Preventing the Sexual Abuse of Adults with a Disability

Vince Scopelliti - Wednesday, September 12, 2018

Sexual abuse of people with a disability is a crime that unfortunately is often misunderstood, undetected and ultimately overlooked by organisations. Individuals with a disability are often uniquely vulnerable to sexual and other forms of abuse and deserve both strong protection and swift action in relation to any such allegations. 

Organisations responsible for the care of people with a disability are entrusted with the tasks of fully understanding the signs of sexual abuse, dealing with disclosures, and putting in place robust procedures for prevention and action.

the issue of consent

For organisations or individuals who care for a person with a disability, it can at times be difficult to ascertain the presence or absence of consent to sexual activity, particularly where the person accused is a spouse, partner or other close companion.

Part of this uncertainty is tied to society's historical myth that people with a disability are inherently non-sexual. Yet at the other end of the spectrum is the very real potential for sexual exploitation and abuse of people with a disability. Navigating the difficult issue of consent to sexual activity in these contexts requires a nuanced approach to each individual allegation. 

The above-mentioned nuanced approach only applies to adults with a disability. When children with a disability are concerned, the standard rule applies that children under the age of consent are unable to consent.

signs of abuse

In some cases, the individual with a disability will be able to quickly and clearly articulate their complaint of sexual abuse in care. 

However, just as each person with a disability is unique, so are the types and complexities of presenting issues. This can create challenges for those seeking to prevent and/or investigate sexual abuse allegations. For example, verbal or intellectual capacity issues can reduce the ability of carers and others to absorb the gravity of a situation. 

There are some key signs however that a person with a disability might be the victim of sexual abuse. Sudden changes in behaviour, temperament or activities can often raise the alarm. This could involve exhibiting fear towards an individual, acting out sexually or becoming uncharacteristically aggressive. 

Physical signs can include restraint marks, facial bruising or blood in the genital area. There are many more signs - some quite subtle - that a person with a disability has been subjected to sexual abuse. 

It is crucial that all staff and family members are aware of these and are prepared to take swift and appropriate action to further the matter. Further, investigators require utmost sensitivity and diligence during any investigation. 

Disclosure of abuse

Unfortunately, it is both the subtle, insidious and complex nature of sexual abuse of people with a disability that can prevent or delay the disclosure of the crime in question. The person with the disability may be hampered in their attempts to disclose - either by the nature of their disability or a lack of concern shown by those around them. Staff caring for the individual must therefore be trained and supported in the key steps needed to swiftly and effectively report any suspicions of sexual abuse against vulnerable individuals.

The organisations role

Organisations that are entrusted with the care of persons with a disability have a number of distinct obligations when it comes to the prevention and reporting of sexual abuse. At the heart of these requirements lies an ethic of care that embraces the right of all individuals to live free from harm. 

This inherently includes provision of care services that respect, protect and enhance the lifestyles of people with a disability. Moving outwards from this are legislative and policy requirements for management and professionals working in the care environment, as well as health and safety constraints that protect the welfare of all involved in disability care contexts. 

Yet perhaps the most important role for organisations is the development of robust policies and procedures designed to prevent, detect and act upon complaints of sexual abuse. Training all staff, family, clients and relevant community members in the content and application of these resources is essential to the welfare of those in care environments.  

If concerns have been raised in your organisation and you would like to conduct an investigation into the allegations, contact WISE today. Alternatively if your organisation requires a safe, secure environment to report concerns or complaints, WISE has a Confidential Whistleblower Hotline (Grapevine), enabling insightful management of complaints and the ability to bring about real cultural change and reduce risk. 

What To Do When Faced With Allegations of Child Sexual Abuse

Vince Scopelliti - Wednesday, August 22, 2018

In the event of an allegation of child sexual abuse in the workplace, it is essential that immediate steps are taken to ensure the safety of any child allegedly involved. 

Following from this crucial first response, mandatory reports need to be made to the relevant statutory child protection authorities and subject to any police investigation, the allegations must be objectively investigated. The investigation report must be provided to the appropriate authority. 

As a society, we are beginning to understand the true nature and extent of child sexual abuse, including the insidious manner in which this crime can take place. Employers must be swift to report where required, providing all necessary support to various parties throughout the course of the investigative process. 

If in doubt, reporting child abuse allegations to the Police is preferable to inaction.

preying on vulnerability

Child sexual abuse by its very nature is a violation of trust, relying as it does upon the vulnerability of minors. As well as involving criminal physical and sexual acts, emotional abuse 'grooming' and 'crossing boundaries' are now recognised as being part of the matrix of child sexual abuse. 

For example, in an educational setting or community group, crossing boundaries and grooming can involve subtle favouritism from the employee towards one or more children. This can develop into a falsely 'special' connection that can ultimately lead to more tangible forms of abuse. 

For employers, protection against child sexual abuse by employers will require knowing the warning signs of inappropriate relationships and acting swiftly where needed.

Employers' responsibility to report

If an allegation of child sexual abuse arises in the workplace, the first priority for the employer is to secure the safety and welfare of the child/ren allegedly involved. This holds true even if the allegation is speculative or based upon unverified reports. 

Some employers will have mandatory reporting requirements dictated by legislation, which will require the reporting of any activity causing or likely to cause harm to a child as soon as is reasonably practicable in the circumstances. 

Above all, employers who become aware of possible child sexual abuse in the workplace must not delay reporting until a finding has been made. A report needs to be made as soon as the employer becomes aware of the allegation. 

Further, while strong policies around the reporting of child sexual abuse will guide timely and appropriate action, a failure to act cannot be blamed upon the lack of such resources.

Across australia - reporting child sexual abuse

As a nation - and particularly since Australians have become more aware of our institutional failures - we have learned to better protect and support children who are subject to child sexual abuse. 

If an allegation of child sexual abuse arises in connection with employment, there will be subtle differences between the Australian States and Territories regarding the form that a report should take. 

A summary report by the Australian Institute of Family Studies (AIFS) demonstrates that while there are some differences in the size and quantity of State and Territory legislation protecting children, the overall structure is similar - a Child Protection (or similarly named) Act, plus in many cases statutory reporting requirements to a statutory child protection department and/or Ombudsman, or similar body. 

Regardless of which jurisdiction an employer operates in, it is important to remember that procedural fairness must be provided throughout the entire process from allegation through to investigation and reporting. 

internal or external investigation? 

An allegation of child sexual abuse in the workplace will ordinarily be followed by practical steps to ensure the immediate safety and welfare of the child involved. 

Following this, the person or persons alleged to have carried out the abuse need to be informed of the allegation and advised of the next steps to be taken. 

Depending upon the severity of the alleged conduct, a period of immediate leave might be provided. It is vital to ensure that the person accused is given all necessary information about the process. This will include giving an initial outline of the allegation, the nature of reporting requirements and the type of investigation to be undertaken. 

Whether an investigation should be carried out internally or externally is a vital question for employers to consider. In such sensitive cases as child sexual abuse allegations, an internal investigator would need to be knowledgeable and experienced in all facets of objective and fair workplace investigations, be familiar with Child Protection Legislation and be experienced at interviewing children. If a workplace exhibits turmoil and division regarding the allegation, or expertise is simply not available in-house, then it might be best to source external assistance in conducting the investigation. 

When allegations of abuse arise the primary focus must be the safety, welfare and wellbeing of any child who may have been involved in the alleged conduct - or who may be at risk of harm due to contact with that employee. 

If you work with children and want to ensure your practices are current, WISE provides training services, including investigating abuse in care. Alternatively, if you have an allegation of abuse, and are unsure what to do, contact WISE today! 

Guarding the Vulnerable: Reporting Obligations in Focus

Vince Scopelliti - Wednesday, July 25, 2018

With the conclusion of the Royal Commission into Institutional Responses to Child Sexual Abuse, Australian organisations are now on notice in relation to their ongoing child protection reporting obligations.

Mandatory reporting of particular conduct or convictions is a strong means of ensuring that those who care for the most vulnerable in our community, do not slip through the regulatory net.

We examine the nature and extent of these obligations, as an ongoing reminder of the importance of safeguarding children and other vulnerable individuals within organisational contexts.

Different states, different rules 

One of the difficulties that has hampered a national response to child abuse and neglect is that due to Australia being a federation of States, there can be slight differences in the reporting requirements between State jurisdictions. This leads to the possibility of uneven treatment between organisations that are mandated to report alleged child abuse.

As a result, employers should be vigilant in adhering to the reporting obligations applicable to all organisational operations, both between and across State lines. Effectively identifying and reporting the types of behaviour that require mandatory notification is an ongoing challenge across Australia - but certainly a battle that is worth continuing, considering what is at stake.

This article focuses on reporting obligations in NSW. 

Reportable conduct

Under s 25A of the NSW Ombudsman Act 1974, the nature of reportable conduct is clearly set out. Alleged conduct by an employee or prescribed volunteer that involves child sexual assault or misconduct, child abuse and/or neglect must be reported to the Ombudsman as soon as practicable by all agencies covered by the Act.

An employer's knowledge of an employee's prior conviction for reportable conduct must also be brought to the notice of the Ombudsman. Less well-known conduct such as grooming and crossing boundaries by an assailant are also covered, and employers should take care to understand the breadth of the behaviours in question.

Mandatory reporting

Under the legislation, it is mandatory for employers within three organisational types to report any alleged notifiable conduct.

These organisations are defined in the Act as designated government agencies, all other public authorities, and designated non-government agencies (such as schools, childcare centres, out-of-school-hours services and agencies providing substitute residential care).

The latter group provides examples only, and employers should examine closely whether their organisation is, in all likelihood, an entity that falls under this third grouping. Businesses or agencies who are uncertain about their reporting obligations should seek immediate professional advice regarding their status under the Act.

when do obligations arise

It is not necessary for employers to have firm evidence about notifiable conduct prior to contacting the Ombudsman. Any allegation of reportable conduct should be notified as soon as the information comes to hand. Waiting until a clearer picture or more facts can be established before reporting is not advised. There is much more risk in 'waiting it out' than there is in making a premature notification: the safety and wellbeing of children must of course be placed front-and-centre in all deliberations by employers.

Who to report to?

The Ombudsman provides information and reporting advice for NSW employers in relation to mandatory notification of alleged child abuse. If any doubt remains at all in specific circumstances, it is essential that employers seek advice on the extent and nature of their obligations. For those employees who are not at the higher rungs of an organisation, it can certainly be difficult to ascertain who to tell if child abuse or neglect is suspected. Depending upon the circumstances, involvement of Police or the Office of the Children's Guardian might be necessary alongside those mechanisms mandated by the Ombudsman.

internal processes

It is not always the case that business owners or senior management will be aware of child-related reportable conduct that requires immediate notification. For this reason, it is essential that appropriate procedures are put in place to ensure that all employees are aware of mandatory reporting obligations.

Training on the practical requirements for reporting an employee or volunteer should be regularly provided and updated. Child safety is necessarily an organisation-wide issue and time can be essential if an individual finds themselves in a situation where abuse is suspected.

WISE provides Investigating Abuse in Care training which is specifically developed for organisations dealing with vulnerable clients. This is designed to meet the needs of investigators of child abuse in line with the recommendations of the Royal Commission into Institutional Response to Child Sexual Abuse. Alternatively, we are highly experienced at investigating reportable conduct matters, through our investigation services.


Grooming, or an Error in Judgment?

Vince Scopelliti - Wednesday, October 18, 2017

No employer likes to think that one of their staff members might deal inappropriately with a client, or even could possibly commit a criminal act. But all employers need to be aware of the potential for professional boundaries to be crossed in these ways. This is particularly important for organisations that work directly with vulnerable members of society, including children, the elderly, and the disabled 

We take a look at when certain behaviours might be deemed to be significant errors of judgment, or in the worst-case scenario, grooming.

The definitions 

In NSW, the Child Protection (Working with Children) Act 2012 sets out the requirements for people who work with children. It defines misconduct involving children to include the action of 'grooming'. 

Similarly, Section 25A (1) of the Ombudsman Act 1974 (NSW) considers 'reportable conduct' to include: 

  • Any sexual offence or misconduct committed against, with or in the presence of a child, including child pornography. Grooming, sexually explicit comments and other overtly sexual behaviour, as well as crossing professional boundaries are included in the definition of sexual misconduct. 
  • Any assault, ill-treatment or neglect of a child.
  • Any behaviour, which causes psychological harm to a child, even if the child agreed to that behaviour. 

In NSW, the offence of grooming is set out in Section 66EB of the Crimes Act 1900. It is defined as behaviour by an adult who exposes a child to indecent material or provides a child with an intoxicating substance with the intention of making it easier to procure the child for unlawful sexual activity. 

A child is defined as being under the age of 16, however the maximum penalty for the offence of grooming is higher (up to 12 years), if the child is under 14. This is very similar to the definition contained in the Commonwealth Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010

By contrast, in Victoria the Crimes Amendment (Grooming) Act 2014 defines grooming as 'predatory conduct' engaged in to prepare a child for participation in sexual activity at a later time. What is relevant in Victoria is the intention in the interaction. 

For example, even if nothing sexual is ever explicitly discussed or implied, shown or raised, the conduct can still be considered 'grooming' if the person befriends a child or their parent with the intended, hidden purpose of later pursuing sexual activity. 

grooming children - examples of common behaviours

Specific instances of grooming are likely to differ depending on the circumstances, but examples could include:

  • Creating a belief in a child or group of children that they are in a special relationship with the 'groomer', whether by participating in particularly adult conversation or providing 'special' gifts or activities. 
  • Permitting testing of boundaries, such as engaging in adult or inappropriate behaviours, including jokes, sexual displays or nudity in front of a child. 
  • Establishing an inappropriate relationship outside of work, including inappropriate or excessive text, email or social media contact, or developing unnecessary and close friendships with family members. 
  • Targeting children who are particularly vulnerable due to disability, history of trauma or previous emotional, physical or sexual abuse.  

a case in point

A recent decision of the Victorian County Court highlights some of the difficulties in determining whether behaviour constitutes grooming, or simply a person creating a bond because they want to help out a vulnerable child. 

In this case, reported by The Age, a troubled student was mentored by a teacher in his mid-20's There was never any sexual contact between them, but the teacher provided numerous gifts and engaged in regular excursions with the pre-teen boy, eventually turning into 'sleepovers'.

The accounts of the boy suggest that the sleepovers included physical contact and sexual discussion, which was completely denied by the teacher. Although the teacher was ultimately acquitted of charges, his life and livelihood were destroyed.  

gROOMING THE ELDERLY - FINANCIAL ABUSE

Another, less well-known example of grooming involves a specific type of behaviour, by carers or medical staff, towards elderly patients. These actions are designed to foster unnaturally close relationships between the caregiver and the client, with the intention of obtaining financial gain. This could occur through:

  • Traditional theft, such as taking money or items from a client's room.
  • Misusing financial information, such as PIN numbers or cheque books, to take out unauthorised funds. 
  • In extreme cases, procuring powers of attorney, or ensuring inclusion into wills in order to obtain a significant portion or the entirety of a financial estate. 

THE DIFFERENCE BETWEEN GROOMING AND AN ERROR IN JUDGMENT

A finding that behaviour constitutes grooming, as opposed to a simple error of judgment, is likely to depend on the intention and the degree of the wrongdoing. Circumstances, which could contribute towards a finding of grooming include:

  • Whether an action is a 'once off' or a repeated pattern. For example, one ill-considered movie outing between a teacher and a student, or a series of meetings outside school hours. 
  • Whether there is any ulterior motive, particularly a sexual one, or if a decision was simply made rashly.
  • Whether the person in a position of authority intentionally pursued or sought out a relationship with the vulnerable person. 
  • Whether there may be a reasonable alternative explanation for the behaviour.
  • Whether there was a request/coercion for the vulnerable person to keep any aspect of the relationship secret.
  • Whether there was repeated conduct despite previous warnings from supervisors/managers. 

why codes of conduct are important

If your organisation works with vulnerable persons such as children, specific Codes of Conduct, which set out the professional boundaries expected between staff and clients, and the consequences for any breach of these, can be very useful. 

If you require assistance drafting a Code of Conduct, which meets all of your organisation's needs, or have received a complaint that professional boundaries may have been crossed in your workplace and need to undertake a workplace investigation, contact WISE Workplace. We offer full or supported investigation services and can also assist with investigation training, awareness training.

Codes of Conduct and Different Professions

Vince Scopelliti - Wednesday, October 04, 2017

A Code of Conduct sets out the 'golden rules' or guidelines in which employers and industry bodies codify acceptable standards of behaviour in the workplace. 

Individual businesses can develop their own Codes of Conduct applicable to their specific interests. Many professional bodies also implement standardised Codes of Conduct covering behaviour which is perceived as being a particular risk within that type of industry. 

Why is a code of conduct important?   

A Code of Conduct provides employees with clear parameters for what is appropriate and inappropriate at work. 

The precise content of a Code of Conduct depends on the nature of the industry or business to which it applies. For example, the legal industry imposes strict requirements on confidentiality and integrity, which may be unnecessary in other industries. 

One important aspect of a Code of Conduct is ensuring specific guidelines are in place regarding professional distance and potential conflicts of interest that may arise, whether actual or perceived. 

Acceptable behaviour under these guidelines is likely to differ significantly depending on what is appropriate within a certain profession. For example, while a general practitioner or a physical therapist needs to have physical contact with their clients and patients in order to perform their duties, there is a completely different expectation on teachers, where specific types of physical contact can be inappropriate, in breach of the Code of Conduct or can even constitute reportable conduct. 

The Code of Conduct should also address complaints handling and the specific disciplinary response for conflicts of interest and other breaches of the Code.

dealing with vulnerable persons and a 'special class' of clients

In addition to avoiding the more obviously inappropriate behaviours such as perceived sexual or excessive physical contact, professional Codes of Conduct have regard to the type of clients or customers their adherents are likely to encounter. 

In the spheres of nursing, teaching, social work and psychology, practitioners will almost inevitably deal with vulnerable people. Indeed, the nature of the work and the clients' vulnerabilities may mean that they form inappropriate attachments or relationships with professional staff. Guidelines for dealing with these types of situations, including appropriate reporting requirements and the potential for independent observers to be used, are necessary parts of the Code of Conduct for these professions. 

In a similar vein, aged care, legal or financial service providers must ensure that there cannot be any misconception of inappropriate behaviour constituting potential financial abuse or conflict of interest, such as putting undue and improper pressure on a client to make a financial bequest or confer a financial advantage.

Abuse of power

Explicit Codes of Conduct governing conflicts of interest and biased behaviour are vital in professions that are open to abuse of power. For example, there is considerable potential for corruption, fraud and conflicts of interest to arise in the case of staff employed in Local Government or in procurement, public servants and police officers. 

a case in point

David Luke Cottrell and NSW Police [2017] NSWIRComm1030 is a recent example of a breach of a Code of Conduct by a police officer, which ultimately resulted in his dismissal. Constable Cottrell was dismissed from his position after he received payments for tipping off a local tow truck driver about the location of motor vehicle accidents. In essence, Constable Cottrell was passing on confidential information and in doing so, directly created a conflict of interest for himself, and also provided an unfair commercial advantage to the tow truck operator. 

Given that by the very nature of their work, police officers ought to be paragons of moral behaviour, this arrangement clearly breached appropriate professional ethics. This was notwithstanding the police officer's argument in response to his dismissal that he was trying to be 'effective' by clearing accident sites and did not realise that the leaked information was controversial. 

Ultimately, it was held that he had breached the appropriate Code of Conduct by failing to meet the expected high standards of behaviour of a police officer, and did not appreciate the gravity of his misconduct, failed to protect the confidentiality of information and did not carry out his duties impartially.

Determining whether a breach has occurred

Conflicts of interest and inappropriate behaviour can occur inadvertently, and are not always a result of intentional wrongdoing. For this reason, it's important that Codes of Conduct are effectively communicated to staff, and that the penalties for breaches of the code are clearly defined. 

If you suspect that one of your employees may have breached an applicable Code of Conduct, it will become necessary for you to conduct a workplace investigation. WISE Workplace can provide full or supported investigation services to assist you in determining whether any breaches have occurred. 

To find out more about professional distance and conflicts of interest, check out our series on this topic. 

Professional Distance and Conflict of Interest at Work

Vince Scopelliti - Wednesday, September 20, 2017

During the seventies and eighties, organisations started to realise that the improper use of power and authority and undeclared and/or ineffectively managed conflicts of interest, posed a significant risk to their integrity and public trust. 

The requirement for ethical business dealings focuses the spotlight on conflicts of interests and the factors involved in creating the perception of conflicts of interest in the workplace. 

It can be difficult to maintain a suitable professional distance with colleagues, subordinates and suppliers, particularly if a significant friendships have been formed outside the workplace. There is an increased risk when managers, employees and co-workers communicate on social media. Employers must also be vigilant about the risks of inappropriate levels of professional distance with clients or colleagues, especially in circumstances where such behaviour may lead to, or can be perceived as, grooming of vulnerable persons. 

When it comes to conflicts of interest, it is best to completely avoid any behaviour, which may result in the creation of a real or perceived conflict of interest. For this reason, many professions address this specifically in their Codes of Conduct or may draft specific conflict of interest policies, which set out expected and appropriate standards of behaviour. 

In our planned six-part series we'll unpack the key elements of professional distance and conflict of interest, from maintaining professional boundaries to determining the difference between a lapse of judgement and grooming. 

breaching professional boundaries   

According to Dr. Anna Corbo Crehan, from the Centre for Applied Philosophy and Public Ethics at the University of Melbourne, questions of professional distance occur when two or more people involved in a professional relationship also have an additional relationship, such as one based on love, attraction, friendship or family. "So then, professional distance is the space a professional must keep between their professional relationship with another, and any other relationship they have with that person. By keeping this space, a professional can fulfil their professional and personal obligations, and be seen to do so, in a way that is impartial and/or non-exploitative in regard to the other in the relationship", she says. 

Breaching professional boundaries can also refer to the failure to manage conflicts of interest. A particularly close relationship between co-workers, especially those involving persons in a position of authority, may create the perception (whether real or imagined) of inappropriate work-related benefits or advantages being bestowed on a close associate because of the friendship. 

The most common types of conflict of interest are financial, such as where a monetary advantage is bestowed or a financial saving made, and personal, where a clear benefit is provided to the recipient such as a promotion or an opportunity for advancement or training and development. 

The best way to avoid perceived conflicts of interest is by maintaining clear professional boundaries, especially by those in a position of power, such as employers, supervisors, managers, or instructors. In extreme circumstances it may be prudent to completely avoid forming any relationships with colleagues outside of work.

codes of conduct and different professions 

Many professions abide by specific Codes of Conduct, which set out and govern acceptable standards of behaviour in their specific industry and provide comprehensive guidelines as to what is considered appropriately maintained levels of professional distance in that industry. 

For example, an inappropriate level of closeness may mean one thing in the context of a school teacher, and another thing in the context of a physical therapist. Professions such as nursing, teaching and social work need to have an additional emphasis on protecting vulnerable persons (such as children, the elderly, the disabled, of the mentally ill) from unscrupulous persons of the effects of inappropriately close relationships. 

In other professions, such as aged care or legal services, it is vital that professional distance is maintained to avoid any perception (whether actual or imagined) of financial abuse and conflicts of interest, when a client confers excessive financial benefits on the service provider. 

One recent example of a breach of an industry specific Code of Conduct involved a police officer who sold confidential information and provided accident locations to a tow truck driver, who gained a financial advantage from arriving on the scene ahead of competitors. 

On many occasions, a failure to maintain an appropriate professional distance occurs inadvertently or without any intentional wrongdoing. While it is beneficial for colleagues to develop good relationships with their co-workers, it is important for all employees to be able to maintain a perception of professional distance so that it does not appear as though they are incapable of making impartial business related decisions. 

professional distance and social media 

In the modern workplace, social media has become a virtually omnipresent phenomenon. With the advent of many different types of social media platforms, including LinkedIn and Facebook, there are many opportunities for workers to remain connected. 

Most employers recognise that social media is a platform that is both complimentary to, and additional to, other methods of communication and engagement used by them. Most employers also understand the beneficial networking functions of social media, particularly in the case of LinkedIn, however there is a far greater risk of boundaries being crossed or lines being blurred when communicating through social media. 

There can be particular difficulties in utilising social media when dealing with vulnerable people such as students, the disabled or persons with mental health issues. As a general rule, it is inappropriate for work colleagues or employers to share overly personal information or material on social media. Most workplaces have a clearly set-out social media policy. It is important that employees are made aware of its contents and application and are encouraged to use social media in a responsible, reasonable and ethical manner, in accordance with the employer's Code of Conduct. 

Broadly, if content is critical of a colleague, affects his/her reputation, is personal, hurtful, potentially embarrassing to a co-worker, or otherwise inappropriate, it could easily breach the requirements of professional distance.   

determining grooming, or an error of judgement. 

An important aspect of maintaining professional distance involves taking steps to avoid situations where it could be perceived that 'grooming' is taking place. This is essential not just in the context of children, but other people who are deemed to be vulnerable, including the elderly, those with disabilities, or those involved in situations where there is a power imbalance. 

The act of grooming is a criminal offence in many Australian states. It is a term which generally refers to deliberate and sustained contact with a vulnerable person in order to obtain their trust and prepare them to participate in the groomer's intended purpose, which may be sexually, financially or otherwise motivated. 

As a responsible employer, if somebody reports concerns about potential grooming, or you observe the possibility of such behaviour occurring, it is important that a workplace investigation is conducted to determine whether the contact is in fact grooming, or merely represents a lapse in judgement.

Dealing with a breach of boundaries 

The best litmus test when assessing appropriate levels of professional distance between managers and employees, between co-workers or between employees and clients, is whether there could, in the view of a reasonable person, be a perception of inappropriate behaviour, conflict of interest, favouritism, nepotism, or even grooming. 

If there is any possibility that such assumptions could be made, then it is likely that professional boundaries are being crossed. 

If you have doubts regarding a potential conflict of interest or breach of professional distance, then it is best to get an impartial third party to investigate. Our services include full and supported workplace investigations and training. Contact WISE Workplace today to find out how we can best be of assistance.

ACT Launches Reportable Conduct Scheme

Harriet Witchell - Wednesday, June 07, 2017

If there's one thing that's been made clear from the recent Royal Commission, it's that the protection of children and the reporting procedures around child abuse need to be improved. 

In August 2016, largely in response to the commission, the ACT Government passed legislation designed to cast a 'wider net' when it comes to the scrutiny of child abuse and the protection of children within certain organisations.

The ACT Reportable Conduct Scheme will take effect from July 1 2017. The scheme is designed to ensure that there are processes in place for allegations of employee abuse of children, and that these allegations are independently reviewed. 

In essence, it provides a mechanism for employers to report employee misconduct in relation to children, with the ACT Ombudsman acting in the role of independent oversight body.   

WHICH EMPLOYERS DOES THIS APPLY TO?

Certain types of employers that work with children will be covered under the scheme, including health service providers, foster care and out-of-home services, residential care providers, schools and educational services. 

In general, religious organisations (other than schools), instructional services (such as teachers of sports and music), scouts/guides and universities will not be included under the scheme. 

The term 'employee' in this instance refers not only to workers but also to contractors and volunteers within the relevant organisation, whether or not they work directly with children. This means conduct may be reported even if it is of a personal and non-professional nature.  

WHAT ABOUT OTHER REPORTING PROCESSES? 

It's important to be aware that the scheme will not override other reporting obligations - such as that of suspected crime to the police, or mandatory reporting of serious abuse or neglect of children to the Child and Youth Protection Services (CYPS). However, it does cover a wider range of behaviours in relation to children, and also provides a mechanism for employers to report conduct not covered under other mandatory reporting programs. 

WHAT EMPLOYERS NEED TO DO

ACT employers covered by the scheme will need to notify the Ombudsman within 30 days of suspected or actual misconduct by an employee in relation to children. These acts of misconduct include neglect, mistreatment, psychological harm, sexual misconduct or inappropriate discipline. 

Employers will also need to:  

  • Perform investigations into alleged reportable conduct and provide a written report to the Ombudsman. 
  • Report to other bodies as required - including the police, the human rights commission, CYPS and others. 
  • Review and amend their organisational policies and procedures where necessary.
  • Inform and educate employees regarding any new or amended policies and responsibilities. 

THE OMBUDSMAN'S ROLE

The scheme is designed to go beyond just reporting misconduct. For instance, the Ombudsman's role in regard to this is also to monitor and analyse trends, share information with other authorities as required, provide guidance to organisations regarding child protection, and monitor the practices of employers in relation to child safety and prevention of abuse.

WHERE TO FROM HERE?

WISE Workplace provides independent investigation services for organisations into reportable conduct, and training on how to respond and investigate allegations. 

Information Sharing and Child Abuse - A Continuing Issue

Harriet Witchell - Wednesday, March 23, 2016

 

This month the NSW Ombudsman hosted a forum reflecting on the past 16 years of Reportable Conduct legislation in NSW.

With over 800 attendees, the gathering represented an exceptional group of people with a wealth of expertise in this sensitive and tricky area.

Key messages from the group included the need for:

  • Improvements in information sharing between agencies
  • Widening the legislation to include sporting groups and religious orders
  • A national Working With Children check system, rather than state based
  • A national register for the suitability of employment with children
  • Greater protection for the disabled

The resounding need to make the system work better and provide comprehensive protection for all Australian children was

a national system of information sharing and

actual practical information sharing between agencies

WHAT WAS THE PROBLEM IDENTIFIEd?
Privacy legislation requires that organisations do not share personnel records. Whilst steps have been taken to enable information sharing between agencies in NSW these only apply where a current risk exists to children, and they remain inadequate and slow.

Name changes, spelling errors, data entry, human error and overwhelming fear of breaching the privacy act seem to be the main causes of a lack of information sharing particularly by the larger agencies such as the Police and Family and Community Services.

providing information to policE

Currently organisations are expected to make reports to police of any suspected child abuse or Reportable Conduct.  The police, however, are not so good at returning the favour when agencies are trying to investigate non-criminal reportable conduct of their own.

What do the police do with your information?

  •  Police will receive information about a crime but they won’t give it out (Privacy restrictions)
  •  Police won’t necessarily act on the information provided
  • With no formal complaint from the victim, police won’t act
  •  With no likelihood of a conviction police won’t necessarily investigate
So if your victim is non-verbal, young, disadvantaged, unsupported, suffering from metal illness, has behavioural difficulties or has low self-esteem, their complaint may not be investigated.

In fact, if your victim has all the characteristics of a child likely to become the target of a paedophile, they are less likely to be successful in a criminal prosecution.  This is no coincidence.

This is why the legislation on reportable conduct is so important. By extending the definitions of acceptable behaviour of people who work with children and lowering the standard of proof - early patterns of behaviour known to be linked to serious sexual offending such as grooming and breaching professional boundaries  can be identified and individuals can be permanently barred from working with children – in NSW.

This legislation ensures  the protection of many times more children than the criminal justice system and actually prevents offenders having access to children.

 

In many ways it is far superior to the criminal justice system

in providing actual protection and preventing abuse.

 

Under the criminal justice system, child abuse remains difficult to prosecute and difficult to convict.  It is unnecessarily burdensome on the victims of abuse putting them through protracted and distressing criminal trials and appeal processes.

The NSW forum presented compelling arguments for the need for improved information sharing between all agencies in addition to not just a state based criminal records check but a national one and a national register of suitability to work with children.

There are high expectations that the Royal Commission into Institutional response to Child Sexual Abuse will recommend Australia wide legislation similar to that in NSW.  Let’s hope it is a seamless system that stops people slipping through the cracks!

If you have a workplace complaint and you're not sure how you should respond to it, or you would like to discuss how we can help build capacity within your organisation to respond to complaints  - WISE Workplace provides high quality specialist investigators to conduct workplace related investigations into abuse of children, people with a disability and the elderly. We have been working with Reportable Conduct legislation since it’s inception in 2001. Call us to discuss how our services may be able to help your organisation develop a response and systems that protect your clients.  Give us a call on 1300 580 685.

For more guidance on your obligations to report and respond to incidents of child abuse, The Institute of Community Directors Australia produced this excellent Child Protection Toolkit in January 2016 to assist not for profit agencies.

 

Link to toolkit.


Spotting the difference between flirtatious behaviour and criminal sexual conduct at work

Harriet Witchell - Tuesday, October 15, 2013

What is “sexting”?

“Sexting”, (the creation, possession and transmission of sexually suggestive or explicit messages or images), is all the rage with seemingly even the most conservative of your employees potentially drawn into seductive messaging over their phones.

However, employers who employ young people may need to consider the potential criminal ramifications when they are handling sexual harassment complaints or managing inter employee relationships.

Across Australia, the general age of consent for sexual activity is 16 years old, in some circumstances, and in relation to child pornography, that age is 18.

Grooming, which could include “sexting”, is behaviour that might be viewed as just flirting between colleagues, but may actually mask predatory sexual activity that constitutes a serious risk to employers and young employees.

If you employ young people or children under the age of 18, or have children in your workplace, you might want to watch out for potential grooming behaviour or child pornography offenses, to keep these young people safe.

With the everyday use of mobile devices to communicate, and with ready access to photo apps, the temptation for young people to send off a suggestive image, seems too great for some.

However the definition of child pornography incorporates material that depicts a person who is, or appears to be, under 18 years old in any images of sexual organs, including breasts in a sexual pose or sexual activity.

An offence can also be committed, for example, if a 19-year-old texts an image of her naked breasts to her boyfriend, where the girl’s 16-year-old sister sits next to her.

The criminal law relating to “sexting” was reviewed in 2012 by the Victorian Law reform committee.

This review considered the application of recently introduced Commonwealth legislation into the use of carriage devices (phone and computers, tablets etc.) to send or possess child pornography.  Similar legislation exists in each state making it a crime to use a carriage device to send or possess pornographic images or for the purpose of grooming.

What is grooming?

Grooming is used to describe any behaviour used by an adult for the purpose of developing a sexual relationship or engaging in sexual acts with, or in the presence of a child, or other children.

Typical behaviour includes giving special gifts or paying undue attention to a child or young person. This behaviour doesn't need to happen whilst the two are in each other's company; Facebook, chat rooms and email all are fertile ground for flirtatious behaviour and the gentle introduction of sexual conversations – “sexting”.

If two young people are close in age, but straddle the adult/child legal definition with no special relationship, there may be less concern for such conduct where both parties appear to consent. But employers and parents should be aware of possible criminal and manipulative nature of this behaviour.

Where the age gap widens, where the adult repeats the behaviour with a number of children, or there is a special relationship at play, the conduct has serious criminal ramifications: the criminal charges of grooming can result in 15 years imprisonment!

How can grooming affect you?

If your workplace deals with children’s issues, you will be familiar with the issue of grooming, but have you considered that employees could be guilty of grooming other staff members, not just the children they are employed to look after?

Grooming can be committed by any adult against any person under the age of 16 years, 18 if there is a special relationship between the two such as teacher/ pupil, client/counselor, manager/trainee etc.

**In August this year, the NSW ombudsman updated the definitions of reportable conduct (conduct reportable to the Ombudsman where the offender is in child-related employment).