A Victorian parliamentary committee has recommended against the imposition of criminal penalties on people who protected child sex abusers in the past. Legal academic Kellie Toole says this is an affront to both victims and the community.
THE ROYAL COMMISSION into Institutional Responses to Child Sexual Abuse has just heard allegations that boys in the Salvation Army home at Bexley in South Sydney, were ‘rented out’ for sexual abuse during the 1960s and 1970s. This follows allegations at other hearings about child sexual abuse and its cover-up within the Catholic and Anglican churches, the YMCA, Scouts Australia, and Aboriginal Children’s Services.
The sad inevitability that at least some of these institutions will be found to have covered up abuse raises the question of what to do – if anything – with individuals and organisations that actively protected known child sex abusers in the past.
The Victorian Parliament’s Family and Community Development Committee confronted this very problem last year during an inquiry into the handling of child abuse by religious and other organisations in that state.
The Committee found evidence of many decades of widespread institutional protection of child sex abusers through failure to investigate or report allegations; fobbing off, blaming or intimidating complainants; refusing to get treatment for offenders; declining to implement prevention strategies; and moving offenders to other places, including overseas, where children were even more vulnerable to abuse.
Its Betrayal of Trust report made clear recommendations on dealing with individuals and institutions who conceal child sexual abuse from now on.
Section 326 of the Crimes Act 1958 (Vic) enacts the offence of 'concealing offences for benefit', which carries a maximum penalty of one year imprisonment. The offence requires proof that any person who conceals a serious indictable offence received a benefit from the concealment. In most cases, the concealment of child sex abuse does not involve a specific benefit or advantage and so the protectors of child sex abusers do not come within the scope of the law.
The report recommends that the requirement of gaining a benefit be abolished so that protectors of child abusers can be prosecuted. This seems a sensible provision in relation to all criminal offences and of profound importance for the prosecution of child sex offences. The controversy is that the report recommends against the imposition of criminal penalties on the people who protected child sex abusers in the past.
It bases this recommendation on the ‘principle against retrospectivity’, which can be traced back to Roman Law and is currently recognised in international law and various domestic constitutions. The principle is that conduct that is lawful at the time it is undertaken should not later be declared criminal, except in the most exceptional circumstances.
As the reports acknowledges, the principle against retrospective application of laws is fundamental but not absolute. Domestic and international laws recognise that, in some situations, criminal laws should be imposed retrospectively.
Retrospective laws were most famously passed in Australia through the War Crimes Amendment Act 1988 Cth to criminalise certain acts committed in World War II. The law was controversial at the time, but the High Court found in Polyukhovich in 1992 that where conduct is 'extremely grave' the public interest in seeing the offender prosecuted outweighs the right of a defendant to protection from retrospective laws.
Betrayal of Trust describes child sexual abuse as
'… a departure of the gravest kind from the standards of decency fundamental to any civilised society.’
It also dismissed out of hand any possibility that the perpetrators and those who protected them were unaware of the criminal character of their conduct.
It is self-evident that these conclusions reflect current community standards regarding child sex abuse.
Perpetrators of child abuse and protectors of child abusers did not undertake their actions openly and in the belief that they were acting in a morally and legally acceptable way. They undertook their crimes secretly, knowing that their actions were morally reprehensible and illegal, but that the prestige of their institutions protected them from the reach of the law.
Sadly, many of those abusers and their protectors were correct for decades. It is now time to prove them wrong.
The Victorian Parliament, along with the other Parliaments across the country that will face this dilemma in the coming months, should decline to follow the recommendation of the Victorian committee.
Upholding the principle against retrospectivity in this case is incompatible with modern domestic and international interpretations of the rule of law, and with the inquiry's own finding that the perpetrators were well aware that their conducted offended both the law and standards of decency that existed at the time of the conduct.
It would be an affront to victims, and to the community generally, if the protection of the concealers of past child sexual abuse was justified by the rule of law. The rule of law must finally be invoked to protect the victims and not the perpetrators of these crimes.
Kellie Toole is a Lecturer at the University of Adelaide Law School, teaching criminal and evidence law.
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