03
Nov
07

Expanding criminal justice responses to child abuse

Chief Magistrate Jenny Blockland has suggested the Courts should have the power to issue an order against a person to stay away from a specific child, or children, where there is firm evidence of child abuse.

My views are over the fold.

The suggestion has been rejected by the North Australian Aboriginal Justice Agency (NAAJA) on the basis that insufficient evidence to successfully prosecute a person should not render an outcome, in any circumstance, where that person is faced with an adverse order of the court in relation to the same allegation (or facts arising).  The NAAJA response supports an assumption of innocence.      

Glen Dooley, of NAAJA, says:

“What a label to attract…we can’t prove [you are] a child abuser, but we’re saying you’re a child abuser”…

“That’s the most horrendous label that can be attached to anybody, and who’s the somebody that they’re being protected from?

It is clear when comparing the extremely low successful prosecutions for child abuse with evidence across the board that there are many people who commit acts of child abuse who are not succesfully prosecuted.  I suspect this appears to be the case despite the considerations of the degree of sexual behaviour amongst younger teenagers and the facts presented that result from negative environmental health standards (some STDs reported in under-age people may be the result of these circumstances).  Often there is strong evidence of child abuse but insufficient evidence to directly link the accused.

In my view I do not support the idea of allowing absolute discretion to a court to exercise a power unilaterally in circumstances of an unsuccessful prosecution, even when there is an impression amongst the community or families that the alleged is a child abuser.  

In some instances the views of a particular family member or members may falsify an allegation, and the mechanisms for enabling discretion needs to accommodate this risk.     

In suggesting a policy framework, I work on three aspects:

  1. a mechanism as a response to abuse
  2. the applicable test
  3. remedies

First, the mechanisms as a response to child abuse need to be strengthened.  I support the idea of devolving a remedial power across a range of authorities and considerations.  If a mechanism could be established where power is shared, and if there was a veto where seeds of genuine doubt are laid then an assumption of innocence might still be retained.

The mechanism might involve the court as the highest authority, with an interface group serving in an advisory role.  This group may consist of a range professionals with direct interest: police, family & community services, health, et cetera.  A core part of this group would be the people around the victim – family and friends and especially trusted or aggreived persons (or Elders).   

Second, tests that retain notions of reasonable doubt and high standards of evidence might still be possible. 

Third, the remedial powers available to a court might be shaped around minimising public knowledge or creating an obligation upon all within the family safety net to uphold certain responsibilities.  In many cases the lines between child abuse and neglect can be blurred, and enforcing a power on a suspected child abuser might be at the expense of others in a family failing to show adequate responsibilities.  

Responsibilities in relation to children in the first instance are determined by the informal society – social norms and informal rules.  In situations where clear evidence is presented a court or alternative process may involve all relevant parties and stakeholders in devolving decisions and solutions. 

If power is shared and evidence substantiated, then there is a possible case for strengthening criminal justice responses to child abuse. 

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