The perils of no-tolerance sex law
State and federal governments are going all-out to catch pedophiles and purveyors of child pornography and to keep them away from children. Already those found guilty of child-sex and child pornography offences are banned from sensitive professions such as teaching and child care.
Last week the principal of Orbost Secondary wrote to the The Age to protest against the mandatory disqualification from teaching of an "outstanding" teacher at his school because a criminal record check had disclosed a child-sex offence – 10 years before, as a 20-year-old, the teacher had had a consensual sexual relationship with a 15-year-old. Notwithstanding that the teacher had the "unanimous" support of other teachers at the school, his teaching career was over, with no effective right of appeal. Now the Government is proposing to extend this regime of mandatory disqualification for sex offences to the entire community.
The Victorian Government's proposed Working with Children legislation – released as a discussion draft – provides that people found guilty of sex offences (not just against children) be banned for life from working with children, either professionally or as a volunteer. The ban would be mandatory, which means that the only effective right of appeal would be to show that a criminal history check was somehow inaccurate. Offences of violence against children could also result in disqualification.
Anyone who works with or volunteers regularly with children – youth workers, Auskick coaches, youth group leaders, junior soccer managers – would need to undergo a criminal history check and assessment by the Justice Department, which would charge a fee for the check. The assessment would have to be made every five years.
On the face of it, this is a worthy initiative, but before the Government closes its eyes and utters those magic words, "zero tolerance", it needs to consider the consequences of what it is proposing.
It's a situation where the law cuts across the realities of teenage sexuality, with zero tolerance turning them into outcasts. This is because many teenagers, doing the things that teenagers have always done, are committing offences that could see them banned for life from ever working with children. The same criminal provisions used to charge pedophiles for sex with children – the "age of consent" provisions in the Crimes Act – are also used to charge teenagers engaging in consensual sexual activity.
If a 16-year-old has a consensual sexual encounter with someone more than two years younger, the 16-year-old can be charged with sexual penetration of a child under 16 ï¿½ the same provision used to prosecute pedophiles. Under the Crimes Act, sexual penetration is not confined to penile penetration, but also includes oral sex and digital penetration. Even if there has been no penetration, they can still be charged with committing an indecent act with a child.
Under the proposed check, that would mean a mandatory disqualification from ever working or volunteering with children.
Obviously most of these matters never get to court, but sometimes they do, usually in a situation where a parent, having discovered the encounter, complains to the police. Child pornography laws pose similar problems for young people.
It is not an offence for a 15-year-old to have sex with another 15-year-old. But under Victorian law, if one 15-year-old takes a pornographic picture of another 15-year-old with a mobile phone camera, they could be charged with producing child pornography.
Commonwealth provisions designed to combat child pornography pose greater
risks because the downloading or transmitting of pornographic pictures
depicting young people under 18 is an offence. For the sexually curious and
technologically savvy 15-year-old, the internet is an Aladdin's cave of porn
– almost unrestricted and beyond the ability of most parents to police.
A search of many teenagers' hard drives would reveal material that could see them charged with child pornography offences – offences that would attract an automatic ban under the Working with Children check.
It's a situation where the law cuts right across the realities of teenage sexuality, with zero tolerance potentially turning them into outcasts.
But the draft Working with Children Bill is not confined to those offences against children. It provides that a person who has been found guilty of an offence specified in clause 1 of schedule 1 of the Sentencing Act must be banned from working with children. That list of offences includes indecent assault. Former AFL star Wayne Carey, found guilty of indecent assault in 1996, could be banned from becoming an Auskick coach.
Clearly the intention of the Working with Children bill – the protection of children – is good. But how many offences would such a scheme prevent? If the Government is going to impose on the community the significant costs and potential criminal liability that goes with the scheme, it should demonstrate the need for such a scheme.
For instance, the vast majority of child sexual abuse (up to 90 per cent in some studies) is committed by family and family friends – this would not be prevented by the check.
It's possible that court statistics might show that there is a case for a Working with Children check. It's an exercise that is needed, because any additional regulation on community groups has the potential to stifle voluntary activity in the community. If the Government wants to prevent child sexual abuse, it might be a better use of resources to adequately fund the Department of Human Services to fight the abuse where it mostly occurs – in the family environment.
There is also a downside for victims in this type of legislation. If you dramatically increase the consequences for being found guilty of an offence, defendants will be far more likely to plead not guilty, forcing more victims to testify in court. I also suspect that police will become reluctant to lay charges where the incident is less serious.
But back to teenagers. In this environment, it is no longer right that teenagers engaging in consensual sexual activity (as distinct from rape and sexual attacks) should be liable to be charged with the same offences that apply to predatory pedophiles. The stigma and potential consequences of such offences are so great that they can blight a young person's future.
The Government should create a set of lesser offences where the activity is clearly consensual, and the victim is not harmed. The exploitative nature of child pornography makes that issue more difficult, but consideration does need to be given to treating child offenders differently where the activity is restricted. These types of matters should initially be part of a court diversion scheme that might involve counselling and education, rather than taking children straight to court.
Otherwise, in seeking to protect children and young people we risk making some of them outcasts.
15 March 2005