The Royal Commission into Institutional Responses to Child Sexual Abuse has published a research paper that suggests organisations be held criminally responsible when their negligence results in harm to children. Released on July 17, it proposes, among other matters, the creation of offences that would hold organisations criminally responsible for the creation and/or management of risk of harm and for their response when harm is done to a child.
To date, most of the research and all prosecutions in relation to child sexual assault have focused on individual offenders. The criminal law is primarily concerned with the responsibility of the individual or individuals accused of committing offences. Because the criminal trial centres on the guilt or innocence of the accused, it rarely addresses broader causes of offending behaviour.
Focus shifts to institutional culpability
Where cases of sexual abuse of children happen in institutions, they are frequently rationalised as being aberrational or isolated instances of bad behaviour. The offender is typically characterised as being a “rotten apple” in an otherwise healthy “barrel”. But pathologising offenders is a convenient way of diverting attention from the systemic forces that produce crime.
The federal government appointed the royal commission in early 2013 to inquire into how institutions with a responsibility for children have managed and responded to allegations and instances of child sexual abuse. The commission was particularly directed to investigate systemic issues and make recommendations to improve laws, policies and practices to prevent such offences in institutions.
There are many legal difficulties inherent in ascribing criminal responsibility to organisations, especially those not incorporated in the traditional sense. Despite these difficulties, the proposal to hold organisations criminally responsible in such cases is based on the belief that state governments should make an effort to create new offences to cover such conduct.
If effective responses to institutional child sexual assault are to be developed, we need to move from an understanding of institutions as merely places where child sexual abuse may occur to places where the institution itself is conducive to crime. And if institutions or organisations are directly or indirectly responsible for criminal behaviour such as child sexual assault, the law should hold them to account.
What would new offences cover?
The basis of culpability would be criminal negligence. This involves a failure to meet the standard of care expected of an organisation in the circumstances. The offences would cover an organisation’s failure to protect a child, its conduct in concealing crimes and its conduct in expressly, tacitly or impliedly permitting a child sexual offence.
The scope of such offences would be far-reaching. It would include any organisation that exercises care, supervision or authority over children. This would cover churches, religious bodies, schools, children’s services, out-of-home carers, youth organisations and government departments.
The aim is not necessarily to punish or deter organisations, given that institutions cannot be imprisoned. Rather, by focusing on organisational responsibility, these laws would recognise that the organisation itself, its culture, policies and practices, may have been criminogenic. It is these cultures, policies and practices that must change if the behaviour of individuals in that organisation is to change.
What sort of sanctions might apply?
There are many precedents for creative organisational sanctions that can provide a more responsive, effective and publicly acceptable response to organisational offending. The new offences would attract a range of sanctions involving some form of court or government supervision, organisational change or reparation to the community. Options include probation orders, supervisory intervention orders, community service orders and enforceable undertakings.
All of these sanctions are already used in other contexts. A feature of many of these orders is the setting of conditions relating to compliance programs.
The purpose of such orders is to ensure that persons within an organisation are made aware of their responsibilities and obligations in respect of the contravening conduct. They may require one or more of the following actions:
implement education and training programs;
revise internal operations;
appoint qualified staff or consultants;
undertake risk assessments; or
implement complaints handling systems and like programs.
National guidelines for building the capacity of child-safe organisations, as part of the National Framework for Creating Safe Environments for Children, could provide the basis for such a compliance program.
The emerging and persuasive evidence of organisational responsibility for child sexual abuse calls for policy responses that move beyond the conviction and sentencing of individual offenders.
Traditional criminal law offences have proven to be inadequate to the task. New offences need to be created, if not to remedy past offences, at least to protect children who may be at risk in the future.