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Offence of failing to disclose child sexual abuse

Offence of failing to disclose child sexual abuse.

It is an offence for an adult who fails (without reasonable excuse) to report a child sexual offence if they have information that leads them to form a reasonable belief that a child under the age of 16 has been sexually assaulted. This applies to sexual assaults of people who were under 16 years old on 27 October 2014.

These reports are separate to and distinct from the 'mandatory reporting' required under child protection. Reports about child sexual abuse should be made to the police.

See s. 327—Crimes Act 1958 (Vic)(opens in a new window).

What is a sexual offence?

The sexual offences that a person must report include:

  • rape and sexual assault
  • incest
  • sexual penetration or sexual assault of a child
  • facilitation sexual offences against children
  • grooming for sexual conduct with child under 16
  • sexual activity in the presence of a child
  • encouraging a child to be involved in sexual activity
  • failure by a person in authority to protect a child from sexual abuse
  • sexual offences against persons with cognitive impairment
  • administration of drugs (to render person incapable of resistance)
  • facilitating a sexual offence against a child
  • abduction and detention of a child for a sexual purpose
  • procuring sexual penetration by threats or fraud
  • incest
  • producing, involving a child, distributing or administering a website involving child abuse material

See Part 1 Div. 1 subdivisions. 8A, 8B, 8C, 8D, 8E—Crimes Act 1958 (Vic)(opens in a new window).

Reasonable excuse

Some examples of what might be considered to be a reasonable excuse have been set out in the Crimes Act 1958. It would be a reasonable excuse if the person:

  • reasonably fears for the safety of any other person (but does not include fear for the safety of the person who is believed to have committed or been involved in the sexual offence), or
  • reasonably believes that the information has already been given to the police by someone else and the person has no additional information.

What is not a reasonable excuse

It is not a reasonable excuse for failing to comply only because they are concerned about the person who they reasonably believe has committed or been involved in the sexual offence.

See s. 327(3)—Crimes Act 1958 (Vic)(opens in a new window).

Exceptions

This offence does not apply where the disclosure was made:

  • by a victim who was over 16 at the time of the disclosure and they asked that the information not be disclosed
  • by the victim who has an intellectual disability and does not have the capacity to make an informed decision about whether or not they want the information to be disclosed and the person who received the information knew or ought to have known about this
  • when the person receiving the information was a child at the time of disclosure
  • solely through information available in the public domain
  • about information that is confidential communication under the Evidence (Miscellaneous Provisions) Act 1958
  • about privileged information under the Evidence Act 2008 (lawyer/client, journalist privilege etc.) and the victim was over 16 on 27 October 2014.

From 17 February 2020, there is no longer an exception made for religious confession.

See ss. 327(5), (6), (7)—Crimes Act 1958 (Vic)(opens in a new window)

Maximum penalty

The maximum penalty for failing to report the information is 3 years jail.

See s. 327(2)—Crimes Act 1958 (Vic)(opens in a new window)

Protection for people who disclose

A person who makes a disclosure in good faith:

  • does not breach any of their professional conduct or ethics
  • does not contravene confidentiality and disclosure provisions in the Health Services or Mental Health Acts.

See s. 328—Crimes Act 1958 (Vic)(opens in a new window), s. 141—Health Services Act 1988 (Vic) and Mental Health Act 2014 (Vic)(opens in a new window).

Offence for disclosing identity

It is also an offence for a person to disclose the name of a person who has made a report about child sexual abuse, or any information that may lead to the identification of the person who made such a disclosure.

See s. 330—Crimes Act 1958 (Vic)(opens in a new window).

Protection in court or tribunal proceedings

The identity of a person who reports child sexual abuse is also protected in legal proceedings. Evidence that is likely to identify the person who has made a report about a child sexual offence is only admissible in court if the court grants leave for this disclosure or if the person who made the report gives their consent.

See s. 329—Crimes Act 1958 (Vic)(opens in a new window).

More information

Legislation

Crimes Act 1958 (Vic)

  • s. 327—failure to disclose sexual offence committed against child under 16
  • sub. div. 8A—rape, sexual assault and associated sexual offences:
    • s. 38—rape
    • s. 39—rape by compelling sexual penetration
    • s. 40—sexual assault
    • s. 41 sexual assault by compelling sexual touching
    • s. 42—assault with intent to commit a sexual offence
    • s. 43—threat to commit a sexual offence
    • ss. 44, 45—procuring sexual act by threat or fraud
    • s. 46—administration of an intoxicating substance for a sexual purpose
  • sub. div. 8B—sexual offences against children:
    • s. 49A—sexual penetration of a child under 12
    • s. 49B—sexual penetration of a child under 16
    • s. 49D—sexual assault of child under 16
    • s. 49F—sexual activity in presence of a child under 16
    • s. 49H—causing a child under 16 to be present during sexual activity
    • s. 49J—persistent sexual abuse of a child under 16
    • s. 49K—encouraging a child under 16 to engage in sexual activity
    • s. 49M—grooming for sexual conduct of a child under 16
    • s. 49O—failure to protect a child from a sexual offence (person in authority)
    • s. 49P—abduction or detention of a child for a sexual purpose
    • s. 49Q—causing or allowing a sexual performance involving a child
    • s. 49R—facilitating a sexual offence against a child
  • sub. div. 8C—incest
    • s. 50C—sexual penetration of a child or lineal descendant
    • s. 50D—sexual penetration of a step-child
    • s. 50F—sexual penetration of a sibling or half sibling
  • sub. div. 8D—child abuse material
  • sub. div. 8E—sexual offences against persons with a cognitive impairment or mental illness
  • s. 328—protection of those who disclose under s. 327
  • s. 329—evidence and legal proceedings
  • s. 330—creates an offence for a person who discloses the name of a person who reports child sexual abuse
  • s. 622—transitional. This offence applies to a person who has information and forms a reasonable believe that a person has been sexually abused, regardless of when the abuse happened and when they formed the belief, provided that the child is under 16 on 27 October 2014.

See Crimes Act 1958 (Vic)(opens in a new window).

Evidence (Miscellaneous Provisions) Act 1958 (Vic)

  • s. 32B—confidential communication

See Evidence (Miscellaneous Provisions) Act 1958 (Vic)(opens in a new window).

Evidence Act 2008 (Vic)

  • Chapter 3, Part 3.10—privileged information such as client legal privilege, journalist privilege, religious confessions.

See Evidence Act 2008 (Vic)(opens in a new window).

Mental Health Act 2014 (Vic)

  • s. 346—disclosure of health information

See Mental Health Act 2014 (Vic)(opens in a new window).

Health Services Act 1988 (Vic)

  • s. 141—confidentiality requirements for people working for health services

See Health Services Act 1988 (Vic)(opens in a new window).

Department of Justice and Community Safety

See DJCS—Failure to disclose offence(opens in a new window).

Youthlaw

The specialist community legal centre for young people has brief information about this offence.

See Youthlaw—Failure to disclose and failure to protect offences in Victoria(opens in a new window).

Updated