Sexual activity between students, even between willingly participating students, can be sexual abuse. We recommend reporting all sexual activity between students as an SP4 (report of suspected harm or risk of harm).
In 2018, expect an increased focus on criminalisation of failure to report sexual abuse of children.
In its interim report, the Royal Commission into Institutional Responses to Child Sexual Abuse states: “We are satisfied that there are good reasons for the criminal law to impose obligations on third parties to report to police in relation to child sexual abuse.” (Criminal Justice Report, Page 49, Interim Report, 14 August 2017).
Between the introduction of mandatory reporting for Queensland teachers and principals on 19 April 2004 and the start of 2017, the Union never had a request for assistance with a police investigation into failure to report. We are aware of one example in an independent school.
From the start of 2017, however, there have been two police investigations, one of which has resulted in a criminal charge against the teacher.
Since the release of the Royal Commission’s report, the Union has assisted four members to respond to police investigations into allegations that they failed to report sexual abuse.
In each of the four matters, the sexual abuse being investigated is sexual activity between students.
Mandatory reporting obligations require the report of sexual abuse of students under 18 years. Students under the age of 16 years cannot consent to sexual activity of any type. Therefore, even if it appears the student was a “willing” participant in the sexual activity, it is potentially a criminal offence to fail to report.
Also, consider the situation of a “willing” participant who comes to regret the sexual activity because of peer bullying, or a student under the pressure of a disapproving parent who says “I didn’t want to do it” in their own defence.
When considering whether to report sexual activity, a supportive parent is irrelevant. You must report even if there is a supportive parent acting protectively.
The mandatory reporting obligations are contained in two pieces of legislation in Queensland.
Child Protection Act 1999 (Qld)
Under s13E of the Child Protection Act 1999, a teacher, registered nurse or early childhood education and care professional must give a written report when they reasonably suspect a child has suffered, is suffering or is at risk of suffering significant harm caused by physical or sexual abuse and may not have a parent able and willing to protect the child from harm.
Education (General Provisions) Act 2006 (Qld)
Under s365 & 365A of the Education (General Provisions) Act 2006, a school staff member must immediately give a written report to the principal or the principal’s supervisor when they become aware or reasonably suspect the sexual abuse or likely sexual abuse of a student under 18 years.
While the Child Protection Act is concerned with parents able and willing to protect, that is an irrelevant consideration when the matter relates to sexual activity.
The requirement is for “immediate” reporting.
The department has published a policy which extends to 64 pages in length. There is a “traffic lights” brochure which is promoted in various places by the department to identify “normal” sexualised behaviour. Neither satisfactorily covers how mandatory reporting works. Neither has anticipated the increased criminalisation of failure to report arising since the Royal Commission’s recent report.
If you think you need to refer to a policy to decide whether to report, we recommend you complete an SP4 immediately. By the time you have finished reading the 64 pages, as well as the related policy documents, police are likely to have arrived to question you on your failure to report.
Rachel Drew Holding Redlich Lawyers
Queensland Teachers' Journal, Vol 122 No 8, 3 November 2017, p27