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Child sexual abuse legislation reform needed, finds report

A new report, produced with the assistance of a BigLaw special counsel, has found that legal protections for children are lacking in Commonwealth countries.

user iconJess Feyder 01 August 2022 Big Law
Child sexual abuse legislation reform needed, finds report
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Clayton Utz special counsel Mariam Azzo has assisted United Kingdom-based non-government organisation It’s a Penalty in producing a report reviewing the legal systems protecting children from sexual exploitation and abuse (CSEA) across the Commonwealth of Nations (Commonwealth). 

The CommonProtect report analysed the legal protections in place across 21 Commonwealth member states, from Africa, Asia, the Americas, and the Pacific. It aimed to determine whether, and the extent to which, children are sufficiently protected against CSEA. 

The report analysed criminalisation, gaps in prosecution of offences, gaps in the protection of children, and efforts made towards preventing CSEA. Producing the report involved collaboration across 21 jurisdictions and took a year and a half to complete. 

Ms Azzo acted as the international coordinator for the project, developing a template for the questions and focus areas, identifying research leads across countries, coordinating all the responses and turning research data into clear narratives and trends. 

Ultimately the aim of the CommonProtect project is to bring Commonwealth countries together in a shared purpose, to unite and collaborate to address child sexual exploitation and abuse,” said Ms Azzo.

“CSEA is, sadly, more common in Australia than people might think.

“Often, people tend to regard it as mainly a problem in developing countries. It’s just as prevalent in developed, high-income economies — it’s an ‘everybody’ issue.

“Estimates show that one in eight children are sexually exploited or abused before reaching the age of 18,” stated the report, with “millions of children across the Commonwealth remain at significant risk”.

There is a long way to go towards ensuring that every child in the Commonwealth is protected from CSEA and that offenders are prosecuted and survivors have access to justice. 

Trends

The report outlined key trends in CSEA across the Commonwealth:

  • Familial abuse and abuse by known perpetrators; in over 89 per cent of cases, the perpetrator is known to the child;
  • Sexual exploitation of children in travel and tourism;
  • Harmful traditional practices;
  • Child trafficking;
  • Online CSEA and child sexual abuse material;
  • Cultural and societal attitudes stigmatising survivors; and
  • Limited and incomplete data on CSEA offences.
It also outlined key risk factors for children: 

  • Under-reporting of CSEA offences; estimates show that only 1 per cent of CSEA cases are brought to the attention of child protection services each year;
  • Pervasive discriminatory gender norms and acceptance of violence;
  • Widespread poverty; 
  • Large refugee and migrant populations;
  • Ability for offenders to travel overseas;
  • Increasing access to technology;
  • HIV/AIDS prevalence; and
  • Limited resources to prevent, investigate and prosecute CSEA.
Key issues in criminalisation and legislation

The report outlined key issues in criminalisation and legislation across the 21 countries studied.

  • Gendered language in legislation:
In some countries, it is common for legislation to exclude male survivors, or survivors that don’t identify with either gender, by referring only to females. 

Thirteen of the 21 countries had provisions in their laws that excluded boys in some form, with laws against homosexuality also contributing to poorer protections for children abused by offenders of the same sex. 

  • Outdated terminology:
Outdated legal terms originating from the British colonial era also impact prosecution. Terminology such as “indecent acts” can result in confusing the difference between consensual and non-consensual sex in homosexual relationships, thereby criminalising survivors. 

The term “defilement” can confuse the correct definition of rape and victimise female survivors. The term “child pornography/prostitution” can imply the survivor was willing in the exploitation. 

Ineffective terminology combined with a pervasive culture of shame and parental desire to ensure children are perceived as “clean” by the wider community, results in lack of reporting. Outdated terminology was found in the legislation of 19 out of 21 countries. 

  • A statute of limitation:
A statute of limitation can have devastating impacts on CSEA offences. Survivors can take months or years to come forward, either due to shame and societal stigma, memory loss, or being too young at the time to understand the nature of the crime. 

Out of 21 countries, four have a statute of limitation applicable to CSEA crimes, with length of them varying between three months and 20 years. 

  • Child trafficking:
In many countries, the trafficking of children is linked to the worst forms of child abuse, including commercial sexual exploitation. Eighteen out of 21 countries have not sufficiently addressed all forms of human trafficking in their legislation. 

  • Criminalisation of traditional practices:
Out of 21 countries, 15 do not sufficiently criminalise child marriage. Most of these countries contain contradictory laws; for example, that marriage is prohibited under common law before age 18 but is permitted with parental consent under traditional or religious law. 

Female genital mutilation is explicitly illegal in only six of the 21 countries.

  • Criminalisation of online material:
The amount of online child sexual abuse material (CSAM) has skyrocketed in recent years; the Internet Watch Foundation reported a 77 per cent increase in child sexual material from 2019 to 2020. In nine of the 21 countries, legal frameworks are not advanced enough to deal with this growing problem.

  • Extraterritorial legislation:
Extraterritorial legislation is key in the fight against CSEA globally. It ensures that legal authorities can hold their citizens accountable for crimes committed abroad. There are signs of this being implemented in Commonwealth countries, although several countries have limiting factors in place, and four countries have no extraterritorial jurisdiction in place.

Needed action

Although legislative reform is necessary, there remain problems in prosecuting offenders. Weak implementation and enforcement of legislation limits the effectiveness of the criminal justice system. 

“Among the recommended reforms is the need for more funding to be directed to investigative and enforcement units and to victim/survivor support services,” said Ms Azzo.

“We also need to make it easier for child sexual assault victim/survivors to access the justice system and receive support, as children or adults, regardless of prosecution status.

“In addition to this, we need to invest more in education and early intervention programs aimed at potential offenders and educate adults on grooming and sexual abuse signs.”

“Technology is a big area where there’s an opportunity to tackle the problem — particularly in tracking offenders and the creation and distribution of CSAM,” continued Ms Azzo. 

“The research shows that the darknet is where a lot of CSEA material exists and we just don’t have sufficient safeguards in place.

“We need to find a way to prevent that material finding its way onto the darknet — or making it that much harder to upload and access. If there are brains smart enough to create a darknet, then surely there are brains smart enough to break down the construction of the darknet or, at the very least, create software that can trace and remove CSAM.”

“The #metoo movement has been impactful and transformative in the sexual abuse space, but sadly seems to exclude any substantial emphasis on the alarming amount of sexual abuse inflicted on our most vulnerable and defenceless population — our children,” she said.

“There are several recommendations as to action that Australia can take — framed around the pillars of legal reform, prosecution, protection, enforcement, and education and awareness.

“We know we can eradicate it but there needs to be the political will, and every country needs to make it a priority with a targeted, consistent and hard-line approach.

“We’ve got the ability to do it, but why aren’t we? There’s enough money, brain power, determination, resources and — I’d like to think — enough heart in the world to help prevent the suffering of vulnerable and defenceless children,” concluded Ms Azzo.

“We need to keep talking about it, as uncomfortable as it is.”

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