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Failure to disclose offence

Reporting child sexual abuse is a community-wide responsibility. Accordingly, a new criminal offence has been created in Victoria that imposes a clear legal duty upon all adults to report information about child sexual abuse to police.

Any adult who forms a reasonable belief that a sexual offence has been committed by an adult against a child under 16 has an obligation to report that information to police. Failure to disclose the information to police is a criminal offence.

For information about how the offence may affect the reporting obligations of organisations funded by the Department of Human Services, download the factsheet from the Department of Human Services website (External link)


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What is a ‘reasonable belief’?

A ‘reasonable belief’ is not the same as having proof. A ‘reasonable belief’ is formed if a reasonable person in the same position would have formed the belief on the same grounds.

For example, a ‘reasonable belief’ might be formed when:

  • a child states that they have been sexually abused
  • a child states that they know someone who has been sexually abused (sometimes the child may be talking about themselves)
  • someone who knows a child states that the child has been sexually abused
  • professional observations of the child’s behaviour or development leads a mandated professional to form a belief that the child has been sexually abused
  • signs of sexual abuse leads to a belief that the child has been sexually abused.

Are there any excuses for not reporting child sexual abuse to police?

A person will not be guilty of the offence if he or she has a reasonable excuse for not disclosing the information. A reasonable excuse includes:

  • fear for safety
  • where the information has already been disclosed.

Fear for safety

A reasonable excuse exists in cases where a person has a reasonable fear for their own safety or the safety of another person (such as a child or another family member) and they do not report to police due to those circumstances.

This defence may apply, for example, if a mother decides not to disclose information about her partner sexually abusing her child due to fear of violence to her or her child.

The person’s fear must be subjectively reasonable, that is, it must be reasonable from the perspective of that person in those circumstances. This recognises that the person in question is best placed to judge whether their safety is in danger.  

The court or jury will consider whether it was reasonable for the person not to report in the circumstances.

Where the information has already been disclosed

It is a reasonable excuse to not disclose where a person believes on reasonable grounds that the information has already been disclosed to police and they have no further information to add.

An important example of this exception is where the person has already made a report under the mandatory reporting obligation specified in the Children, Youth and Families Act 2005. This obligation requires teachers, doctors and other professionals to report concerns about child welfare to child protection authorities within the Department of Human Services (DHS).

Under the existing mandatory reporting system, DHS already passes on all allegations of child sexual abuse to police, so it will be a reasonable excuse for not reporting to police if a person has made a report to DHS or reasonably believes a report has been made to DHS. This ensures that people are not required to make multiple reports to different agencies.

What is not a reasonable excuse?

A person does not have a reasonable excuse for failing to disclose sexual abuse if they are only concerned for the perceived interests of the perpetrator or any organisation. ‘Perceived interests’ includes reputation, legal liability or financial status.

For example, a principal’s concern for the reputation of a school, or a clergyman’s concern for the reputation of a church where the abuse happened will not be regarded as a reasonable excuse.

Are there any other exemptions to the offence?

There are a number of other exemptions, which include:

  • the victim requests confidentiality
  • the person is a child when they formed a reasonable belief
  • the information would be privileged
  • the information is confidential communication
  • the information is in the public domain
  • where police officers are acting in the course of their duty.

The victim requests confidentiality

The new offence respects the position of a victim who does not want the offending disclosed and who is sufficiently mature to make that judgment. The obligation to report therefore does not apply where the information comes from a person aged 16 or over and this person requests that the offence not be reported. The law recognises that a child under 16 is not able to make this kind of decision and sometimes lacks the capacity to fully understand the effects of abuse.

A person will still be required to disclose information to police if:

  • the victim who requested confidentiality has an intellectual disability, and
  • the victim does not have the capacity to make an informed decision about a disclosure, and
  • the person who received the information is aware or should be reasonably aware of those facts.

The person is a child when they formed a reasonable belief

If a person was under the age of 18 when they formed a reasonable belief, they will not be obliged to make a disclosure when they turn 18. This protects children from the burden of knowing that they will have to disclose to police when they turn 18.

The information would be privileged

People will not be required to disclose where the information would be privileged. This includes:

  • client legal privilege
  • journalist privilege
  • religious confessions.

For example, if a priest obtains information made in good faith through a rite of confession, (as long as the admission is not given for a criminal purpose) the priest is exempt from disclosing.

The information is confidential communication

A registered medical practitioner or counsellor is not required to disclose information to police if the information is obtained from a child whilst providing treatment and assistance to that child in relation to sexual abuse.  However, under the mandatory reporting obligations, a registered medical practitioner would still be required to report to DHS if they form a reasonable belief that a child has been sexually abused and is in need of protection. This exemption is not designed to prevent the reporting of child sexual abuse, but rather to protect the registered medical practitioner or counsellor from criminal liability.

If an adult provides information to a medical practitioner or counsellor regarding the sexual abuse of a child, the medical practitioner or counsellor would be required to disclose that information to police unless another exemption applies.

The information is in the public domain

A person does not have to disclose to police if they get the information through the public domain, or form the belief solely from information in the public domain such as television or radio reports.

Where police officers are acting in the course of their duties

A police officer, acting in the course of their duty in respect of the victim of sexual abuse is exempt from the offence.

If it is going to be compulsory for everyone to report child sexual abuse, why are there exemptions?

We need to ensure that in creating this legal obligation, we do not put children and their families at even greater risk of harm, especially those who may be experiencing family violence.  

Won’t child sexual abuse continue to occur if exemptions are allowed?

There is currently no requirement for people to report child sexual abuse to police, so introducing this new legal obligation is a big step towards preventing child sexual abuse in our community and ensuring people understand that it is a community-wide responsibility.

Certain exemptions are required to avoid any unintended consequences of this new obligation. It is not intended, for example, that this offence criminalise victims of family violence who don’t report due to fear for their own or someone else’s safety.

For example, women in family violence situations may have a reasonable fear for the safety of their child or another family member, especially in cases where threats have already been made. They may fear that making a report to police will escalate the situation, putting their child or another family member at even greater risk of harm or even death.

Preventing the sexual abuse of children is a community responsibility. Other people connected with the child will still be required to make a report, unless they have a reasonable excuse not to do so.

Won’t this offence discourage people from seeking help where they have experienced child sexual abuse?

The law will not require a medical practitioner or counsellor to disclose information to police when it has been obtained from a victim during treatment for sexual abuse.

Disclosures for the purpose of obtaining legal advice will also be protected by client legal privilege. There are also other exemptions which have been listed above.

The offence requires ‘any adult’ to report suspected child sexual abuse. Isn’t this too broad? Won’t it lead to people reporting unfounded suspicions?

The offence requires a person to report to police where they have information that leads them to form a ‘reasonable belief’ that a sexual offence has been committed against a child under 16. Under the offence, people will not be expected to disclose unfounded suspicions as a suspicion does not constitute a ‘reasonable belief’.

The failure to disclose offence is a big step towards preventing child sexual abuse in our community and ensuring people understand that protecting children and preventing sexual abuse is a community-wide responsibility.

How will I be protected if I make a disclosure to police?

Your identity will remain confidential unless:

  • you disclose it yourself or you consent in writing to your identity being disclosed
  • a court or tribunal decides that it is necessary in the interests of justice for your identity to be disclosed.

Will any person who knows of child sexual abuse happening in the past be required to report?

A person who knows of child sexual abuse occurring in the past will not have to report to police unless the victim is still a child when the offence comes into effect.

What is the penalty for failing to disclose child sexual abuse? 

The maximum penalty is three years imprisonment.

When will the failure to disclose offence take effect?

The offence commenced on 27 October 2014.

How do I contact Victoria Police to make a report?

If you want to report a child in immediate risk or danger of sexual abuse please call triple Zero (000) (External link)
Alternatively, you can contact your local police station (External link)

If you or someone you know has experienced child sexual abuse in an institutional context, we encourage you to contact Victoria Police's Sano Taskforce via email sanotaskforce@police.vic.gov.au

 

 

The creation of this offence was recommended in the Betrayal of Trust report.

 

 

 

Document information

Author: Department of Justice
Publisher: Department of Justice
Date of Publication: 2014
Copyright: State of Victoria, 2014

 

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