New laws to
protect minors from abuse ignore the realities of teenage sexuality
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
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 � 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
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
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
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
Otherwise, in seeking to protect children and young people we risk
making some of them outcasts.
15 March 2005