CRIMES AMENDMENT (GROOMING) BILL 2013
Written on the 28 February 2014
Second reading - 20 February 2014 - Debate resumed from 6 February; motion of Hon. E. J. O'DONOHUE (Minister for Liquor and Gaming Regulation).
Ms MIKAKOS (Northern Metropolitan) -- I rise to speak today on the Crimes Amendment (Grooming) Bill 2013, and I indicate at the outset that this bill has the full support of the Labor opposition. This bill seeks to amend the Crimes Act 1958 to create a new criminal offence of grooming for sexual conduct with a child under 16 years of age.
Some of the most challenging issues we deal with in this Parliament are the ones that deal with children's safety, and they are the ones we should be giving our utmost attention to. The bill, and with it this new offence of grooming, is largely based on the findings and recommendations of the Family and Community Development Committee report of its inquiry into the handling of child abuse by religious and other non-government organisations, tabled in the Parliament on 13 November 2013. The report, often known by its short title, Betrayal of Trust, was the culmination of many months of work. As I have said previously in this house, I pay tribute to all members of that committee for their bipartisan and considered approach to these sensitive issues.The work of that committee would undoubtedly have been difficult in that some 578 submissions were received and 162 hearing sessions were held, including 56 private hearings, in Melbourne, Bendigo, Geelong and Ballarat.
The final report is a strong testament to the many people who bravely shared their experiences of abuse and allowed their stories to be told. The recommendations in the report covered a range of areas, including reform of the criminal law.Chapter 22 of the report is devoted entirely to the issue of grooming. As members may already be aware, grooming is an act undertaken by a perpetrator with the aim of befriending and establishing an emotional connection with a child to lower inhibitions or gain access to sexually abuse the child. There are a number of ways in which grooming can occur, and importantly the committee noted that grooming can involve the cultivation of a friendship with members of the child's family as well. The committee also noted that grooming involves 'psychological manipulation that is normally very subtle, drawn out, calculated, controlling and premeditated'. That quote was from page 466 of the Betrayal of Trust report.
In an age when more and more children are using the internet we must also be vigilant about grooming taking place online. Currently there is no specific offence of grooming; however, it is considered an aggravating feature of a sexual offence. Even so, the committee found that:Treating grooming as an aggravating feature of a sexual offence does not sufficiently recognise the damage such conduct causes to those who are the subject of such behaviour, categorised as secondary or passive victims.
That appears on page 470 of the report.
In attempting to understand just how damaging this behaviour can be I found the evidence submitted by Mr Patrick Tidmarsh, a forensic interview adviser with the Victoria Police sexual offences and child abuse investigation team, quite compelling -- and I thank the parliamentary library for the comprehensive research brief it has produced, as it outlines some of Mr Tidmarsh's evidence. Mr Tidmarsh stated that grooming is 'not exclusively about the sexualisation of the relationship with the child', as some perpetrators will often 'spend weeks, months or even years crafting a relationship with a family or an organisation and a child in order to gain access -- unfettered and isolated access -- to that child'. That evidence was referred to on page 4 of the parliamentary library research brief.There are many types of behaviours other than the sexual act itself which may constitute acts of grooming, and I note the committee stated that the evidence given by many victims at the inquiry was consistent with Mr Tidmarsh's analysis of grooming behaviour. I am particularly referring to page 466 of the Betrayal of Trust report.
The committee recommended that not only should the offence of grooming be created but it should also not require a substantive offence of sexual abuse to have been committed. It recognised that in addition to the primary or intended child victim of sexual abuse, parents and others can also be victims of this criminal conduct. I cannot imagine the absolute horror, betrayal of trust and guilt parents must feel having been subjected to the predatory behaviour of people they trusted and in some cases had taken into their family home.Clause 3 of the bill inserts new section 49B(2) into the Crimes Act 1958.
The offence will carry a maximum penalty of 10 years jail.New section 49(3) sets out a non-exhaustive list of persons who may be considered to have a child under their care, supervision or authority. These include the child's parent or step-parent, teacher, legal guardian, religious official or spiritual leader, employer, youth worker, sports coach, an out-of-home carer or a person employed in, or providing services in, a remand centre, youth residential centre, youth justice centre or prison.
The bill also makes it clear that a perpetrator cannot escape the law on the grounds of jurisdiction. The grooming offence will apply if the accused or the victim is in Victoria, irrespective of whether some or all of the communication constituting an offence occurred outside Victoria. It only matters that the accused or the victim were in Victoria at the time at which that communication occurred.Whilst we wholeheartedly support the new grooming offence, we know it is often difficult to establish grooming as a crime. People who undertake this behaviour go to extraordinary lengths to cover their tracks. They use interstate or overseas internet service providers and all sorts of means to escape being detected. There are many actions or behaviours that when seen in isolation can appear innocent yet may still constitute grooming. It is important that regard be given to patterns of behaviour and any prior history of the offender.
I am sure all members will agree that the sexual abuse of children is one of the most abhorrent crimes. Its impact can be utterly devastating, both physically and psychologically, and its effects long lasting. As we saw from the evidence given at the Family and Community Development Committee inquiry, for so many of those victims that damage has lasted a lifetime. The protection of children from sexual abuse has been and should always be beyond politics, and we are motivated by those factors in our wholehearted support of the bill before us today.Approaches that deal with the sexual abuse of children should always be bipartisan, which is why I again welcome the government's decision to establish the inquiry that led to the Betrayal of Trust report and subsequently this legislation. The report made a number of recommendations. I look forward to the government quickly taking action on them. I do not wish to hold up the passage of the bill by giving a lengthy contribution today. I wholeheartedly support the bill and wish it a speedy passage.
Ms CROZIER (Southern Metropolitan) -- It is my very great pleasure to rise to contribute to debate on the Crimes Amendment (Grooming) Bill 2013. I listened to Ms Mikakos's contribution and thank her for her comments on the work of the Family and Community Development Committee. As chair of that committee I can attest to the enormous amount of work undertaken by its members. I also thank Ms Mikakos for her comments on the committee's report.The bill is the first piece of legislation that has come into the Parliament following the recommendations made by the Family and Community Development Committee in its Betrayal of Trust report, which I had the privilege to table in this place last November. I take this opportunity to once again thank the many people who assisted with that task, including the secretariat, the Parliament, the victim support agency, Task Force Sano and others, all of whom contributed to preparing the report and its recommendations, enabling us to bring it to the house in a bipartisan fashion.
I would like to commend the government and particularly the Attorney-General on his swift action in drafting laws and enabling this bill to come before us.In a media release of 11 December last year the Attorney-General said:
The creation of this new offence is a key first plank in the government's response to the recommendations of the parliamentary Family and Community Development
Committee's Betrayal of Trust report on the handling of child sex abuse allegations.
As has been highlighted, this bill addresses the insidious manner in which grooming takes place, and it makes it a criminal offence. This has been appropriately reflected in the maximum penalty of 10 years imprisonment. As was highlighted in the report, drafting legislation relating to grooming is not altogether easy. It is not easy to identify what grooming is; it can look like perfectly innocent behaviour.The last thing we want is for innocent people who have normal relationships with one another -- that is, normal contact between an adult and a child -- to be caught up in this legislation. The committee was very mindful of this, but we received an extraordinary amount of evidence relating to grooming and the many forms in which it can take place.
Grooming also affects secondary victims. These can be parents who are severely affected by their guilt, having not fully understood what has taken place. As Ms Mikakos rightly highlighted, sometimes grooming can occur in their very homes. Some secondary victims we heard from were absolutely devastated, and they lived with their guilt for many years -- some up until the day they died. It was just devastating to hear stories, time and again, in relation to the terrible guilt those parents felt. There was no doubt that they were exploited by those sexual predators.Many witnesses described the grooming activities and behaviours that they or their families were subjected to. In many instances the predators were highly skilled in what they did, the behaviours they undertook and the manipulation they used. They recognised that some children were more susceptible than others and that some families were more susceptible than others. In some instances we heard from single parents. We heard about family break-up issues and alcohol-related issues. They were very damaged families, and predators would target these vulnerable families and children and manipulate them for their own devious and dreadful purposes.
Many offenders would make their victims feel special. They would deliberately cultivate a relationship to gain confidence and power, and inducements of various kinds may have been offered to further enhance the relationship. I would like to read to members in the chamber some of the examples that we heard.
I quote from the report, which contains evidence from a number of witnesses who came before the committee.
... my father's drinking probably helped ensure that I was someone he would target.
One victim described his family:Three boys and three girls; it was almost that perfect scenario, I suppose. We were all pretty shy kids. He made things fun. He would chase us, or something like that. He made it so that, I do not know, we would not say anything, even though our parents said nobody is allowed to touch you in certain areas. They told all the kids that, but he made things fun and he made it like he was a friend. I was only five and still did not quite understand what he was doing, really.
Another victim stated:I was a member of both the choir and altar boys ... He groomed me by giving me cigarettes, money and alcohol ...
We wanted to include those examples in the report because they highlight the various degrees of behaviour and the extent that these devious sexual predators went to. They were difficult stories to listen to. As the report indicates, parents and families were also groomed and parents reported feelings of guilt. One victim spoke of her mother:
My mother was no exception, and with a very complex set of circumstances in her own life that allowed for psychological abuse, exploitation and manipulation she was truly putty in the hands of a man who was targeting her child and distancing her from her maternal role toward the child.The examples in the report highlight just how far these predators went. The report states:
Offenders may take full advantage of the respect accorded to their position and the unquestioned trust that parents, grateful for and in some cases honoured by the attention being given to their child, place in them. There is a power imbalance in situations where an offender has a revered position in the family.
When I tabled the report I talked of the extensive life-altering implications. The lives of many people in our community who have been subjected to this sort of behaviour require that the criminality of that behaviour be recognised. This bill does just that: it recognises the deliberate activity of these predators. It will amend the Crimes Act 1958 by inserting a new offence of grooming for sexual conduct with a child under the age of 16 years, and it will make consequential amendments to other acts.I know other members want to speak on this.
It is an important bill that has come before us. I do thank the opposition for its full support in this. I, like Ms Mikakos, believe it is important that any element relating to the area of child protection should be addressed in a swift and bipartisan manner. Again I thank those opposite for their support, and I, like other members, wish it a speedy passage.
Ms PENNICUIK (Southern Metropolitan) -- In speaking on this bill I begin by acknowledging that my contribution follows that of the chair of the Family and Community Development Committee inquiry into sexual abuse, which resulted in the Betrayal of Trust report. Ms Crozier has just preceded me with a contribution, and I pay tribute to her as the chair of that committee.
I note that two other members of the committee, Mrs Coote and Mr O'Brien, are also present in the chamber, and I pay tribute to them too for the extensive amount of work they did and the harrowing testimony to which they had to listen from hundreds of witnesses, or many tens of witnesses, with regard to the issue of child sexual abuse by individuals within trusted organisations.I also pay tribute to all those people who came forward to give evidence to the committee, because that was very brave of them, and it was often the first time they had spoken about it. Of course there are many other people in the community who have not spoken about these issues to this day. As Ms Crozier so eloquently outlined, it has affected their lives forever and probably will always affect their lives.
As to what this bill goes to, it affects the lives not only of the direct victims -- those who were predated upon and who had crimes committed against them -- but also of their family members, particularly their parents, and, as this bill also goes to, other trusted individuals who may have had care of them who were also caught up in this insidious activity of grooming, which in many cases goes on to perpetration of hideous crimes against children. The protection of children against sexual abuse is one of the most serious issues that faces us as legislators and the community, and everybody in the community should always be looking out to ensure that children do not come to this type of harm. It is the responsibility not only of parents but of other adults in the vicinity to be cognisant of and aware of the type of behaviour that this bill goes to -- that is, the behaviour known as grooming.I will not quote from the report, as Ms Crozier has already done so.
Needless to say, anybody who reads through the report will find much of it very disturbing and upsetting. The parliamentary library has put together an excellent brief covering the issue and not only what this particular bill is putting forward but also how the issue is dealt with in some other jurisdictions. I want to make some comments about that, and I would also like to thank the library for its brief and particularly Rachel Macreadie, who was its author.In terms of the technicalities of the bill, it will amend the Crimes Act 1958 to insert a new section 49B to provide for the offence of grooming by a person over 18 years of age for sexual conduct with a child under 16 years of age. The Attorney-General said in his statement of compatibility that the bill creates a new offence of grooming for sexual conduct to give effect to a key recommendation -- that is, recommendation 22.1 -- of the report Betrayal of Trust by the Family and Community Development Committee.
The new grooming offence is very broad -- there are no limitations expressed in the bill. It simply makes it a criminal offence to communicate with a child under 16 years, or with a person with care, supervision or authority of the child -- and there is a non-exhaustive list of who those persons may be -- with the intention of facilitating that child being involved in a sexual offence with the accused or another person at a later time.The new grooming offence does not require a substantive offence of sexual abuse to have been committed, and nor does it require any specific conduct involved in the grooming, such as exposing the child to indecent material or seeking to persuade the child to take part in any sexual activity. The offence will attract a maximum penalty of 10 years.
The offence created by this bill is very broad and therefore needs careful consideration. Even the committee mentioned in its report that it is difficult to draft legislation regarding the crime of grooming. The report says:Actions or conduct that may constitute grooming can sometimes appear innocent, even if inappropriate. It is the perpetrator's intent that makes the conduct criminal in nature. Legislators must be careful in making laws that depend upon circumstantial evidence. For this reason, it is necessary to consider the behaviour in the context and circumstances in which it occurs, in order to determine whether it is part of a pattern that reveals a criminal intent.
That was a point made by Ms Crozier.
The Attorney-General has also stated that the grooming offence is cast broadly so as to apply to any communication with either a child or their parent or carer where that communication occurs with the intention of making it easier to engage in or involve the child in a sexual offence. This will ensure that that sort of befriending and relationship building that the committee identified as an integral part of grooming will be caught by the offence if undertaken with the intention of facilitating the engagement or involvement of the child in a sexual offence.The committee found that grooming often involves not only the cultivation of the friendship of the child victim but frequently the grooming of the parents of the victim as well.
The committee used the term 'grooming' to refer to actions deliberately undertaken by an adult with the aim of befriending and influencing a child and, in some circumstances, members of the child's family, with the intention of establishing an emotional connection in order to lower the child's inhibitions.In her contribution Ms Mikakos quoted from evidence given by Mr Patrick Tidmarsh from the Victoria Police sexual offences and child abuse investigation team. He stated that some perpetrators:
... will spend weeks, months or even years crafting a relationship with a family or an organisation and a child in order to gain access -- unfettered access, isolated access -- to that child.
Finding 22.2 of the committee's report states:... grooming can occur in many other contexts other than via telecommunications --
which are covered by this bill, and -- which are currently covered by legislation. Perpetrators of sexual offences against children often engage in grooming behaviour directly with the child cultivating a friendship through personal contact and the criminality of that conduct should be recognised.Obviously the behaviour that is described in the report and addressed in the bill is insidious and hateful and is undertaken by persons who are intent on abusing children.
I will comment now on the broadness of the offence and the issue it raises of the difficulty -- and Ms Crozier talked about this in her contribution -- of drawing a line between the normal behaviour of adults like me, who like to be around children and to have fun with children, and it being misconstrued as grooming. We do not want a situation to arise where people hold back from having a normal relationship with a child because it might be misconstrued. It is a difficult line and we need to acknowledge that in this debate. The bill says the behaviour must be with the intention of grooming a child for further activity of an illegal nature or abuse of the child further down the line.How is that intent going to be established?
How are we going to know that the person has crossed the line and formed a relationship that is over and above what Ms Crozier described as a normal relationship? I thought they were useful and pertinent questions to ask the department. The answer was that the police would allege that that was the intention of the person and that allegation would be supported by evidence such as emails, text messages, diary entries from the person, chat room entries et cetera, but ultimately it would be up to the courts to decide. If charges are brought, of course it will be up to the courts to decide. I imagine the reference to the evidence that the police would bring to bear is to electronic communications or communications for which there is some written evidence. However, it is going to be very difficult to establish the intent behind the relationship if it is just friendship or actions and where there are no electronic communications or text messages or anything like that.Here I raise a word of caution about the broadness of the offence in this legislation compared with similar offences in other jurisdictions, which I will look at in a moment. People who do not have that intention could be caught up, and in some instances it may make it difficult to catch someone who has that intention. The courts and we, as legislators, need to watch as this legislation works its way through the courts to ensure that it is working in the way it is intended to work, which has come from the recommendations of the inquiry.
In terms of the difficulty of establishing a line between normal behaviour between an adult and a child and unprofessional or insidious behaviour with the intention of abusing children, we need to be aware that there can be situations where persons are accused of having an abusive intent when they do not. They could be, as Ms Crozier said, innocent of that intent but be accused of it by someone who has a malicious intent towards them. A person so accused may be innocent and may be found to be innocent, but they will always carry the burden of the suspicion of others because of the allegation thrown at them, which was found to be untrue. This is a very difficult issue. I raise those cautions because the way the offence is drafted in the bill could lead to unintended consequences. However, I am sure the Department of Justice, the courts and others will be cognisant of that.
By way of comparison, I turn now to the way grooming offences are handled in other jurisdictions. In New South Wales specific actions are attached to the offence of 'procuring or grooming' a child under 16 years for unlawful sexual activity. That was introduced in 2007 by inserting new section 66EB into the Crimes Act 1900. Further offences were added in 2008, including 'meeting a child following grooming' and 'procuring or grooming a child under 16 for unlawful sexual activity'.
It is interesting to note that in the New South Wales legislation there is a difference in the penalties imposed for such offences. The penalty attached to the offence in this bill, under new section 49B, is 10 years imprisonment. In New South Wales there is a differentiation based on the age of the child. The maximum penalty in New South Wales is imprisonment for 15 years if the child is under 14 years, and 12 years if the child is over the age of 14 or between the ages of 14 and 16.Obviously the younger the child the more heinous and hateful the offence, because the child will be less aware that the behaviour of the perpetrator constitutes grooming.
Under the New South Wales Crimes Act there is also an offence for an adult person to intentionally meet a child or travel with the intention of meeting a child whom the adult person has groomed for sexual purposes, and it is an offence for an adult who engages in any conduct that exposes a child to indecent material or provides a child with an intoxicating substance and does so with the intention of making it easier to prepare the child for unlawful sexual activity, and of course they should be offences. In the section on grooming the New South Wales legislation also says that:
In any proceedings for an offence against this section, it is necessary to prove that the child was or was to be procured for unlawful sexual activity, but it is not necessary to specify or to prove any particular unlawful sexual activity.
As I have mentioned before, not only does it need to be outlawed and made an offence under the law, but as was pointed out in the Betrayal of Trust report, we as adults in the community need to be educated about what that sort of behaviour can entail. We also need to be made aware of the difficulty of exactly drawing the line in terms of some types of behaviour which may in fact be quite innocent. It is a difficult issue to deal with.I have attempted to draw a comparison between the way grooming is treated in other jurisdictions and alert the Parliament and the courts to be on their guard as this bill comes into application. Is it effective in catching perpetrators and putting a stop to their activities? At the same time is it capturing people in its application who are not committing any sort of offence and who have no intention of committing an offence? We need to be aware of that. Having made those remarks and highlighted those issues, the Greens are supporting this legislation.
Once again, I thank everybody who was involved in the inquiry that led to the Betrayal of Trust report, a report we all should learn from.Business interrupted pursuant to standing orders.