Grooming, or an Error in Judgment?

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.

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.