On 1 June 2022, Division 11B was inserted into the Criminal Law Consolidation Act 1935 (SA).Specific criminal offences now exist in relation to failing to report or protecting a child from institutional and out of home care child sexual abuse [ss 64A, 65].

Definitions

For the purposes of the two offences, the definitions are outlined in section 64 of the Criminal Law Consolidation Act 1935 (SA), and are defined below.

Institution means an entity (whether private or public) that operates facilities or provides services to children who are in the care, or under the supervision or control, of the institution and includes (without limitation) medical and religious institutions and any services or functions provided by persons as part of the duties of a medical practitioner or of a religious or spiritual vocation; or an entity of a class prescribed by the regulations [s 64].

Out of home care means care provided to a child where:

any other care of a kind declared by the regulations to be included in the ambit of this definition.

Sexual abuse of a child includes any unlawful conduct of a sexual nature committed to, or in relation to, a child.

A prescribed person means an adult who:

Failure to report suspected child sexual abuse

A prescribed person is guilty of an offence if the person knows, suspects or should have suspected that another person (the abuser):

and the prescribed person refuses or fails to report that to the police.

Maximum penalty: 3 years imprisonment

[Criminal Law Consolidation Act 1935 (SA) s 64A(1)]

The defendant should have suspected that another person has engaged is engaging or is likely to engage in sexual abuse of a child if a reasonable person in the defendant's circumstances would have held the relevant suspicion and the defendant's failure to hold that suspicion, if judged by the standard appropriate to reasonable person in the position, amounts to criminal negligence [s 64A(2)].

A prescribed person may be guilty of an offence under this section in respect of any knowledge, suspicion, or circumstances in which they should have held a suspicion, occurring before 1 June 2022, but in such a case the person will not be guilty of the offence unless:

[s 64(3)]

It is a defence to a charge of an offence under this section if the defendant had a reasonable excuse for the refusal or failure to report [s 64A(4)]. Without limiting the circumstances in which a person might be found to have had a reasonable excuse for a refusal or failure to report, a person will be taken to have had a reasonable excuse if the person refused or failed to report the matter to the police because the person believed on reasonable grounds that the matter had already been reported to the police or had been reported under Chapter 5 Part 1 of the Children and Young People (Safety) Act 2017 (SA) [s 64A(5)]. See further Notification Requirements.

If a prescribed person reports a matter to the police, in good faith, believing that the report was required under this section, no civil or criminal liability lies against the person for making the report. Additionally, the person cannot be held to have breached any code of professional etiquette or ethics, or to have departed from any acceptable form of professional conduct, for making the report [s 64A(6)].

Sections 163 (other than section 163(1)(ab)) and 165 of the Children and Young People (Safety) Act 2017 (SA) apply in relation to a prescribed person who reports a matter to the police under this section as if they had provided the information under Chapter 5 Part 1 of that Act [s 64A(7)]. See further Notification Requirements.

Failure to protect child from sexual abuse

A prescribed person is guilty of an offence if:

Maximum penalty: 15 years imprisonment.

[Criminal Law Consolidation Act 1935 (SA) s 65(1)]

It is not necessary for the prosecution to prove that sexual abuse of a child occurred to make out an offence against section 65(1) [s 65(2)].

For the purposes of section 65, a person is in a position of authority in relation to a person under the age of 18 years (the child) if the person [s 65(3)(a-i)]: