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Addressing the glaring gap in Victorian CSA grooming offences

Proposal Summary

Rectify the absence of a grooming offence within child sexual offences legislation applicable to 16 and 17 year olds under care, supervision or authority to protect older children at risk of predation

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Prompt and serious consideration by the Victorian Attorney General and Parliament is required to rectify the absence of a grooming offence within Victorian child sexual offences legislation applicable to 16 and 17 year olds under care, supervision or authority. While offences related to grooming were introduced and came into force in 2014, they failed to include protection for older children in institutional contexts.

The Crimes Act Section 8B Sexual Offenses Against Children currently includes:

• 49C Sexual penetration of a child aged 16 or 17 under care, supervision or authority
• 49E Sexual assault of a child aged 16 or 17 under care, supervision or authority
• 49L Encouraging a child aged 16 or 17 under care, supervision or authority to engage in, or be involved in, sexual activity
• 49M Grooming for sexual conduct with a child under the age of 16

With the introduction of 49M, conduct that deliberately intends to facilitate a person’s sexual activity with a child under 16 years of age was made illegal. It was a marker that properly recognised the damage that such conduct causes to children and their families even in where no other sexual offence is committed against a child.

Why though this grooming offence was treated differently from the other CSA offences that relate to older children under care, supervision and authority of another (49 C,E & L) and again when legislation was updated in 2016, is unfathomable.

Those who conceive of, draft and approve legislation, with all the good will and reform intention in the world, are not immune from having blinkers, or from a shared collective blind spot.  A survivor-informed approach to rectifying this anomaly is essential.

Recommendation 36, of the Royal Commission into Institutional Responses to Child Sexual Abuse, emphasised the importance of:

“protecting older children who, despite being old enough to consent to sex, remain vulnerable to sexual abuse by those who hold positions of authority in relation to them”.

The absence of a grooming offence applicable to 16 and 17 year olds under care, supervision or authority, creates a gap within which perpetrators of CSA in positions of authority can operate and abuse the imbalance of power and duty of care they have by virtue of their role.

It equally muddies understanding in the general community about consent and vulnerability of children to abuse within institutions and from people in positions of authority. This remains the case despite the 2021 Victorian Law Reform Commission, Improving the Justice System Response to Sexual Offences review receiving a submission from the Victorian Institute of Teaching highlighting this very anomaly. The VIT also identified that ‘the current grooming offence also allows for a situation where offenders are able to engage in grooming behaviours towards children as long as they do not pursue the sexual component of their relationship until the student turns 18.”

This glaring gap in the protection of children needs to be closed now.

• Child sexual exploitation and abuse
• Sexual abuse in institutional settings
• Justice system responses – police
• prosecutions and courts