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.

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“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.

• 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.

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

• Gendered language in legislation:

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:

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:

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:

• Criminalisation of traditional practices:

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

• Criminalisation of online material:

• Extraterritorial legislation:

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.”