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Issues in mandatory reporting of child sexual abuse by Australian teachers

Mathews, Benjamin P. & Walsh, Kerryann M. (2004) Issues in mandatory reporting of child sexual abuse by Australian teachers. Australia and New Zealand Journal of Law and Education, 9(2), pp. 3-17.

Abstract

In 2000, a former student successfully sued the State of Victoria for the failure by a government school principal and deputy principal to report what was found should have amounted to a reasonable suspicion that the child had been and was being sexually abused (AB v Victoria, 2000;1 Briggs & Potter, 2004). The action was in negligence, with the failure to report occurring in 1991-92, before the introduction of legislation in Victoria in 1993 which compelled teachers to report suspected child sexual abuse. The student was awarded $494,000 in damages for the contribution of the failure to report to her subsequent suffering of abuse by her stepfather and consequential injury. In 2001, the High Court of Australia delivered judgment in Sullivan v Moody; Thompson v Connon,2 two cases heard together, with each involving an inaccurate report made by a mandated reporter of child sexual abuse. The court upheld the principle that a person who possesses a statutory duty to report a reasonable suspicion of child sexual abuse and who makes an inaccurate report in fulfilling that duty, owes no tortious duty of care to persons who may be wrongly suspected of being the source of the incorrectly alleged harm, and therefore cannot be liable in negligence.These two cases illustrate parts of the legal context surrounding the detection and reporting of suspected child sexual abuse. Common law principles and statutory reporting obligations requiring members of certain professional groups to report knowledge and 'reasonable suspicion' of child sexual abuse are predicated on fulfilling a duty of care to avoid damage, and the desire for accurate reports of child sexual abuse by professionals who are well-placed and legally compelled to report it, with this desire being motivated by goals of crime prevention, health enhancement, and the saving of future economic cost to the individual, society and the state.However, the factual postscripts of the reports made in Sullivan and Thompson evince one of the main tensions in mandatory reporting laws. In Sullivan, the suspicion of child sexual abuse was formed by a doctor and a psychiatric social worker. The social worker made the report, and the child’s father came under suspicion as the perpetrator. The report was later found to be inaccurate and criminal charges against the father were dropped. The allegation, pursued in Family Court proceedings against the father, was also resolved in his favour. As a result of the report and events surrounding it, the child’s father suffered severe consequences: his marriage broke down, and he allegedly suffered shock, distress, psychiatric injury and personal and financial loss. In Thompson, the initial report of child sexual abuse was made by a medical practitioner and was concurred with by government community welfare investigators. Police charged Mr Thompson with sexual Ben Mathews & Kerryann WalshQueensland University of Technology, Brisbane, Australia1327-7634 Vol 9, No 2, 2004, pp. 3-17Australia & New Zealand Journal of Law & Education Ben Mathews & Kerryann Walsh4offences but these charges were later dropped. As a consequence of this series of events, Mr Thompson suffered shock, distress, psychiatric injury and personal and financial loss.The tension is therefore between mandated reporters’ failure to report deserving cases (underreporting), and their inaccurate reporting of undeserving cases (overreporting). With the exceptions of Western Australia and Queensland, laws in all Australian jurisdictions compel members of multiple professional groups to report all forms of child abuse. In these jurisdictions, members of the teaching profession form one of these professional groups, and their obligation to report extends to cases of reasonably suspected child sexual abuse.The question that arises here is: how does this fundamental tension play out in the context of teachers' reporting of child sexual abuse? While there is ongoing debate about the justifiability of mandatory reporting legislation (Ainsworth, 2002; Harries & Clare, 2002; Mathews & Walsh, 2004), it is not the purpose of this article to add directly to that debate. Rather, this article proceeds from the basis that, while there are three different statutory models in Australia, legal frameworks do exist for the reporting by teachers of child sexual abuse in all jurisdictions, yet there remain crucial questions about whether these laws work in practice, which legal provisions are effective or ineffective, and why.The main function of this article is therefore to identify existing gaps in the empirical research that need to be filled to provide a thorough assessment of the different Australian legislative provisions and to provide assessments of teacher preparation and practice throughout Australia. This article will first describe the relevant context by synthesising the major rationales for mandatory reporting legislation, drawing together recent evidence confirming the incidence and multiple adverse effects of child sexual abuse, and summarising the main reasons mandatory teacher reporting obligations are opposed. The article will then contribute to the knowledge base by articulating the statutory legal obligations of teachers in every Australian jurisdiction, before identifying some of the most important gaps in the research literature in this field. It will be seen that these gaps impede the evidence-based design of both the most effective legislative technique for mandatory reporting by teachers of child sexual abuse, and of the most efficient methods of teacher training and preparation to meet legal reporting obligations. Arguably, these gaps in the evidence base are not only producing significant costs to children enduring sexual abuse which could be interrupted, but are also contributing to individuals being wrongly accused of abuse, and the significant waste of state resources.

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ID Code: 2688
Item Type: Journal Article
Additional URLs:
Keywords: child protection, legislation, teachers, mandatory reporting, child abuse
ISSN: 1327-7634
Divisions: Current > QUT Faculties and Divisions > Faculty of Education
Current > QUT Faculties and Divisions > Faculty of Law
Current > Schools > School of Early Childhood
Current > Schools > School of Law
Copyright Owner: Copyright 2004 Australia and New Zealand Education Law Association
Copyright Statement: Reproduced with permission in accordance with the copyright policy of the publisher.
Deposited On: 21 Nov 2005
Last Modified: 29 Feb 2012 23:07

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