Child Sexual Abuse and Trafficking are Prevalent in Australia

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School girls

When you hear about child trafficking and child exploitation, you tend to think of poorer nations, particularly those in Asia that have long been well-known for both. But a new Australian report suggests that it’s more prolific here than most people think, or perhaps even care to admit.

The study which claims to be an Australian first, is called ‘The Child Next Door.’ It examines the issue of child exploitation and trafficking in Queensland and looks into the way children are mistreated.

Published late last year, the report compiled information and case studies provided by frontline care staff involved with the region’s Child Sexual Exploitation Working Group, involving welfare agencies and police. So the cases involve children in the system that is supposed to have been protecting them. It found that children in regional areas are most at risk.

The authors acknowledge that incidents of child exploitation are massively under-reported, and call for changes to the law which are aimed at stopping would-be offenders.

Experts say that child exploitation and trafficking is often difficult to monitor, primarily due to the age and vulnerability of the victims. Many are too frightened to speak out, fearing they won’t be believed or that making a report will come with consequences.

One of the cases outlined in the report involved a 15 year old girl who was locked in a car and driven between Rockhampton and Byron Bay where her sexual abuse was filmed, then distributed on the internet.

While the Queensland Police Service (QPS) has a dedicated Child Protection Investigation Unit, police admit there are a large number of cases they are simply aren’t aware of, and that in other cases they can find themselves unable to help victims.

When a young person reaches the age of 16, they have generally reached the age of consent and are able make their own decisions in that regard.

What is Consent in NSW?

Under section 61HE of the Crimes Act 1900 (NSW), consent is considered to have been given in the context of sexual assault cases where a person “freely and voluntarily agrees to the sexual intercourse.”

The first requirement to establish a lack of consent is that the complainant did not consent. The second is that the defendant knew the complainant did not consent. This second requirement is established where the prosecution proves that the defendant:

  • knew the complainant was not consenting, or
  • was reckless as to whether the complainant was consenting, or
  • had no reasonable grounds to believe the complainant was consenting.
  • In making such a finding, the court must have regard to all of the circumstances of the case including any steps taken by the defendant to ascertain whether the complainant was consenting, but it must not consider any self-induced intoxication by the defendant.

In addition to this, the current law provides that a person cannot consent to sexual intercourse where he or she:

  • does not have the capacity to consent due to their age or cognitive incapacity, or
  • does not have the opportunity to consent as they are unconscious or asleep, or
  • consents because of threats of force or terror, or
  • is unlawfully detained.

Furthermore, the current law provides that a person does not consent if under a mistaken belief that:

  • he or she is married to the defendant, or
  • that the sexual intercourse is for health or hygienic purposes.

The law also presently provides that the grounds on which it may be established that a complainant does not consent to sexual intercourse include where he or she:

  • was substantially affected by drugs or alcohol,
  • was subjected to intimidatory or coercive conduct, or another threat, that did not involve force,
  • was taken advantage of through an abuse of authority or trust.
  • The law also makes it explicitly clear that a complainant who does not offer physical resistance is not necessarily consenting.

These laws were introduced in 2007 in response to a sustained campaign by mainstream media outlets to get tough on alleged sexual offenders. In 2018, the laws were put under review by the Law Reform Commission. At the time the government wanted laws to be changed to make it easier to convict offenders, calling for laws to support consent to mean that all parties had provided an explicit ‘yes’ to sexual activity. Anything less would mean consent had not been provided.

Another difficulty arises if there is no forensic evidence and no witnesses which can make building a case against an offender very difficult, although not impossible to prosecute. Often because abusers work to build trust, and then total dependence from the victim, isolating them from family and friends, this makes reaching out to others outside the abusive relationship for help and support exceptionally difficult.

Relationships of ‘special care’

Although the age of consent is generally 16 years in New South Wales, the Crimes Act 1900 makes it a crime to have sexual relations with a person who is over 16 but under 18 where a relationship of ‘special care’ exists.

One of those offences is contained in section 73 of the Crimes Act, which provides that:

(1) Any person who has sexual intercourse with a young person who:

(a) is under his or her special care, and

(b) is of or above the age of 16 years and under the age of 17 years,

is liable to imprisonment for 8 years.

(2) Any person who has sexual intercourse with a young person who:

(a) is under his or her special care, and

(b) is of or above the age of 17 years and under the age of 18 years,

is liable to imprisonment for 4 years.

Another is contained in section 73A of the Crimes Act which states:

(1) Any person who intentionally:

(a) sexually touches a young person under the person’s special care, or

(b) incites a young person under the person’s special care to sexually touch the person, or

(c) incites a young person under the person’s special care to sexually touch another person, or

(d) incites another person to sexually touch a young person under the first person’s special care,

is guilty of an offence.

The maximum penalty where the young person is at least 16 but under 17 years of age is 4 years in prison, or 2 years where the person is at least 17 but under 18.

What is a relationship of ‘special care’?

A relationship of special care exists where:

(a) the offender is the step-parent, guardian or authorised carer of the victim or the de facto partner of a parent, guardian or authorised carer of the victim, or

(b) the offender is a member of the teaching staff of the school at which the victim is a student, or

(c) the offender has an established personal relationship with the victim in connection with the provision of religious, sporting, musical or other instruction to the victim, or

(d) the offender is a custodial officer of an institution of which the victim is an inmate, or

(e) the offender is a health professional and the victim is a patient of the health professional.

A statutory defence to the charge is that the parties were married at the time.

Section 72B of the Crimes Act defines ‘member of the teaching staff’ as:

(a) a teacher at the school, or

(b) the principal or a deputy principal at the school, or

(c) any other person employed at the school who has students at the school under his or her care or authority.

Time to change the law?

In 2014, Victoria, which has some of the toughest sexual assault and sexual abuse laws in the country, introduced “disruption” laws targeting potential offenders and putting pressure on them to sever a relationship.

The State’s Department of Health and Human Services, along with police, can use harbouring notices, no-contact notices, and intervention orders against people deemed persons of interest.

Queensland is expected to introduce similar laws, because in many cases, these children are already known to social services or police, but there are blocks to helping victims by ensuring they can break contact and are able to get out of dire situations where dependence (lack of necessities like food, money, clothing, other friends) means they will be tempted to return, fearing they have no other options.

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.
Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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