A reckless act, or failure to act, that:
  • involves a gross breach of professional standards and
  • has the potential to result in the death of, or significant harm to, a child.

An incident can constitute neglect if it contains any element within this definition.

Neglect can be an ongoing situation of repeated failure by a caregiver to meet a child’s physical or psychological needs, or a single significant incident where a caregiver fails to fulfil a duty or obligation, resulting in actual harm to a child or where there is the potential for significant harm to a child.

Behaviour that causes psychological harm is conduct that is obviously or very clearly unreasonable and results in significant emotional harm or trauma to a child.

There needs to be a proven causal link between the inappropriate behaviour and the harm, and the harm must be more than transient.

For reportable conduct involving psychological harm, the following elements must be present:

• an obviously or very clearly unreasonable or serious act or series of acts that the employee knew or ought to have known was unacceptable
• evidence of psychological harm to the child that is more than transient, including displaying patterns of “out-of-character behaviour”, regression in behaviour, distress, anxiety, physical symptoms or self harm
• an alleged causal link between the employee’s conduct and the psychological harm to the child.

Psychological harm can include the exacerbation or aggravation of an existing psychological condition, such as anxiety or depression.