Aboriginal Child Sexual Assault Taskforce – LITERATURE REVIEW
August 2005
INDEX
Introduction ................................................................................................................ 3
1. PREVALENCE OF ABORIGINAL CHILD SEXUAL ASSAULT ........................... 5
Reporting .............................................................................................................. 10
2. CAUSES OF ABORIGINAL CHILD SEXUAL ASSAULT .................................. 11
3. CONSEQUENCES OF ABORIGINAL CHILD SEXUAL ASSAULT ................... 15
4. OVERVIEW OF FAMILY VIOLENCE: CAUSALITY, PERVASIVENESS AND
PREVALENCE ......................................................................................................... 18
5. CONSEQUENCES/IMPACT OF FAMILY VIOLENCE ...................................... 29
6. RESPONSES TO CHILD SEXUAL ASSAULT .................................................. 31
A. GOVERNMENT RESPONSES...................................................................... 31
NSW DEPARTMENT OF HEALTH ................................................................... 31
DEPARTMENT OF COMMUNITY SERVICES ................................................. 34
DEPARTMENT OF HOUSING .......................................................................... 37
NSW POLICE DEPARTMENT .......................................................................... 38
DPP PROSECUTIONS ..................................................................................... 41
DEPARTMENT OF CORRECTIVE SERVICES ................................................ 44
DEPARTMENT OF JUVENILE JUSTICE ......................................................... 46
NSW ATTORNEY GENERALS DEPARTMENT ............................................... 49
DEPARTMENT OF EDUCATION AND TRAINING ........................................... 51
DEPARTMENT OF ABORIGINAL AFFAIRS .................................................... 52
JUDICIAL COMMISSION OF NSW .................................................................. 54
OMBUDSMAN .................................................................................................. 55
OFFICE OF THE CHILDREN’S GUARDIAN .................................................... 56
COMMISSION FOR CHILDREN AND YOUNG PEOPLE ................................. 56
COURTS (ADULT/JUVENILE) .......................................................................... 57
B. NON-GOVERNMENTAL SERVICE PROVIDERS ......................................... 60
NCOSS ............................................................................................................. 60
EDUCATION CENTRE AGAINST VIOLENCE.................................................. 61
NATIONAL ASSOCIATION OF SERVICES AGAINST SEXUAL VIOLENCE,
CASA HOUSE, MELBOURNE. ......................................................................... 61
NATIONAL CHILD PROTECTION CLEARINGHOUSE .................................... 62
NACCHO .......................................................................................................... 62
SNAICC ............................................................................................................ 63
ABORIGINAL LEGAL SERVICES..................................................................... 64
Wirringa Baiya Aboriginal Women’s Legal Centre - Fact Sheet at
http://wirringabaiya.org.au/Information/Factsheets/Sexual%20Assault ............. 64
C.
INTERNATIONAL RESPONSES ............................................................... 64
UN STANDARD SETTING ................................................................................ 64
GOVERNMENT REPORTING TO THE UNITED NATIONS ............................. 67
7. OTHER AUSTRALIAN AND INTERNATIONAL LITERATURE ......................... 70
AUSTRALIA .......................................................................................................... 70
PUBLISHED ACADEMIC LITERATURE ........................................................... 71
1
PUBLISHED INDEPENDENT AND GOVERNMENT INQUIRY REPORTS ...... 75
INTERNATIONAL LITERATURE ............................................................................. 79
CANADA ............................................................................................................... 81
NEW ZEALAND .................................................................................................... 85
UNITED STATES ................................................................................................. 87
UNITED KINGDOM .............................................................................................. 93
2
ABORIGINAL CHILD SEXUAL ASSAULT TASKFORCE
REVIEW OF THE LITERATURE
Introduction
The Aboriginal Child Sexual Assault Taskforce (ACSAT) was established to consult
widely with Aboriginal communities, community based services and government
departments about child sexual assault within Aboriginal communities. Based on
research and community knowledge, through submissions and consultations,
ACSAT will specifically propose a number of key recommendations aimed at
reducing the incidence of child sexual assault and at improving the way its managed
by services providers, when it does occur. ACSAT will produce a report, which will
give key recommendations to the Attorney General in October 2005.
This review of literature on child sexual assault and family violence in Indigenous
communities has been collated with the intention of informing and guiding the report
for the Attorney General. In order to understand the issues surrounding child sexual
assault and to reflect this understanding in the context of the report, a
comprehensive review of both Australian and International literature (where relevant)
pertaining to Indigenous communities overseas has been developed.
The terms of reference of the Aboriginal Child Sexual Assault Taskforce drove the
review of literature, those being;
1.
Examine how State Government agencies respond to evidence of child
sexual abuse that may be occurring in Aboriginal communities generally;
particularly the barriers and capacity of agencies to address the issue of
sexual violence in Aboriginal communities;
2.
Identify key areas to be addressed by Government in it’s response to the
incidents of child sexual abuse;
3.
Examine how family violence impacts on/or contributes to child sexual abuse
in Aboriginal communities;
3
4.
Propose measures to assist Aboriginal communities to develop their
governance and economic capacity;
5.
Recommend practical solutions for addressing incidents of sexual abuse in
Aboriginal
communities,
including
any
necessary
legislative
and
administrative measures;
6.
Comment on the possible adaptation of alternate sentencing and restorative
justice processes as an adjunct to the criminal justice system;
7.
Examine how non-government organisations respond to child sexual abuse;
8.
Propose safety and support measures for children reporting abuse.
The Taskforce is to consult widely, including with representatives of Aboriginal
communities, youth, health services, children services, counselling services and
related organisations.
The Taskforce is to consider national and international programs developed to
address sexual abuse in Indigenous communities.
On the basis of this, the literature review provides an overview of the relevant
research material that has informed the Aboriginal Child Sexual Assault inquiry and
the ensuing report. Please note that the review is living document and will be
updated accordingly.
4
1.
PREVALENCE OF ABORIGINAL CHILD SEXUAL ASSAULT
Keel, M. (2003) Family violence and sexual assault in Indigenous communities
“Walking the talk” Australian Centre for the Study of Sexual Assault.
This Briefing Paper provides an overview of the key issues and findings from recent
reports and research into family violence and sexual assault in Indigenous
communities. Four sexual assault workers across the country also spoke to ACSSA
about what is happening in their service areas to address sexual assault in
Indigenous communities. An overview of the state and federal governments’ policies
and reports into family violence are provided in an annotated bibliography. The
author states that this overview is not intended as a comprehensive or definitive
review of policy statements, nor is it an attempt to assess or evaluate the impact of
individual policy documents on Indigenous communities. Rather, it is intended to
assist both Indigenous and non-Indigenous workers to navigate the issues identified
in some of the key policy documents and areas of research.
In terms of the prevalence of child sexual assault Keel cites Lievore’s recent
literature review of available statistics on reported and unreported sexual assaults,
‘anecdotal evidence, case studies and submissions to inquiries support the
assumption that sexual violence in Indigenous communities occurs at rates that far
exceed those for non- Indigenous Australians’.” (Lievore 2003: 56 at p. 2 of Keel)
5
Stanley, J. & Tomison, A.M. & Pocock, J. (2003) “Child abuse and neglect in
Indigenous Australian communities” in Child Abuse Prevention Issues
Number 19 Spring.
This article reports the alarming trend that Indigenous children are significantly overrepresented in most statutory child protection systems. Based on notifications (or
reports) to child protection departments around Australia in 2001-2002, 3,254
Indigenous children under 17 years had some form of abuse substantiated - that is,
the statutory protection authority believed that abuse or neglect had occurred (AIHW
2003). This rate of substantiation was on average 4.3 times higher (for all types of
abuse) in the Indigenous population than in the non-Indigenous population. The rate
varied widely between states, with Victoria and Western Australia having a
substantiation rate nearly eight times higher for Indigenous children than nonIndigenous children. Indigenous children were the subject of proportionately fewer
substantiations for sexual abuse than non-Indigenous children and proportionately
higher substantiations for neglect than non-Indigenous children.
It was noted in the Robertson Report (2000) that “88 per cent of all rapes in
Indigenous communities go unreported. Thus it would appear that the documented
extent of assault in Indigenous communities is just the tip of the iceberg.” (at p.5)
“Once a report is made there may be a number of reasons why the substantiation
rate of sexual abuse is lower for Indigenous than for non-Indigenous children. It is
possible that child protection authorities and other professions with the responsibility
to protect the child are uncertain about what the best response would be, particularly
in the legacy of the ‘stolen generation’ when many Indigenous children were
removed form their family and community. It is also possible that many practitioners
are overwhelmed by the size, complexity and number of problems experienced by
Indigenous communities. Problems created by a lack of resources (such as lack of
appropriate Indigenous substitute carers accessible to the community) may create
uncertainty about what is best for an Indigenous child – remaining with some level of
risk, or facing the adverse impact of cultural dislocation.” (p. 5)
6
“This failure to report and record the abuse and neglect of Indigenous children may
be due to a number of factors. These include shame and fear of experiencing
racism and a fear of reprisal from the perpetrator in small, closed communities, or
pay-back from relatives, as well as fear by some of the police response (Robertson
2000; Aboriginal Women’s Taskforce and the Aboriginal Justice Council 1995).” (at
p. 5)
Child protection Australia 2002–03 Australian Institute of Health and Welfare
(AIHW) 2004, Canberra.
This report is based on the following three national child protection data collections:
child protection notifications, investigations and substantiations children on care and
protection orders children in out-of-home care.
The Australian Institute of Health and Welfare (AIHW) collects these data each year
from the community services departments in each state and territory. Most of the
data in this report cover the 2002–03 financial year, although data on trends in child
protection are also included.
Australian Bureau of Statistics Australian Social Trends: Other Areas of
Concern – Aboriginal and Torres Strait Islander Peoples contact with the law
Most of the data used in this article are drawn from the 2002 National Aboriginal and
Torres Strait Islander Social Survey (NATSISS) which collected data about contact
with law enforcement, victimization and many other social and economic
circumstances such as employment, education and health.
Fitzgerald, F. & Weatherburn, D. (2001) Aboriginal Victimisation and Offending:
The Picture from Police Records, NSW Bureau of Crime and Statistics and
Research, Crime and Justice Statistics Bureau Brief.
This paper documents the extent of over-representation of Aboriginal people among
victims of crime and offenders. Particular attention is paid to offences against
Aboriginal women and children. The data presented show that Aboriginal people are
7
between 2.7 times and 5.2 times more likely than residents of NSW as a whole to
become victims of violent crime. Aboriginal women are between 2.2 times and 6.6
times more likely to become victims of violent offences than NSW women as a
whole. Most violent offending against Aboriginal women and children is committed by
Aboriginal men.
Janet Stanley, Muriel Cadd and Julian Pocock Child Sexual Abuse in
Indigenous Communities Secretariat of National Aboriginal and Islander Child
Care Presented at the Conference, Child Sexual Abuse: Justice Response or
Alternative Resolution, 1-2 May, Adelaide.
“Child protection authority statistics are an underestimate of the actual levels of child
sexual abuse in Australia and it would seem that they are particularly so for
Indigenous children, as other sources tell a very different story. Citing the Gordon
Report (Gordon, Hallahan & Henry 2002) “the rate of child sexual abuse of
Aboriginal children is significantly greater than non-Aboriginal children.” (at p. 2)
Human Rights and Equal Opportunity Commission of Australia (2003)
Submission to the Expert seminar on Indigenous Peoples and the
Administration of Justice, Madrid, Spain, 12-14 November.
The report examines the characteristics of Indigenous women who are imprisoned.
“In general Indigenous women in gaol are slightly younger than non-Indigenous
women. There are no national figures for Indigenous women prisoners with children,
but a majority of incarcerated women are mothers.”
“In NSW in comparison to a non-Indigenous woman, an Aboriginal woman is:
-
More than twice as likely to be the victim of sexual assault, or sexual assault
against children;
-
Four times more likely to be a victim of assault”
Research has identified a strong correlation between imprisonment of Indigenous
women and the experience of sexual assault and separation from family. The impact
8
of alcohol related crime, and increasingly in some jurisdictions, drug related crime
requires further investigation.
T. Libesman & C. Cunneen Report into Substantiated Cases of Emotional
Abuse and Neglect Against Indigenous children in NSW
This report is based on an analysis of the New South Wales Department of
Community Services case files of Indigenous children who were found to be
neglected or emotionally abused in 1996-97. The research was undertaken after the
authors had worked for the National Inquiry into the Separation of Aboriginal and
Torres Strait Islander Children from their Families (NISATSIC 1997). The Inquiry had
identified serious deficiencies in information about contemporary welfare removals of
Indigenous children in Australia.
Data presented to the National Inquiry demonstrated a disproportionately high rate of
Aboriginal and Torres Strait Islander children in contact with child welfare services
compared with other children. The disproportion increased with the severity of
welfare intervention.
While the research specifically identified substantiated cases of neglect and
emotional abuse, many of the files raised issues with respect to identification of and
departmental responses to sexual and physical abuse of children.
“Many children in the file cohort examined are trapped in circumstances where they
experience emotional, physical and sexual abuse as a ‘normal’ aspect of their daily
lives. A lack of long term planning or initiatives to break this pattern of behaviour is
evident. Some files examined had been under the Department’s attention for over a
decade, yet a critical incident approach remained the dominant approach. That
people living in such despair may become frustrated, violent and anti social should
not surprise anyone. That these children should not perceive themselves to have a
meaningful future is also not surprising. A number of young children in the file cohort
have made serious suicide attempts.”
9
Reporting
Bree Cook, Fiona David and Anna Grant (2001)Sexual Violence in Australia
Australian Institute of Criminology Research and Public Policy Series No. 36 at
http://www.aic.gov.au/publications/rpp/36/part5.pdf
This report summarizes what is known about sexual violence in Australia. It is well
documented that sexual violence is a crime overwhelmingly perpetrated by males
against females but within these two groups there is room for considerable variation.
Factors such as age, race, physical or mental impairment, drug and alcohol use,
occupation and prior experiences of victimization are also relevant. As a result,
sexual violence disproportionately affects certain groups within the Australian
community. Further, that “while there is some indication of the actual prevalence of
sexual assault among adult females, we have no idea of the prevalence among
males and children”. (p. 16) Further that “police statistics do not…..tell us whether
the victim was intellectually impaired, under the influence of alcohol or from a certain
ethnic group. (at p.19)
The report concludes, “There are indications of a high incidence of sexual violence
amongst particular socio-demographic groups. At present, data collection about
sexual violence against these groups is outside of the mainstream. The major
national sources of data do not collect information on variables that would indicate
levels of victimisation amongst these subgroups. Until data collection seeks to
address these gaps, the available information about sexual violence will remain
incomplete.” (Conclusions)
Australian Institute of Health and Welfare. Child protection Australia 2001-02.
Canberra, ACT: Australian Institute of Health and Welfare, (2003) Child welfare
series no.32 and Online at
http://www.aihw.gov.au/publications/cws/cpa01-02/index.html
This report provides comprehensive information on child protection services provided
by State and Territory community service departments. The report contains data for
2001 - 2002, as well as trend data on child protection notifications, investigations and
10
substantiations, children on care and protection orders and children in out-of-home
care. Detailed information on the characteristics of children in the child protection
system is presented, specifically data on their age, sex and Indigenous status. In
addition for child protection substantiations, data on the family type, the relationship
of the person believed responsible and the source of notification are also included.
For children on care and protection orders there are data on types of orders and
living arrangements, and for children in out-of-home care there are data on types of
placements and length of time in out-of-home care.”
J. Healy Ed. (2003) “Sexual Abuse” in Issues in Society Vol. 179 The Spinney
Press, Sydney.
Confronts the issues involved in sexual assault and child sexual abuse. The
information comes form a wide variety of sources and includes:
2.
-
newspaper reports and features;
-
magazine articles and surveys;
-
internet website material;
-
government reports, statistics and media releases;
-
literature and media releases from lobby groups and charitable organisations.
CAUSES OF ABORIGINAL CHILD SEXUAL ASSAULT
Atkinson, J. (2001)Trauma trails, Recreating Song lines: the Transgenerational
Effects of Trauma in Indigenous Australia.
Concerning ‘frontier violence’ Atkinson states ”abduction of Aboriginal women and
children for both economic misuse and sexual abuse was common. “Harris points
out that a whole language evolved in Australia around sexual violations of Aboriginal
women” ‘gin’ busts, ‘gin’ sprees, ‘gin’ jockeys, ‘gin shepherds, and so on…Harris
observes: ‘the point must be made that Aboriginal people were not naturally a
promiscuous or immoral people. Despite the fact that missionaries spoke out
unceasingly against sexual immorality, it was they who, of all people, came to realize
11
that in their traditional state Aborigines were a moral people. That is, they had an
exceptionally strict code of sexual behaviour and stern punishment for those who
broke the code’. (at p. 61-62)
Atkinson cites Hunter (1993) who highlights the “the loss of make role models
through separations and the criminal justice system, and the interruption of models
for progression into mature manhood. Further “it is not inconsequential that the two
communities in QLD with the highest rates of sexual violence were also the two
communities who had a high rate of consumption of pornography in the mid-1980’s.
In both communities canteens for the sale of alcohol had been imposed, and church
functions had interfered with previous parenting patterns. In both communities,
outsiders introduced the pornography to barter for access to children for sexual
purposes. The observational learning of watching pornography provides a distorted
and destructive construct of manhood for these young Aboriginal men and women.
The attitudes and behaviours of many young Aboriginal males come not only from
observational learning, or lack of positive parenting, but from experiences of trauma
in their own sexual victimization.”
“Well over half of the perpetrators of child sexual assault have been sexually abused
as young boys without healing intervention to break the cycle. At the same time,
studies show that sexually abused girls are at greater risk of entering marriages or
associations with an abusive partner.” (at p. 84-85)
Janet Stanley, Adam M.Tomison and Julian Pocock (2003) “Child abuse and
neglect in Indigenous Australian communities” in Child Abuse Prevention
Issues No. 19 Spring, National Child Protection Clearinghouse, Australian
Institute of Family Studies.
“Child abuse and neglect associated with Indigenous communities cannot be
understood, nor addressed, unless it is viewed from a broad perspective which
includes both historical and present day issues. Measures centered around
community-based responses which empower Indigenous Australians are needed, in
order to protect Indigenous children from the serious levels of abuse which they are
presently experiencing.”
12
“As in non-Indigenous communities, it is commonly believed that child abuse and
neglect in Indigenous communities are caused by a multitude of factors (Belsky
1980; Memmott et al. 2001) However….the Indigenous perspective usually places
considerably more emphasis on the impact of the wider community and societal
causal factors.” (p. 6)
“A number of prominent Indigenous spokespersons believe that present
dysfunctional behaviour in some Indigenous communities, including the abuse and
neglect of children, is grounded in unresolved grief associated with multiple layers of
trauma that has spanned many generations (for example, Atkinson 1994; Pearson
2000; Trudgen 2000).” (p. 7)
Gordon, S Hallahan, K, Henry, D (2002) Putting the picture together, Inquiry
into Response by Government Agencies to Complaints of Family Violence and
Child Abuse in Aboriginal Communities, Department of Premier and Cabinet,
Western Australia. (‘The Gordon Inquiry’)
The Gordon Inquiry was a formal inquiry to provide advice on how best the
Government should deal with widespread sexual abuse and violence within Western
Australia's Aboriginal community.
On the 28 November 2001, the Premier of Western Australia, the Honourable Dr
Geoff Gallop, announced that the State Government planned to hold a Special
Inquiry into the Response by Government Agencies to Complaints of Family
Violence and Child Abuse in Aboriginal Communities.
This was prompted by the coronial inquest into the death of 15-year-old Susan Ann
Taylor at the Swan Valley Nyoongar1 Community (SVNC) in Lockridge in 1999. The
Coroner’s report included allegations of physical and sexual abuse at the community,
and raised questions, such as the mandatory reporting by health officials of sexually
transmitted diseases and the practices of various government departments and other
agencies.
13
The Terms of Reference required the Inquiry to examine the actions of government
agencies in responding to family violence and child abuse. In addition and most
importantly, the Terms of Reference required the Inquiry to examine causes,
prevalence and solutions to family violence (which according to Aboriginal
community definitions includes child abuse).
The Inquiry was required to:
-
Examine a range of matters in relation to the activities of government
agencies in responding to family violence and child abuse with particular
reference to the SVNC
-
Consult widely, including with representatives of Aboriginal communities
-
Consider current research into the prevalence, causes and solutions to
Aboriginal family violence
-
Conduct formal hearings
-
Receive and consider submissions from interested individuals and
organizations
-
Provide an Interim Report
-
Consider a number of matters relating to government agency responses to
family violence and child abuse including:
-
Any necessary legislative and administrative measures
-
The mandatory reporting of sexually transmitted diseases
-
Support measures for children reporting abuse
-
Recommend practical solutions
-
Ensure government agencies had the opportunity to address any possible
adverse findings.
The Inquiry concluded that current services are unable to adequately address the
escalating rates of family violence and child abuse in Aboriginal communities and
articulated a community focused systemic response. The 640 page report
documents 197 recommendations and findings and suggests that an Implementation
Body be established to oversee and implement the recommendations. It also
proposes that independent mechanisms be developed to oversee the systems that
respond to family violence and child abuse. It recommends the creation of a
14
Children’s Commissioner, a Deputy Children’s Commissioner (Aboriginal) and a
Child’s Death Review Team.
Healey, J. (2003) Sexual Abuse Issues in Society Vol. 179, The Spinney Press,
Sydney.
Confronts the issues involved in sexual assault and child sexual abuse. The
information comes from a wide variety of sources and includes:
-
newspaper reports and features;
-
magazine articles and surveys;
-
internet web site material;
-
government reports, statistics and media releases;
-
Literature and media releases from lobby groups and charitable organisations.
Petraitis, V. & O’Connor, C. Rockspider: The Danger of Paedophiles – Untold
Stories, Hybrid Publishers, Melbourne.
This book does not attempt to provide a definitive answer to the problems
surrounding child sexual assault, but rather it lays bare the issues of this crime for
the information of the broader community, and illustrates the anecdotal and practical
experience of the Victoria Police Child Exploitation Squad.
3.
CONSEQUENCES OF ABORIGINAL CHILD SEXUAL ASSAULT
Carter, E. (1987) Aboriginal women speak out about rape {and} child sexual
abuse: A report of an Adelaide survey, conducted in the Aboriginal
community, October 1985-May 1986, Adelaide Rape Crisis Centre Inc.
The paper identifies “a number of consequences for the women and children who
had been abused. The adults who had been raped as adults or as children felt guilty,
dirty and ashamed, were drinking and taking pills to ease the pain, and experienced
fear, which inhibited their daily lives and relationships. The abused children were
running away or leaving home to bring an end to the abuse; they were fearful and
15
exhibited signs of stress which affected their daily lives and relationships. They also
felt guilty, dirty and ashamed, and were drinking as they got older. Some indicated
they had never coped with their feelings.”
Eastwood, C. (2003) “The Experiences of Child Complainants of Sexual
Abuse in the Criminal Justice System” in Crime and Criminal Justice Trends
& Issues No. 250 Australian Institute of Criminology.
This paper presents a summary of findings from a report to the Criminology
Research Council on the experiences of child complainants of sexual abuse in the
criminal justice system in three Australian jurisdictions.
The aim of the research was to investigate the processes surrounding, and the
consequences of involvement in, the criminal justice system from the perspective of
the child complainant. Interviews were conducted with children, their
parents/guardians, crown prosecutors, defence lawyers and judicial officers. When
asked if they would ever report sexual abuse again following their experiences in the
criminal justice system, only 44 per cent of children n Queensland, 33 percent in
New South Wales and 64 per cent in Western Australia indicated that they would.
This paper suggests that legislative and procedural reform, and a more child-centred
policy focus, are required in order to prevent damage being done to the child by the
justice system. Such damage may contribute to non-reporting of sexual abuse by
children, allowing abusers to act with impunity.
C. Sanderson (2004)The Seduction of Children: Empowering Parents and
Teachers to Protect Children from Child Sexual Abuse Jessica Kingsley
Publishers New York.
The aim of this book is to inform parents, teachers and adults about the reality of
child sexual assault in the hope that with such knowledge they will be more able to
protect children and move toward preventing child sexual assault. Each chapter
looks in depth as issues such as the true nature of child sexual assault, the
development of children’s sexuality, what motivates child sexual abusers, the use of
16
the internet as a medium for child pornography, and the sexual grooming of children.
It also considers the impact of child sexual assault on children, the signs and
symptoms that indicate child sexual assault, and how best to understand the
sexually abused child. Practical advice is given on how to talk to children about
sexuality and the dangers of child sexual assault, along with proposals for preventing
child sexual assault in the future.
Cashman, J. (2005) “Don’t Tell Anyone Our Secret! Child Sexual Assaults in
Indigenous Communities” Indigenous Law Bulletin 6 (12) July: 19-22.
This aricle examines the prevalence of child sexual assault in Indigenous
communities and the effects of such abuse on the victims. It will discuss the possible
reasons for the low rates of reporting of this issue as well as the actions taken by the
Federal Government in response.
Blakester, A. (2005) “Child-Friendly Communities – New Approaches to
Preventing Abuse” in Inside Out, July/August.
Article about the NAPCAN evaluation of its role and work in the prevention of child
abuse and neglect. NAPCAN’s approach is underpinned by evidence in terms of
leading ‘primary prevention’ which supports a whole-of-community responsibility in
preventing child abuse and neglect - before it starts.
Lindsay, K. “Your Mob, My Mob: Better Supports for Aboriginal Kids in Care”
in Inside Out September/October 2005.
Article on AbSec which is the peak body for Aboriginal Out-Of-Home Care, giving a
voice to and supporting children, families and communities within the child and
community services sector.
17
4.
OVERVIEW OF FAMILY VIOLENCE: CAUSALITY,
PERVASIVENESS AND PREVALENCE
Human Rights and Equal Opportunity Commission (2003) Social Justice
Report - Chapter 5 Office of the Aboriginal and Torres Strait Islander Social
Justice Commissioner.
This chapter provides a broad overview of the current situation regarding family
violence in Indigenous communities in Australia from both a statistical and policy and
program perspective. It provides an Indigenous specific perspective on family
violence. An examination of the western traditional approach to domestic violence,
including its narrow interpretation, and the limitations of this approach in addressing
violence in Aboriginal communities is presented. Alternative models for addressing
family violence in Indigenous communities are also considered. There is a particular
focus on restorative justice models and healing approaches, as well as consideration
of the vital role of community control, capacity building and governance reform in
restoring health and wellbeing to Indigenous communities.
C. Thomas & J. Selfe Aboriginal Women And The Law AIC
This paper is based on community consultations undertaken in New South Wales by
the Women's Coordination Unit. Not all consultation was specific to the law, yet the
Aboriginal women participating felt that Aboriginal women and the law was an area
of significant importance and, as a result, it was discussed at length.
In terms of issues relating to family violence and Aboriginal child sexual assault the
authors reiterated a 1990 report of the New South Wales Aboriginal Women's
Conference recommended that the Attorney-General establish a working party to
review the effectiveness of the Children's Court and the effectiveness of the criminal
law system in relation to the needs of Aboriginal women and children who are victims
of sexual assault. Aboriginal women have stated their feelings of alienation with the
legal system. This system must be examined to determine how best it can include
the needs of Aboriginal women and children. The terms of reference for the working
18
party should include:
-
the number of cases of sexual assault involving Aboriginal women and
children which are reported the reasons why such a low number of adult and
child sexual assault cases are being reported;
-
how court rules and procedures affect Aboriginal women and children as
witnesses;
-
the adequacy of Section 409(b) of the Crimes Act be examined in relation to
Aboriginal women;
-
the development of strategies which would make the Children's Court and the
criminal law system more relevant to and effective for Aboriginal women and
children;
-
consideration of support systems for Aboriginal child sexual assault cases.
Janet Stanley, Adam M. Tomison and Julian Pocock (2003) “Child abuse and
neglect in Indigenous Australian communities” in Child Abuse Prevention
Issues Number 19 Spring.
In this paper the authors explore the proposition that this broader framework is
necessary to prevent child abuse and neglect in Indigenous communities. As long as
the problem is viewed as the problem of an individual, it may be that little progress
will be made towards preventing child abuse and neglect in Indigenous communities
(Cunneen and Libesman 2002). This paper seeks to further understand child abuse
and neglect in Indigenous communities through exploration of this broader
perspective.
The term ‘family violence’ is often used by Indigenous people to refer to the broader
experience of violence within extended families and intergenerational issues.
(Domestic Violence and Incest Resource Centre (DVIRC) 1998; Bagshaw et al.
1999; Gordon, Hallahan and Henry 2002) Indeed the term often extends to
encompass the community, reflecting the fact there is not a clear delineation
between private and public spheres in many Aboriginal communities (DVIRC 1998).”
(at p.3)
19
“Child abuse and neglect associated with Indigenous communities cannot be
understood, nor addressed, unless it is viewed from a broad perspective which
includes both historical and present day issues. Measures centred around
community-based responses which empower Indigenous Australians are needed, in
order to protect Indigenous children from the serious levels of abuse which they are
presently experiencing.” (p. 1)
Ministerial Council on Aboriginal and Torres Strait Islander Affairs (MCATSIA)
Indigenous Family Violence Strategy
In July 2003, the Prime Minister held a national roundtable on Indigenous family
violence. Following the roundtable, a working group was established to advise the
Prime Minister on ways of advancing strategies to address family violence in
Indigenous communities. ATSIC Commissioner Alison Anderson, Lowitjia
O'Donoghue, Jackie Huggins and Ian Anderson were selected from the national
roundtable to form this working group to draft a family violence strategy with the aid
of government representatives. At the time of forming the working group it was
envisioned that the draft family violence strategy would inform the public about the
violence crisis as well as be discussed and supported by COAG.
Subsequent to the roundtable, the Prime Minister announced a commitment of $20
million as a 'down payment' to address the consequences of violence in Indigenous
communities. It is anticipated that there may be further budget announcements in the
2004-05 budget. The approach to addressing family violence in Indigenous
communities proposed by the Prime Minister includes focusing on support for nongovernment organisations; diversion programme for alcohol and drugs; communities
in crisis; and community initiatives to combat sexual assault.
In 2002-2003 ATSIC allocated $4.69 million through its Legal and Preventative
Program on 13 Family Violence Prevention Legal Services (FVPLS) to provide
support to the victims of violence and sexual assault and to work with the families
and communities affected by violence. The services provided by the FVPLS include:
-
legal assistance;
-
information and referral (eg medical help, food, clothing and accommodation);
20
-
crisis counselling and ongoing support;
-
court support and other support and awareness raising activities;
-
community education, consultation and planning;
-
production of publications and other resources; and
-
advocacy.
These FVPLS are located in Kempsey, Moree and Walgett in NSW.
Bree Cook, Fiona David and Anna Grant (2001) Sexual Violence in Australia
Australian Institute of Criminology Research and Public Policy Series No. 36.
This report summarises “what we know, and what we do not know, about sexual
violence in Australia. It is well documented that sexual violence is a crime
overwhelmingly perpetrated by males against females but within these two groups
there is room for considerable variation. Factors such as age, race, physical or
mental impairment, drug and alcohol use, occupation and prior experiences of
victimisation are also relevant. As a result, sexual violence disproportionately affects
certain groups within the Australian community.” (Foreward, Adam Graycar, Director,
Australian Institute of Criminology January 2001
It notes that the “Australian criminal justice system and governments have developed
a range of programs and services to address the issue of sexual violence—both from
the perspective of offending and victimisation. These responses are considered in
this report.” (Ibid)
“A survey of Aboriginal people conducted in South Australia in the mid-1980s
revealed a high level of rape and child abuse in the metropolitan Aboriginal
community. The report, Aboriginal Women Speak Out (Carter 1987) found that,
according to incidents reported by 120 survey respondents:
-
59 cases of rape and 61 cases of child sexual abuse were recorded;
-
90 per cent of rape survivors and abused children were female;
-
50 per cent of rape survivors were between the ages of 21 and 28 at the time
of the rape, and 48 per cent of abused children were between the ages of six
and eight when the abuse started;
21
-
17 per cent of rape survivors were pack-raped;
-
41 per cent of rapists were Aboriginal, 42 per cent were white and 17 per cent
were Aboriginal and white rapists acting together;
-
the offender was most often known to the victim and in 29 per cent of rape
cases was an intimate partner;
-
in 40 per cent of rape incidents the offender had been drinking alcohol or
using drugs;
-
51 per cent of rapes occurred either in the victim’s or offender’s home;
-
87 per cent of child sexual abuse was continuous, over 50 per cent continuing
for more than five years;
-
in 51 per cent of child abuse cases the offender was white, 42 per cent of
offenders were de facto husbands of the child’s mother, and 23 per cent were
the child’s foster father;
-
where the child abuse offender was Aboriginal, 17 per cent were the child’s
biological father;
-
88 per cent of rape survivors and 64 per cent of child sexual abuse survivors
did not formally report the assault; and
-
reasons for not reporting rape or child sexual abuse included fear of not being
believed, fear of the abuser, and shame or worry about repercussions in the
community.” (p. 26)
Joe Tucci, Chris Goddard & Janise Mitchell (2003) Tolerating Violence Against
Children: Community Attitudes About Child Abuse in Australia Australia
Childhood Foundation September
The Australian Childhood Foundation, in conjunction with the Child Abuse and
Family Violence Research Unit at Monash University, commissioned Quantum
Market Research to undertake a comprehensive national attitudinal survey in relation
to child abuse and child protection.
The key objectives of the research were to:
-
assess the degree to which child abuse is considered a community concern;
-
gauge the accuracy of public knowledge about the extent, nature and impact
of child abuse; and,
22
-
track community attitudes about the challenges facing children in relation to
child abuse and child protection.
A representative sample of 500 adults aged between 18 years and over in Australia
was interviewed by phone in June 2003.
It reported that as a community almost 1 in 4 of those surveyed either did not believe
sex between a 14 year old girl and an adult is sexual abuse or were uncertain about
it. Just over 1 in 2 respondents did not believe or were uncertain whether to believe
children’s stories about being abused.
Monique Keel (2004) Family violence and sexual assault in Indigenous
communities “Walking the talk” Australian Centre for the Study of Sexual
Assault at http://www.aifs.gov.au/acssa/pubs/briefing/b4.html
“The solutions to family violence are seen to lie in strategies that attend to the needs
of all members of the community, particularly in “healing”, rather than punishing the
perpetrators. Non- Indigenous or mainstream approaches, that have relied more
heavily on feminist analyses of violence, seek responses to the “crime” of family
violence that advance the rights of women to be socially, legally and economically
supported should they decide to leave their violent partners. This point of difference
in approach is often referred to in the drafting of policy statements and taskforce
reports at a state/territory level, and is acknowledged by Indigenous people tending
to favour recommendations that culminate in community responses to healing
families, rather than in isolating and/or holding individual offenders accountable.” (At
p. 2)
Stanley, J., Cadd, M. & Pocock, J. (2003) Child Sexual Abuse in Indigenous
Communities National Child Protection Clearinghouse, Australian Institute of
Family Studies with assistance from Secretariat of National Aboriginal and
Islander Child Care Presented at the Conference, Child Sexual Abuse: Justice
Response or Alternative Resolution, 1-2 May, Adelaide.
This paper talks about the following issues:
23
-
The extent of child sexual abuse in Indigenous communities;
-
The complications around understanding the problem - why it is even more
difficult to understand child sexual abuse in Indigenous communities than in
the non-Indigenous population;
-
The contribution of past and present trauma experienced by Indigenous
people to the present problem of child sexual abuse;
-
Cultural clashes in the child protection system - how one cultural model of
operating is imposing on another cultural model of operating; and,
-
The way forward, moving beyond consultation to negotiation.
“The present impact of past unresolved traumatic events is a theme repeated by
most Indigenous commentators. Atkinson, Pearson and Robertson talk of unresolved
grief associated with multiple layers of trauma experienced over many generations,
due to deaths and injuries, loss ('stolen generations'), dispossession and brutality.
For example, the Fitzgerald Report (2001) states that there is a clear history of
sexual assault of Indigenous children by white colonists, a history which can even be
seen in legislation. The 1901 Opium Amendment Act revised the law so that sexual
assault of an Indigenous female ‘employee’ was an offence if the child was found to
be pre-pubescent. (at p. 5).
Citing Garbarino (1995) the report notes “the association between ‘toxic’
environments, and maladaptive coping behaviour and behavioural dysfunction. Toxic
environments are characterised by: high unemployment, high crime rates, poor
transport facilities, poor access to professional services. This is usually associated
with geographical and social isolation. Indigenous commentator, Memmott (2001),
calls this ‘dysfunctional community syndrome’.”
Laing, L. (2001) Pathways to safety: an interview about Indigenous family
violence with Pam Greer, Indigenous training and development consultant.
Sydney, NSW: Australian Domestic and Family Violence Clearinghouse,
University of New South Wales (Issues paper no.5) and Online at
http://www.austdvclearinghouse.unsw.edu.au/PDF%20files/Issuespaper5.pdf
24
“There has been a great deal of material written about the extent of violence and its
effect within Australia's Indigenous community. This issues paper aims to contribute
to the development of solutions to family violence by means of an interview with Pam
Greer, an Aboriginal woman who has worked extensively to provide education and
information about domestic violence, rape and child sexual assault to Aboriginal
communities across Australia. Discussion includes: feminism and whether it can
contribute anything to helping Aboriginal communities cope with violence; similarities
and differences for Aboriginal women and non Aboriginal women who are victims of
violence; barriers to ending violence towards Aboriginal women and children;
consultation with Aboriginal communities; responses of the legal system; and use of
the terms 'domestic violence' or 'family violence'.”
Weeks, W. (2001) Access and equity in services against sexual violence.
Sydney, NSW: Australian Domestic and Family Violence Clearinghouse,
University of New South Wales - Conference papers - Seeking Solutions,
Australia's Inaugural Domestic Violence and Sexual Assault Conferenc and
Online at
http://www.austdvclearinghouse.unsw.edu.au/Conference%20papers/Seeksoln
/Weeks,Wendy.pdf
This paper presents some of the ethical dilemmas and findings of research
undertaken by the National Association of Services Against Sexual Violence in 2001,
to explore access and equity practices in relation to Aboriginal and Torres Strait
Islander women and children, and women and children from minority ethnic
communities. Nine strategies, which describe how the services are responding to
challenges to increase access and equity, are identified and discussed.
‘The Gordon Inquiry’
The Queensland Fitzgerald Report states that the 1901 amendments to the
Aboriginal Protection and Restriction of Opium Act 1987 (QLD) addressed continuing
sexual abuse of girls and women, including the practice of taking women from place
to place like chattels and tying them up to prevent escape. The amendment required
that permits be obtained for employment of all females and decreed that sexual
25
assault was now an offence ‘if medical proof showed the girl to be pre-puberty
(Fitzgerald 2001: 11). Thus by implication permitting the sexual abuse of girls who
had reached puberty.” (at p. 58)
Atkinson, J. (2001) Trauma trails, Recreating Song lines: the Transgenerational
Effects of Trauma in Indigenous Australia.
Concerning ‘frontier violence’ Atkinson states ”abduction of Aboriginal women and
children for both economic misuse and sexual abuse was common. “Harris points
out that a whole language evolved in Australia around sexual violations of Aboriginal
women” ‘gin’ busts, ‘gin’ sprees, ‘gin’ jockeys, ‘gin shepherds, and so on…..Harris
observes: ‘the point must be made that Aboriginal people were not naturally a
promiscuous or immoral people. Despite the fact that missionaries spoke out
unceasingly against sexual immorality, it was they who, of all people, came to realize
that in their traditional state Aborigines were a moral people. That is, they had an
exceptionally strict code of sexual behaviour and stern punishment for those who
broke the code’. (at p. 61-62)
Atkinson cites Hunter (1993) who highlights the “the loss of make role models
through separations and the criminal justice system, and the interruption of models
for progression into mature manhood. Further “it is not inconsequential that the two
communities in QLD with the highest rates of sexual violence were also the two
communities who had a high rate of consumption of pornography in the mid-1980’s.
In both communities canteens for the sale of alcohol had been imposed, and church
functions had interfered with previous parenting patterns. In both communities,
outsiders introduced the pornography to barter for access to children for sexual
purposes. The observational learning of watching pornography provides a distorted
and destructive construct of manhood for these young Aboriginal men and women.
The attitudes and behaviours of many young Aboriginal males come not only from
observational learning, or lack of positive parenting, but from experiences of trauma
in their own sexual victimization.”
“Well over half of the perpetrators of child sexual assault have been sexually abused
as young boys without healing intervention to break the cycle. At the same time,
26
studies show that sexually abused girls are at greater risk of entering marriages or
associations with an abusive partner.” (at p. 84-85)
Atmore, C. (1999) “Towards Rethinking Moral Panic: Child Sexual Abuse
Conflicts and Social Constructionist Responses” in Bagley, C. & Mallick, K.
(Eds.) Child Sexual Abuse and Adult Offenders: New Theory and Research
Ashgate Publishing Company, England.
Morley, R. & Mullender, A. (1994) “Domestic Violence and Children: What Do
We Know From Research” in Morley, R. & Mullender, A. (Eds.) Children Living
with Domestic Violence: Putting Men’s Abuse of Women on the Child Care
Agenda Whiting & Birch Ltd., London.
This book concentrates on the impct of domestic violence on children. It addresses
the need to:
-
highlight the impact on children of the abuse of their mothers
-
explore good practice with such children and in children groups associated
with domestic violence programmes and other women’s services in North
America;
-
examine the links between abuse of women in the home and the abuse of
children;
-
provide a child’s eye view, both current and retrospective, of the issues and
experiences;
-
begin to consider the particular issues encountered by black and asian;
-
evaluate the interventions of professionals including court welfare officers;
-
questions certain received truths such as the cycle of violence and families
need fathers stance.
Breckenridge, J. (1999) “Subjugation and Silences: the Role of the Professions
in Silencing Victims of Sexual and Domestic Violence” in Breckenridge, J &
Laing, L. (Eds.) Innovative Responses to Sexual and Domestic Violence:
Challenging Silence Allen & Unwin, Sydney.
27
Assess the state of play with sexual and domestic violence. It examines the
effectiveness of current services in the context of both Australian and international
law and policy. It looks at innovative developments in practice and research, and
outlines strategies which are proving successful in supporting victims and addressing
offenders accountability and responsibility.
Rendell, K., Rathus, Z. & Lynch, A. (2000) An Unacceptable Risk: A Report on
Child Contact Arrangements Where There is Violence in the Family Women’s
Legal Service Inc, Brisbane.
Chapter One is the Background and Methodology – Formation and the Abuse Free
Contact Group. During 1997 a group of welfare and legal practitioners identified
concerns relating to the abuse of children during contact visits (formerly known as
‘access’) with non-residential (formerly non-custodial) parents. These practitioners
worked with residential (custodial) parents who were concerned that their children
were being exposed to abuse during contact visits. The residential parents described
a range of abuse including sexual, physical, emotional and verbal abuse, as well as
neglect. They were women who had accessed legal and welfare processes but
whose children were subject to unsafe contact arrangements. After realising the
common issues which were arising in their work the practitioners formed the Abuse
Free Contact Group (AFCG) and agreed to meet regularly. The purpose of the
research was:
To gather information on the way in which legal and welfare systems respond
to women and children affected by violence and abuse after separation.
Cling, B. J. Ed (2004) Sexualised Violence Against Women and Children: A
Psychology and Law Perspective The Guilford Press, New York.
National Committee on Violence (1990) Violence: Directions for Australia,
Australian Institute of Criminology, Canberra.
This report identifies the state of violence in Australia. It summarises all the available
information on the subject and, from these disparate sources, make an assessment
of the incidence and prevalence of violence in Australia. It reviews available research
28
in Australia and overseas relating to the cause of violence. It makes
recommendations concerning the prevention and control of violence.
People, J. (2005) Trends and Patterns in Domestic Violence Assaults Crime
and Justice Bulletin, Contemporary Issues in Crime and Justice, No. 69,
October.
This bulletin uses data recorded by the New South Wales (NSW) Police to provide
information on the trends and patterns in domestic violence assaults in NSW. The
trends in recorded incidents of domestic violence assault between 1997 and 2004
are described. Data on incidents of domestic violence assault that occurred during
2004 are used to examine the spatial distribution of domestic violence assault in
NSW and the location and premises at which these assaults occur. The bulletin
concludes by examining the relationship between domestic violence assault and
several socio-economic factors.
5.
CONSEQUENCES/IMPACT OF FAMILY VIOLENCE
Aboriginal Justice Advisory Council (2002) Holistic community justice: a
proposed response to Aboriginal family violence New South Wales Attorney
General's Department, Sydney.
The Paper explores the current criminal justice system approach to responding to
family violence, and some of existing problems in determining a meaningful justice
outcome for Aboriginal victims and offenders. It calls for an approach, which is
completely Aboriginal community controlled, deals with victims needs in a holistic
manner and deals with offenders from a restorative and rehabilitative view.
E. O’Dwyer “Destiny’s Children” in Sun Herald 10 April 2005 at p. 61
“Aboriginal women account for almost one-third of out bulging female prison
population. Research paints a grim picture of drugs, crime and sexual abuse and
highlights the need for youth support.”
29
Dr Anna Stewart, Dr Susan Dennison & Ms Elissa Waterson (2002) Pathways
From Child Maltreatment To Juvenile Offending - Final Report, Trends & Issues
in Crime and Criminal Justice, No. 241, School of Criminology and Criminal
Justice Griffith University at
http://www.aic.gov.au/publications/tandi/tandi241.html
The purpose of this research is to examine in detail the risk factor of child
maltreatment and the effect maltreatment has on engagement in juvenile offending.
Understanding the relationship between child maltreatment and juvenile offending
has important implications for understanding the manifestation of criminal behaviour
as well as implications for child protection initiatives and crime prevention strategies.
While the link between child maltreatment and juvenile offending has been supported
by various studies, there is less known about the impact of the maltreatment on the
nature and duration of the offending. Concerted attention also needs to be directed
towards establishing causal influences. Much of the research on trajectories from
maltreatment to juvenile offending is correlational and what is often not clear is the
causal evidence that risk factors, such as maltreatment, produce delinquent
outcomes.
The Gordon Inquiry - Appendix 1 and Chapter 4
In 2001the Department of Community Development (DCD) undertook a study of the
‘prevalence of substance abuse in care and protection applications’. The research
identified correlations between family violence, substance abuse, mental health
issues, and child maltreatment in a large proportion of DCD cases.”(at p. 136)
In the research conducted by the [WA] Department of Community Services…it was
shown that family violence was present in 28 percent of the department’s child
maltreatment cases.(at p. 138)
“To survive over the years many Aboriginal people have had to suppress and/or
deny their feelings of distress and despair. The pain has become internalised within
the family, expressing itself as destructive behaviours such as family violence. This
enacting of trauma is a form of ‘coping mechanism.” (at p. 57 citing Robertson 2000:
31).
30
McKay, M.M. (1994), 'The link between domestic violence and child abuse:
assessment and treatment considerations', in Child Welfare, vol.73, no.1,
pp.29-39, January/February.
6.
RESPONSES TO CHILD SEXUAL ASSAULT
A.
GOVERNMENT RESPONSES
Steering Committee for the Review of Government Service Provision Report
on– Volume I: Education, Justice, Emergency Management, Commonwealth of
Australia, January 2005.
Data on the efficiency and effectiveness of government services in the areas of
public housing, school education, vocational education and training, police, courts
administration, corrective services and child protection and support.\
Volume I
– education, justice emergency management
Volume II
– health, community services, housing
NSW DEPARTMENT OF HEALTH
NSW Aboriginal Family Health Strategy May (2002) NSW Dept of Health
The NSW Aboriginal Family Health Strategy is described as a ‘key strategy’
designed to:
-
Address the most urgent issues relating to the occurrence of family violence
and sexual assault in Aboriginal communities;
-
Provide a framework for immediate government action aimed at dealing with
these issues, including the provision and location of government funded
services, and the strategic development of Aboriginal community controlled
responses to the incidence of family violence and sexual assault; and
31
-
Work within the context of Aboriginal Health as one in which selfdetermination is paramount and health is defined as "not just the physical
well-being of the individual but the social, emotional and cultural well-being of
the whole community".
“The NSW Aboriginal Family Health Strategy represents the commitment by
Aboriginal communities, by the Aboriginal Health Resource Co-operative and the
NSW Department of Health to an holistic and culturally appropriate approach to the
reduction of family violence and sexual assault in Aboriginal communities.”
http://www.lawlink.nsw.gov.au/lawlink/vaw/dvguidelines.nsf/pages/government
The NSW Interagency Guidelines for Child Protection Intervention (2000) NSW
Government
“The role of NSW Health in child protection is to recognise and report children and
young people who are at suspected risk of harm and to provide crisis counselling,
ongoing counselling and medical examinations for children and young people who
have experienced abuse or neglect. NSW Health offers preventative and educational
programs for health workers and communities as well as special programs for
children, young people and families who have experienced child abuse or neglect.”
“As an interagency partner the DoH is “working with other government and nongovernment agencies within agreed, coordinated procedures, to plan and provide
services for the care and protection of children and young people, and to strengthen
and support families.”
NSW Rural Health Plan: NSW Government Response to the Report of the Rural
Health Implementation Coordinator Group NSW Health, September (2002)
“An Aboriginal Family Health Strategy to reduce the occurrence of family violence,
sexual assault and child abuse in the Aboriginal and Torres Strait Islander
community has been implemented. The strategy funds 14 rural projects costing over
$1 million.” (p. 21)
32
Monique Keel (2004) Family Violence and Sexual Assault in Indigenous
Communities - “Walking the talk” Australian Centre for the Study of Sexual
Assault
This briefing paper provides an overview of the key issues and findings from recent
reports and research into family violence and sexual assault in Indigenous
communities.” (p. 1)
The article is intended to assist both Indigenous and non-Indigenous workers to
navigate issues identified in some of the key policy documents and areas of
research. (p. 1)
Palmer, M; Lamb, R; Katakouzinos, N (2002) “The evidence for sexual assault
counselling with children” in: What Works? Evidence Based Practice in Child
and Family Services - ACWA Conference, September 2002, proceedings. Bondi
Beach, NSW: Association of Childrens Welfare Agencies and Online at
http://www.acwa.asn.au/Conf2002/Conf_proceedings/18%20Mark%20Palmer.doc
The concept of Evidence Based Practice has prompted much discussion and
questioning of the effectiveness of counselling or therapy in relation to children who
have experienced sexual assault. This paper reflects on the research literature in
relation to child sexual assault treatment outcomes and the practice experience of
The Children's Hospital at Westmead Child Protection Unit. Sexual abuse outcome
literature and treatment effectiveness literature demonstrates few consistent
relationships between sexual abuse events and outcomes or effects for children.
Clinical experience demonstrates a variety of meanings attributed to events by
children and their care givers which need to be understood in the context of each
family. To accommodate both of these issues, assessment and treatment programs
for children who have experienced abuse need to be flexible and responsive to the
needs and experiences of individual children and their families. Indications are that
current concepts of evidence, particularly when drawn from models of evidencebased medicine are inadequate to the complexities of counselling practice. The
implications for service delivery and developing relevant clinical evidence to support
accountable and effective practice are discussed. (Author abstract, edited)
33
DEPARTMENT OF COMMUNITY SERVICES
Janet Stanley, Muriel Cadd and Julian Pocock Child Sexual Abuse in
Indigenous Communities Secretariat of National Aboriginal and Islander Child
Care Presented at the Conference, Child Sexual Abuse: Justice Response or
Alternative Resolution, 1-2 May, Adelaide
“None of the submissions from Indigenous communities to the National Inquiry into
the Separation of Aboriginal and Torres Strait Islander Children from Their Families
(Human Rights and Equal Opportunity Commission (HREOC) 1997) saw
interventions from ‘welfare departments as an effective way of dealing with
Indigenous child protection needs” (Citing Cunneen and Libesman 2002: internet
version). (at p.5)
Child protection Australia 2002–03 Australian Institute of Health and Welfare
(AIHW) 2004 Canberra: AIHW (Child Welfare Series no. 34)
The reasons for the over-representation of Aboriginal and Torres Strait Islander
children in child protection substantiations are complex. The report Bringing Them
Home (National Inquiry into the Separation of Aboriginal and Torres Strait Islander
Children from their Families (HREOC 1997)) examined the effect of child welfare
policies on Indigenous people.
It noted that some of the underlying causes of the over-representation of Aboriginal
and Torres Strait Islander children in the child welfare system include:
-
The legacy of past policies of the forced removal of Aboriginal children from
their families;
-
intergenerational effects of previous separations from family and culture;
-
poor socioeconomic status; and,
-
cultural differences in child-rearing practices.
34
Mid North Coast Aboriginal Child, Youth & Family Strategy: Report of
Consultation and Planning Department of Community Services March 2003 –
June 2004
The NSW Interagency Guidelines for Child Protection Intervention (2000) NSW
Government
The role of the Department of Community Services in child protection is prescribed
by the Children and Young Persons (Care & Protection) Act 1998.
The role includes providing or arranging services to children, young people and
parents when a request for assistance is received; receiving and assessing reports
of child abuse and neglect; investigating those reports where there is a likelihood of
risk of harm to the child or young person; acting to maintain the safety of children
and young people; monitoring the safety of the child when serious harm has been
identified; developing case plans; ensuring the provision of quality out-of-home care
and support services for children and young people unable to live with their family;
initiating action to protect children through alternative dispute resolution or care
proceedings in the Children’s Court and providing and arranging support services to
children, young people and their families.
A Question of Safeguards: Inquiry into the Care and Circumstances of
Aboriginal and Torres Strait Islander Children and Young People in Care (2001)
Community Services Commission
In the latter half of 2000 the Community Services Commission decided to randomly
select 15 Aboriginal children and young people in care, and review their
circumstances. Reasons for this decision included the disproportionate number of
Aboriginal children and young people in the substitute care population and reports
suggesting poor outcomes for Aboriginal children and young people in the care
system.
At 30 June 2000 just over a quarter (2,145) of all children and young people in care
in NSW were Indigenous. In this state Aboriginal children and young people are nine
35
times more likely than other children and young people to be in out-of-home care.
Individual reviews looked at a number of issues including current placements;
family contact; and education, health, social and recreational issues. Aspects of case
management were also considered including case planning and review, support to
the child or young person and support to the carer.
This report uses the information stemming from the individual reviews to:
-
identify common issues for Aboriginal children and young people in care;
-
identify and report on examples of good practice; and
-
identify and report on barriers and systemic weaknesses within the care
system impacting on good practice.
The findings and observations of this work are presented in this report.
ACWA Issues Paper 5 “Notification of Child Sexual Assault” at
http://www.acwa.asn.au/ACWA/publications/issuepapers/Paper_05.html as at 15
February 2005
ACWA has produced this Issues Paper with a recommended policy and set of
procedures for agencies to employ when they are faced with a disclosure of sexual
assault from a child in care.”
“Social workers, psychologists, teachers, child care and youth workers, welfare
workers - and others involved in the health and welfare of children and adolescents have a professional responsibility to notify the Department of Family & Community
Services where they have "reasonable grounds to suspect" that sexual assault has
occurred. “ Workers in the Health Department and FACS are under instructions to
notify all suspected cases of CSA.
‘The Gordon Inquiry’
“Child protection agencies have developed complex labels to describe the problem
of child abuse and neglect. Labels such as ‘risk’, ‘risk factors’, ‘risk of abuse’, and
36
‘risk of harm’ are all used – often without clarification of what is meant.” (at p. 20
citing Tomison 1997).
Swanston, H Y; Parkinson, P N; Oates, R K; O'Toole, B I; Plunkett, A M;
Shrimpton, S “Further abuse of sexually abused children” in Child Abuse &
Neglect v.26 no.2 Feb 2002: 115-127)
“This article reports on a study which aimed to determine the incidence of re-abuse
in children known to have been sexually abused and to find factors that increase the
risk of further abuse. The study group was comprised of 183 children with
substantiated sexual abuse who presented to the Child Protection Units of two
Sydney metropolitan hospitals from 1988 through 1990. Six years after presentation
for the abuse, records of the Department of Community Services were checked to
see if any of the young people had been the subject of substantiated notifications for
abuse / neglect before and after intake to the study.”
Bessarab, D. (2000) “Child sexual abuse” in Dudgeon, P., Garvey, D. and
Pickett, H. eds. Working with Indigenous Australians: a handbook for
psychologists Perth, WA: Gunada Press, Curtin Indigenous Research Centre,
Curtin University of Technology.
“Ways of working with an Aboriginal child or young people who has been sexually
abuse, are identified in this paper which also discusses how practitioners can work
with the families and outlines the rationale behind the problem solving Protective
Behaviours program.”
DEPARTMENT OF HOUSING
The NSW Interagency Guidelines for Child Protection Intervention (2000) NSW
Government
The role of the Department of Housing in child protection is to recognise and report
suspected risk of harm, and to assist in ensuring the safety and security of children,
37
young people and their families in services provided or funded through the
organisation. The Department also provides services and programs that assist
socially disadvantaged households, their children and families.
Australia's Combined Second and Third Reports under the Convention on the
Rights of the Child March 2003
http://www.ag.gov.au/agd/www/Agdhome.nsf/Page/RWP2EAD93C62ABA58C8C
A256DA3001DA432?OpenDocument#c8 as at 15 February 2005
The Australian Government reported to the CRC Committee the following:
“In New South Wales, the Wood Accommodation Support Program was established
in response to the link between homelessness, sexual exploitation and offending
identified by the Royal Commission into the New South Wales Policy Force - the
Paedophilia Enquiry. The New South Wales Government funds six accommodation
programs through this program. These accommodation programs assist young
people who are at risk of sexual exploitation, homeless or at risk of entering the
juvenile justice system because of the former reasons.”
Bree Cook, Fiona David and Anna Grant (2005) Sexual Violence in Australia
Australian Institute of Criminology Research and Public Policy Series No. 36
(2001) at http://www.aic.gov.au/publications/rpp/36/part5.pdf
The reports notes that “sexual assaults are more likely to occur in a residential
location than any other.” (Conclusions at p. 8)
NSW POLICE DEPARTMENT
Working with Local Aboriginal Communities: Audit of the implementation of
the NSW Police Aboriginal Strategic Direction (2003-2006) April 2005
Following the Royal Commission into Aboriginal Deaths in Custody, NSW Police
committed itself to developing and implementing a strategy to address the causes of
38
tension in its relationship with Aboriginal communities across NSW. This approach
has taken the form of a series of three-year strategic plans, the most recent of which
– the Aboriginal Strategic Direction (2003 – 2006) – was released in June 2003.
The Aboriginal Strategic Direction is part of broader government policy initiatives
aimed at requiring all service providers to foster more consultative, outcome-driven
approaches to engaging local communities and involving all government agencies in
Aboriginal justice initiatives.
The Aboriginal Strategic Direction is built around six key objectives:
• Strengthen communication and understanding between Police and Aboriginal
people
• Increase Aboriginal cultural awareness throughout NSW Police
• Improve community safety by reducing crime and violence within the Aboriginal
community
• Reduce Aboriginal people’s contact with the criminal justice system
• Divert Aboriginal youth from crime and anti-social behaviour
• Target Aboriginal family violence and sexual abuse
The NSW Interagency Guidelines for Child Protection Intervention (2000) NSW
Government
The role of the NSW Police Service in child protection is to recognise, report and
investigate child abuse and neglect, and initiate legal proceedings for child abuse
and neglect offences under the Crimes Act 1900 and the Children & Young Persons
(Care & Protection) Act 1998. The Police Service, with the Department of
Community Services, is a designated statutory authority responsible for the care and
protection of children and young people, under the Children & Young Persons (Care
& Protection) Act 1998. In addition police are the designated authority for applying
for apprehended violence orders on behalf of children and young people as required
under section 562C(3) of the Crimes Act 1900. Police assist with ensuring the safety
and security of children and young people, their families and the workers in agencies
involved in child protection intervention.
39
Jacqueline Fitzgerald And Don Weatherburn (2001) Aboriginal Victimisation
and Offending: the Picture from Police Records NSW Bureau Of Crime
Statistics And Research, Bureau Brief.
The paper reveals the extent of over-representation of Aboriginal people among
victims of crime and offenders, with particular attention to offences against Aboriginal
women and children. Alarmingly, the data showed that Aboriginal people are
between 2.7 times and 5.2 times more likely than residents of NSW as a whole to
become victims of violent crime, and Aboriginal women are between 2.2 and 6.6
times more likely to become victims of crime than NSW women, generally. For
example, rates of sexual assault for Aboriginal women (per 100,00) were 251.7
compared to 101.4 for NSW women as a whole.
In examining the relationship between Aboriginal offenders and Aboriginal victims,
the Bureau found that Aboriginal men commit most violent offending against
Aboriginal women and children. Aboriginal people are over represented in almost all
categories (except property crimes), and it was suggested that Aboriginal people are
generally at a greater risk of both offending and of falling victims to crime, which
proposes the immediate challenge of finding ways to give immediate and longer term
relief from crime to Aboriginal victims, especially Aboriginal women and children,
without further increasing the already high rates of Aboriginal contact with the
criminal justice system.
Bree Cook, Fiona David and Anna Grant (2001) Sexual Violence in Australia
Australian Institute of Criminology Research and Public Policy Series No. 36
“Police statistics do not…..tell us whether the victim was intellectually impaired,
under the influence of alcohol or from a certain ethnic group.” (at p.19)
Wood, The Hon Justice J.R.T. (1997), “The management of the paedophile”,
Royal Commission into the New South Wales Police Service, Final Report,
Volume V: The Paedophile Inquiry, Government of the State of New South
Wales, Sydney, pp. 1251–91.
40
The amended terms of reference, relevant to the paedophile inquiry, require the
Royal Commission to inquire into:
-
the impartiality of the Police Service and other agencies in investigating
and/or pursuing prosecutions including, but not limited to, paedophile activity
-
whether any members of the Police Service have by act or omission protected
paedophiles or pederasts from criminal investigation or prosecution and, in
particular, the adequacy of any investigations undertaken by the Police
Service in relation to paedophiles or pederasts since 1983;
-
investigate any matters deemed necessary and relevant which may have
occurred prior to 1983;
-
whether the procedures of, or the relationships between the Police Service
and other public authorities adversely affected police investigations and the
prosecution, or attempted or failed prosecution, of paedophiles or pederasts;
-
whether the existing law prohibiting crimes involving paedophilia and
pederasty are appropriate and sufficient to effectively prosecute persons
accused and punish persons convicted of those crimes or other related crimes
of sexual abuse.
-
whether penalties currently prescribed for crimes involving paedophilia and
pederasty are appropriate and a sufficient deterrent to the commission of
those crimes;
-
whether Government departments and agencies have sufficiently effective
monitoring and screening processes to protect children in the care of or under
the supervision of Government departments and agencies from sexual abuse;
if not, what measures should be put in place to provide effective protection in
this respect; and,
-
whether Police Service investigatory processes and procedures and the
criminal trial process are sufficient to effectively deal with allegations of
paedophilia and pederasty.
DPP PROSECUTIONS
D Lievore (2005) “Prosecutorial Decisions in Adult Sexual Assault Cases” in
Trends and Issues in Crime and Criminal Justice.
41
The report begins with a brief discussion of the concept of discretion as it applies
within the local context, as much of the literature on this topic has been written in the
United States, where the role and function of prosecutors differs from that of their
Australian counterparts. The literature review provides a comprehensive if not
exhaustive overview of current issues and debates in the field. As far as possible,
the review focuses on studies conducted after the introduction of major legal
reforms.
“Prosecutorial agencies are often critisized for their performance in prosecuting
sexual assault. A lack of external transparency means there is little knowledge about
the specific criteria used in decisions to proceed with or discontinue prosecutions.”
M. Cunneen (2004) “Prosecuting Sexual Assault: The Complexities and
Difficulties”, Conference Paper: Hilton on the Park, Melbourne, Australia 29-30.
“Sexual assault trials have become the most complex matters which come before the
criminal courts. They have always presented their own peculiar problems. Unlike the
case in murders, thefts and non-sexual assaults, the prosecution must establish the
threshold proposition that a crime has indeed been committed. Only then does it
become necessary to enquire who committed it.”
“The unlikelihood of pleas of guilty means that persons alleging sexual assault are
almost always required to give evidence in court and muster the resources
necessary to give an account of the events, maintain it when challenged and
continue to be composed throughout searching cross-examination about areas of
their lives (some of which may do them no credit) with which the accused is well
acquainted because of the association between them. Sexual assault trials inevitably
involve a broad-ranging and sustained attack on the major witness’s credit.”
Denise Lievore (2004) Victim credibility in adult sexual assault cases Trends &
Issues in Crime and Criminal justice No. 288.
42
“This paper presents a thematic analysis of interviews with Crown Prosecutors from
five Australian jurisdictions. The interviews shed light on the practical factors that are
taken into account in decisions to proceed with or discontinue sexual assault cases,
as well as prosecutors' views of what constitutes victim credibility.” (Toni Makkai,
Director).
It also presents selected findings from an Australian Institute of Criminology study of
prosecutorial decision-making in adult sexual assault cases (Lievore 2004). The
study involved statistical analysis of DPP case file data and qualitative analysis of
data generated through semi-structured interviews with Crown Prosecutors. It is the
first Australian study on this topic to be conducted in multiple jurisdictions and one of
a few in which prosecutors have been invited to share their experience and views.
The aim of this paper is to elucidate the case-by-case considerations that turn
prosecutorial guidelines into action, specifically by presenting a thematic analysis of
interview data pertaining to factors that prosecutors take into account when
assessing victim credibility and deciding whether to prosecute.”
Victims who are inarticulate, educationally or intellectually disadvantaged, have
emotional problems, or come from Indigenous or non-English speaking
backgrounds, can be disadvantaged in the trial process, if, for example, they are
unable to explain why they acted in certain ways.
The NSW Interagency Guidelines for Child Protection Intervention (2000) NSW
Government
“After criminal charges have been laid by police in relation to sexual assault offences
or serious offences involving violence against children or young people, the police
will forward a brief of evidence to the Office of the Director of Public Prosecutions.
That Office will screen the brief and allocate it to a lawyer to prosecute or to brief and
if necessary instruct a Crown Prosecutor. At this stage the Office of the Director of
Public Prosecutions assumes responsibility for the conduct of the criminal
proceedings.” (at p. 155)
43
“The role of the Office of the Director of Public Prosecutions in child protection is to
conduct criminal and related proceedings with respect to sexual and other serious
offences against children and young people.”
DEPARTMENT OF CORRECTIVE SERVICES
Lievore, (2004) Recidivism of Sexual Assault Offenders: Rates, Risk Factors
and Treatment Efficacy.
Overall, the characteristics of sexual offenders are similar to those of the general
offender population: they tend to be young, single, white males from all
socioeconomic strata, with a disproportionate number of offenders from Indigenous
and other socially marginalised groups. A small number of specific predictors of
sexual recidivism have been identified, although they are not present for all types of
sexual offenders. These include:
-
sexual deviance;
-
criminal history, especially a prior history of sexual offending;
-
age;
-
early onset of offending; (p. 7)
Alfred Allan and Deborah Dawson (2004) “Assessment of the Risk of
Reoffending by Indigenous Male Violent and Sexual Offenders” in Trends &
Issues in Crime and Criminal Justice No. 280.
Modern corrections practice requires an assessment of the risk of reoffending on at
least two levels. First, risk assessments are necessary to decide which offenders
should be targeted for rehabilitation. Second, risk assessment is necessary to deal
with the increasing demand by the public and politicians that offenders, who are at a
high risk of reoffending, especially violent and sexual offending, should not be
released prematurely. This paper reports on a risk assessment tool that has been
developed specifically for Indigenous offenders. However the research has found
that further work is required on developing tools for the various sub-groups of violent
and sexual offenders.
44
Lievore, (2004) Recidivism of Sexual Assault Offenders: Rates, Risk Factors
and Treatment Efficacy.
Discussing Sex Offender Programs for Indigenous Offenders Lievore notes that
“levels of sexual violence are disproportionately high in post-colonial Indigenous
peoples. While there is no single cause, there is a general consensus that European
contact has contributed to the undermining of traditional values and practices that
upheld respect, equity and justice. Boys are affected as victims, witnesses and
perpetrators of sexual violence. Most sexual assaults are not reported to police, as
Aboriginal peoples regard the criminal justice system as an inappropriate response
to sexual violence—as part of the problem, rather than a solution to it. In Australia,
this is compounded by the fear that the perpetrator, if jailed, will be the next
Indigenous death in custody” (citing Hylton 2002; Lievore 2003).
“It has become increasingly clear that mainstream intervention programs are not only
failing to address the treatment needs of Indigenous offenders, but that the
ideologies, values and beliefs underlying the programs disadvantage Indigenous
inmates.”
“Cultural factors can impede accurate assessment of Indigenous offenders’
recidivism risk and treatment needs in various ways. For example, gender
differences between therapist and inmate may inhibit discussion during the clinical
interview and offenders who are incarcerated outside of their communities are likely
to feel abandoned, displaced and confused. Poor English language skills or literacy
skills may impact on assessments of functional intelligence, hinder the offender’s
ability to participate in group discussions, or to comprehend concepts explained
verbally or through written material. As a result, some Indigenous offenders may be
assessed as ineligible to attend, while others who do gain admission may be unable
to achieve treatment goals.”
Klein, K. (2003) Identifying and Treating Sex Offenders: Current Approaches,
Research, and Techniques The Haworth Maltreatment & Trauma Press, New
York.
45
Issues and tools involved in the evaluation and treatment of adult sex offenders. This
book provides you with current data regarding what is known about sex offenders, so
that appropriate assessment, treatment, and prevention methods can be developed
and utilized. Experts in the field discuss controversial topics—including diagnoses,
classification, public notification, and risk assessment—to help psychologists,
therapists, and social workers better understand this specialized population.
Johns, R. (2003) Child sexual offences: an update on initiatives in the criminal
justice system Sydney, NSW: Research Service, Parliament of New South
Wales Briefing paper no.20/2003 and Online at
(http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/9A466D78D50E
C630CA256ECF0009F0C5
With a focus on New South Wales, this briefing paper examines some of the
developments in 2002-2003 in court procedures involving child sexual assault
complainants, and explores methods of monitoring convicted child sex offenders.
Comparisons are made to other Australian jurisdictions and to the United Kingdom.
The paper includes information about legislative changes; the Specialist Child
Sexual Assault Jurisdiction pilot program, which commenced in March 2003 at
Parramatta; registration of child sex offenders; child sex offender orders; and policing
paedophiles on the Internet.
R. Geffner, K. Crumpton Franey, T. Geffner Arnold & R. Falconer Eds. (2003)
Identifying and Treating Sex Offenders: Current Approaches, Research and
Techniques The Haworth Maltreatment & Trauma Press New York,
Introduction to the significant issues for adult sex offenders. Prevalence rates are
discussed, but these are more difficult to narrow down due to definitional problems.
In additional controversial issues involving diagnoses, classification, public
notification and risk assessment are introduced.
DEPARTMENT OF JUVENILE JUSTICE
46
Aboriginal Over-representation Strategic Plan NSW Department of Juvenile
Justice, September (2001)
The publication is in two parts. The key result areas, strategies and outcomes are
listed at the beginning. The history of the department’s consultation process, the
research material, and a profile of Aboriginal young offenders is given in the
background material located in the second part of the report. The strategy is the
result of consultations with Aboriginal communities and staff within the department.
However, I would like to emphasise that the department and I see this as a dynamic
document that can only benefit from constant updating and input from anybody with
an interest in this most important area.
Clinical Characteristics of Australian Juvenile Sex Offenders; Implications for
Treatment – Monograph Series No. 2 1999, Collaborative Research Unit
The purpose of this study was to evaluate a series of pre-sentence reports of a
sample of juvenile sex offenders with the aim of developing the first developmental
and clinical profile of Australian juvenile sex offenders. Assessed were variables of
aetiological and clinical relevance, including developmental, cognitive, educational,
psychosexual and psychosocial factors. The profile findings identified juvenile sex
offenders as having problems across multiple domains of functioning, including intra
personal, social, educational and sexual. The findings provide a clear mandate for
the development of intensive, multi systemic and multi modal treatment programs in
order to address the wide range of problems related to this group. (Author abstract,
edited)
Profiling Australian Juvenile Sex Offenders: Offenders and Offence
Characteristics – Monograph Series No. 1 1999, Collaborative Research Unit
All of the available studies describing the demographic and offence characteristics of
juvenile sex offenders have been derived from studies conducted outside Australia.
Consequently, it remains to be established whether Australian samples are
comparable to their overseas counterparts with respect to these characteristics.
47
Accordingly, this study evaluated a series of pre-sentence reports with the aim of
identifying relevant characteristics of juvenile sex offenders.
The contents of 70 reports representing juvenile sex offenders in contact with the
New South Wales Juvenile Justice Department for the period 1996 to 1998 were
analyzed according to a structured protocol developed by the authors. The protocol
assessed demographic and offence characteristics of offenders. All offenders were
male. The majority were Anglo-Celtic but twenty percent were Aboriginal, Pacific
Islander or Asian. Indecent assault and aggravated indecent assault were the most
common offences, generally perpetrated against a single victim. Forty-three percent
of the sample had committed the same offence on a prior occasion and therefore
almost half of the young sex offenders involved in this study were recidivists. One
fifth of the offenders in the current study had also committed a non-sexual offence
prior to or during the commission of the sexual offence. Methodological issues,
particularly related to the under-estimation of the frequency and seriousness of
offending, are discussed. Comparisons of the current sample to those reported in
overseas research and the legal implications are described. Finally, suggestions are
made for improving the reporting format to ensure the collection of accurate and
detailed information on juvenile sex offenders in future research.
2003 NSW Young People in Custody Health Survey: Key Findings Report, NSW
Department of Juvenile Justice
The NSW Department of Juvenile Justice conducted this survey, with the
collaboration of NSW Corrections Health Service and The University of Sydney.
This project was a comprehensive physical and mental health survey of NSW young
offenders in custody, done in collaboration with Corrections Health Service (CHS)
and the University of Sydney. It was modelled on the Corrections Health Service
Inmate Health Surveys (1997 & 2001) and the National Survey of Mental Health and
Well-being of Children and Adolescents (Sawyer et al. 2000).
Harris, L. (2003) “Research links child maltreatment with juvenile offending” in
Indigenous Law Bulletin v.5 no.22 Jan – Feb.
48
“This article reviews a recent report released by the Australian Institute of
Criminology that identifies a causal relationship between child maltreatment and
juvenile offending. The authors of the report believe that there is a significantly
increased risk of children offending before the age of 18 if they have been
maltreated. The report also indicates that Indigenous children who have been
maltreated are more likely to offend than non-Indigenous children, and that
Indigenous children are more likely to suffer maltreatment in the first place. The
report concludes that child abuse prevention is the key to reduced rates of juvenile
offending.”
The NSW Interagency Guidelines for Child Protection Intervention (2000) NSW
Government
The role of the Department of Juvenile Justice in child protection is to recognise and
report suspected risk of harm to children and young people in its care or who are
under the supervision of the Department. The Department will act to assist in the
protection of these children or young people.”
As a service provider it is the responsibility of the DJJ to provide risk assessment
and case planning for all young offenders in custody or under supervision in the
community who have committed sex offences against children, and a range of
interventions from individual to group counselling and treatment.
NSW ATTORNEY GENERALS DEPARTMENT
A Review of Aboriginal and Torres Strait Islander Peoples’ Compensation and
Counselling Claims Lodged with the Victims Compensation Tribunal 2001-2003
Victims Services, NSW Attorney General’s Department, July (2004)
The review reports that Indigenous people are significantly over-represented in the
NSW criminal justice system, as both offenders and victims. Assault, domestic
violence and child sexual abuse are the most common acts of violence. The majority
49
of Indigenous applicants lodged only compensation claims, with a very small number
lodging only counselling applications. (p.1)
Terare, M (2003) Delivering a service to Aboriginal people. In: Practice and
prevention: contemporary issues in adult sexual assault conference. Sydney,
NSW: NSW Attorney-General's Department, Crime Prevention Division.
The effects of colonisation are still being felt in Aboriginal communities, and the
author considers what effects this has on Aboriginal victims of trauma. She
discusses a project she worked on in NSW that explores community solutions to
challenge the impact of trauma resulting from family violence, sexual assault and
child abuse, primarily through developing a curriculum that reflects communities'
needs in relation to the abuse.
Model Criminal Code Officers Committee of the Standing Committee of the
Attorneys-General, (1999) Chapter 5: Sexual Offences Against the Person
Report.
Cunneen, C. (2001) The Impact of Crime Prevention on Aboriginal
Communities Crime Prevention Division and the Aboriginal Justice Advisory
Council of the NSW Attorney General’s Department.
This research reviews current literature on crime prevention policies and programs
which have a focus on crimes committed by or against Aboriginal people. In
particular, practical crime prevention measures to reduce crimes of violence and
property are considered. Also included in this research are specific programs which
have been developed to reduce Indigenous contact with the criminal justice system.
This review takes a broad look at what might constitute crime prevention and does
not confine itself to only those measures which fall within programs defined as ‘crime
prevention’ by government agencies. Many agencies and programs contribute to
crime prevention although their core business activity may not be formally associated
with crime prevention at all. Such a broad view is particularly important in relation to
Indigenous people because many of the programs which have started in
50
communities have arisen from practical grassroots concerns with developing
measures to deal with crime and offending behaviour in the face of the apparent
failure of mainstream justice mechanisms.
DEPARTMENT OF EDUCATION AND TRAINING
The NSW Interagency Guidelines for Child Protection Intervention (2000) NSW
Government
“The role of the Department of Education and Training in child protection is to
promote the safety, welfare and well-being of children and young people whether
they are students, apprentices or trainees in schools, colleges, workplaces or
programs conducted by the Department or under the auspices of the Department.
Departmental employees also recognise and report children and young people
suspected to be at risk of harm.”
Australia’s Combined 2nd and 3rd reports to the UN Committee on the
Convention on the Rights of the Child
Australia’s most recent periodic report to the CRC Committee states that “Australian
school systems are committed to promoting respect for all peoples and to ensuring a
safe school environment whilst also respecting the human rights of children. This
includes the development of anti-racism programs and policies to combat child
sexual abuse, as well as improving school discipline processes.”
http://www.ag.gov.au/agd/www/Agdhome.nsf/Page/RWP2EAD93C62ABA58C8CA25
6DA3001DA432?OpenDocument#c8 as at 15 February 2005)
Goldman, J D G; Padayachi, U K (2002) “Factors influencing school
counsellors' decision not to report child sexual abuse” in Children Australia
v.27 no.1.
“Using a state-wide sample of 122 school counsellors (52 males and 70 females) in
Queensland Australia, factors which influenced their decision not to report child
sexual abuse were examined. These factors were a lack of evidence; lack of
51
confidence in the authorities to accurately evaluate or protect sexually abused
children; adverse effects on the family's social standing in the community; potential
to break up the family; and the fear of breaking counsellor-client confidentiality.
Further, school counsellors were not likely to report all cases of child sexual abuse
when they suspected it, thus confirming the popular belief that child sexual abuse is
under-reported by them. (Journal abstract)”
Bree Cook, Fiona David and Anna Grant (2001) Sexual Violence in Australia
Australian Institute of Criminology Research and Public Policy Series No. 36.
The report notes the value of early intervention programs. There is “sufficient
evidence exists to suggest that the task of changing a child’s behaviour patterns
after the age of eight requires significantly more resourcing, with reduced chances of
success, than if the problem was tackled in the earliest schooling years.”
Early intervention is recommended. It is noted in Pathways to Prevention, a report
documenting the theory and practice of early intervention programs in Australia
(National Crime Prevention 1999) that:
…it is likely to be strategically effective to attempt to divert people from harmful
pathways before maladaptive patterns of behaviour are well entrenched. Protective
and anticipatory action is more powerful and less painful than clinical or punitive
interventions after a history of offending. Indeed, some sequences of offending are
manifest in the pre-school years through aggressive and hostile behaviour. In these
cases, early interventions have more immediate as well as long-term goals. (National
Crime Prevention 1999, p. 10)
From a very young age, public education could address issues such as conceptions
of masculinity and gender, appropriate sexual behaviour, relationships,
communication and conflict resolution skills.”
DEPARTMENT OF ABORIGINAL AFFAIRS
C. Thomas “Sexual Assault: Issues for Aboriginal Women” Aboriginal
Women’s Policy Coordinator, Office of Aboriginal Affairs, New South Wales
52
There are a number of factors that need to be considered and further explored when
trying to develop appropriate strategies for agencies attempting to respond to the
different needs of Aboriginal women. This paper briefly deals with some of those
issues.
The following points and quotes were made by a number of Aboriginal women
regarding sexual assault and their own issues of concern. The remarks do not apply
to every town and community but have been identified by individual people as
problems in their area. Generally, Aboriginal women are not reporting sexual
assaults, and a number of factors were seen to contribute to this including:
The police are slow to respond to calls of sexual assault;
police officers' own attitudes determine how quickly they come out and how much
importance they place on calls;
police stations may not be open when needed; and
most of the police in country towns are male¾Aboriginal women need to be able to
talk to female police officers.
From the DAA website:
“In December 2001 and March 2002 the NSW Department of Aboriginal Affairs cohosted two roundtable meetings on sexual assault in Aboriginal communities. These
meetings brought together a number of Aboriginal community workers from across
the State and relevant government agencies to discuss appropriate ways forward in
this urgent issue. These roundtable meetings have been an important step for
government agencies and community workers to get together and build on real and
lasting partnerships.”
The two roundtable meetings aimed to provide advice on strategies targeting sexual
assault in Aboriginal communities particularly looking at:
short term
medium to long term
long term strategies
53
A list of actions was developed and consolidated by participants at the roundtable
meetings. A committee has been established to manage the implementation of the
roundtable actions.
JUDICIAL COMMISSION OF NSW
G. Hazlitt, P. Poletti & H. Donnelly (2004) Sentencing Offenders Convicted of
Child Sexual Assault Judicial Commission of NSW
This monograph focuses on some recent developments relating to the law on child
sexual assault and analyses sentences handed down to 467 offenders in the NSW
District Court between 2000–2002. It gauges the extent to which many of these
offences were committed years before they were prosecuted in the courts. It also
examines New South Wales Court of Criminal Appeal child sexual assault decisions
for the period 2000–2003.
This study does not seek to estimate the prevalence of these notoriously underreported crimes but focuses on those offenders who are actually brought to justice
and punished.
New South Wales Law Reform Commission Sentencing: Aboriginal Offenders
Report 96, October 2000.
This Report into the sentencing of Aboriginal offenders forms part of a general
referral to the Commission in 1995 by the then Attorney General, the Hon Jeff Shaw
QC, to review sentencing law in New South Wales. The Commission published a
report on the general principles of sentencing (LRC 79) in December 1996. This
Report focuses on the special issues which arise in relation to the sentencing of
Aboriginal offenders. The Report details the over-representation of Aboriginal
people in the criminal justice system and notes that this disparity is increasing.
54
OMBUDSMAN
The NSW Ombudsman (2000): Investigating Complaints- A Manual for
Investigators and The Complaint Handler’s Toolkit (2000).
The Ombudsman Act 1974 require the head of agency of all public authorities and
certain non-government agencies to notify the Ombudsman within 30 days of
becoming aware of any child abuse allegation or conviction made against the
employee of a designated agency [section 25C(1)]. (Interagency Guidelines at p.
108)
The NSW Ombudsman can require any information relating to an investigation it is
undertaking. The Ombudsman can also require an agency to provide information
and/or documents, including records of interview with respect to agency
investigations of child abuse allegations against an employee.
Sections 18 and 25E(3) Ombudsman Act 1974.
Exchanging information for requests for assistance and in child protection
intervention is not a breach of professional ethics or standards of professional
conduct and does not carry liability for defamation or constitute grounds for civil
action. (interagency guidelines at p. 65).
The NSW Interagency Guidelines for Child Protection Intervention (2000) NSW
Government
The role of the NSW Ombudsman in child protection is to monitor the investigation of
allegations and convictions of child abuse made against employees in government
and certain non-government agencies, such as all schools, child care centres and
agencies providing substitute residential care. This role arises as a result of recent
changes to the Ombudsman Act 1974. The Act requires the Ombudsman to
determine whether an investigation of a child abuse allegation or conviction against
an employee of a designated agency has been properly conducted and whether
appropriate action was taken as a result of the investigation.”
55
OFFICE OF THE CHILDREN’S GUARDIAN
The Office of the Children’s Guardian is an organisation set up to promote the best
interests and rights of children and young people in out-of-home care. It is an
independent organisation that reports directly to the Minister for Community
Services. The Children’s Guardian can make special reports to Parliament and to the
Minister.
Chapter 10 of the Children and Young Persons (Care and Protection) Act 1998,
establishes a statutory position of the Children’s Guardian whose functions are to:
promote the best interests of all children and young persons in out-of-homecare
ensure that the rights of all children and young persons in out-of-home care are
safeguarded and promoted; and,
accredit designated agencies and to monitor their responsibilities under the Act and
the regulations.
COMMISSION FOR CHILDREN AND YOUNG PEOPLE
The NSW Interagency Guidelines for Child Protection Intervention (2000) NSW
Government
The Commission for Children and Young People developed the Working with
Children Check. The Commission can request information on the Working With
Children Check and agencies have a duty to comply with such requests. (at p. 65).
The Commission for Children and Young People Act 1998 establishes the
Commission for Children and Young People as an independent organisation with an
aim to make NSW a better place for children and young people.
One of the major functions of the Commission for Children and Young People is to
facilitate screening to determine the suitability of people for child-related
employment. Part 7 of the Act, Employment Screening, sets out the requirements to
screen people seeking child-related employment to determine their suitability.
56
The Act requires that all people commencing paid work that involves direct contact
with children where that contact is unsupervised, foster carers, ministers of religion
and members of religious organisations, must be checked. The checking process
incorporates a check for: Relevant Criminal Records: A criminal record of a person
with respect to an offence involving sexual activity, acts of indecency, child abuse or
child pornography, if the offence was committed in NSW and was punishable by
imprisonment for 12 months or more, or if it was committed elsewhere and would
have been punishable by 12 months or more imprisonment if it had been committed
in NSW. (p. 162)
COURTS (ADULT/JUVENILE)
The NSW Interagency Guidelines for Child Protection Intervention (2000) NSW
Government
“The Children’s Court cannot conclude that the basic needs of a child or young
person are not being met on the grounds of poverty or disability alone.” (at p.55)
Judicial Commission of NSW (2004) Sentencing Offenders of Child Sexual
Assault Monograph.
“The monograph analysed 476 cases in the NSW district court over the past 3-4
years. However it does not assess ethnic particularities i.e. Aboriginality, but focuses
on age and gender. Looks at recent developments in prosecution, and recent
legislative changes. Notes there is a substantial delay between the commission of
the offence and the charge, due to the reticence of victims to speak out. Question of
whether the law of the time of the commission of the offence should apply or the
more recent law, which are also more punitive.”
I. Potas, J. Smart, G. Brignell, B. Thomas & R. Lawrie (2003) Circle Sentencing
in New South Wales: A Review and Evaluation Judicial Commission of NSW
October.
Circle sentencing was introduced in New South Wales on a trial basis at Nowra in
57
February 2002. This report reviews and evaluates the first 12 months of the trial’s
operation. The Judicial Commission of New South Wales and the NSW Aboriginal
Justice Advisory Council have worked together to produce this monograph with a
view to describing the nature of circle sentencing, how it operates in practice, and
the impact it has had on the cases dealt with by the circle court.
The evaluation reveals that circle sentencing at Nowra has succeeded on a number
of levels. For example, this novel procedure:
- reduces the barriers that currently exist between the courts and Aboriginal people
leads to improvements in the level of support for Aboriginal offenders
- incorporates support for victims, and promotes healing and reconciliation
- increases the confidence and generally promotes the empowerment of Aboriginal
persons in the community introduces more relevant and meaningful sentencing
options for Aboriginal offenders, with the help of respected community members
helps to break the cycle of recidivism.
Circle Sentencing is not available for sexual assault matters.
P. Gallagher, Hickey. P & D. Ash, Child Sexual Assault: An Analysis of Matters
Determined in the District Court of New South Wales During 1994, Judicial
Commission of New South Wales, (1997) Sydney.
This monograph focuses on some recent developments relating to the law on child
sexual assault and analyses sentences handed down to 467 offenders in the NSW
District Court between 2000–2002. It gauges the extent to which many of these
offences were committed years before they were prosecuted in the courts. It also
examines New South Wales Court of Criminal Appeal child sexual assault decisions
for the period 2000–2003.
This study does not seek to estimate the prevalence of these notoriously underreported crimes but focuses on those offenders who are actually brought to justice
and punished.
58
The study reports that the courts have recognised a change in community attitude
and have correspondingly increased sentences for child sexual assault. Given that
many sexual assault offences come to light many years after they were committed,
the question arises as to whether offenders should be sentenced according to the
sentencing patterns applicable at the time of the offence or at the time of sentencing.
This issue has been resolved by the Court of Criminal Appeal holding that when
considering a “stale crime” where sentencing practice has moved adversely against
an offender, the sentencing pattern at the date of the commission of the offence is
the appropriate reference point.
Abolishing Prison Sentences of Six Months or Less: Final Report NSW Sentencing
Council, August 2004
There is clear evidence that “alternatives to prison specifically targeted to Aboriginal
offenders (such as the Circle Sentencing Pilot) have an extremely positive effect on
reducing re-offending, and that any general reform to prison sentences of 6 months
or less should be clearly articulated with current policies specifically developed for
Aboriginal people. The development of alternative sentencing options to short prison
sentences clearly involves criminal justice intervention programs.” (p. 15)
“That is, “Part 4 of the Criminal Procedure Regulation 2000 makes provision for
‘intervention programs’ to be declared in the regulations. Clause 11D of the Criminal
Procedure Regulation 2000 declares the circle sentencing program as and
‘intervention program’ for the purpose of part 4 of the Act.” (p. 15)
Bureau of Crime Statistics and Research NSW
“An evaluation of the New South Wales Child Sexual Assault Specialist Jurisdiction
Pilot is due to be released in September/October 2005.” (reported on the website on
20 June 2005)
The NSW Interagency Guidelines for Child Protection Intervention (2000) NSW
Government
59
The role of courts and tribunals in child protection is to provide independent and
impartial resolution of legal disputes involving or affecting children and young people.
These disputes can include criminal matters in which a person is charged with an
offence against a child, decisions about whether a person convicted of a serious sex
offence may be employed in child-related employment, care matters in which it is
alleged that a child is at risk of harm and in need of care due to abuse or neglect,
and disputes between separating parents about residence, contact or other specific
issues relating to their children.
The courts and tribunals of NSW, which play a role in child protection, are
administered by the NSW Attorney General’s Department and include the Supreme,
District and Local Courts, the Children’s Court, the Industrial Relations Commission
and the Administrative Decisions Tribunal. The Family Court of Australia also plays a
role in child protection. The Commonwealth Attorney General’s Department
administers this court.
The role of the Children’s Court Clinic in child protection is to assist the Children’s
Court to discharge its role and responsibilities in certain matters. Where ordered to
do so by the Children’s Court, it is the role of the Children’s Court Clinic to prepare
an independent clinical assessment of a child, a young person and/or an adult, who
has or who is seeking to have parental responsibility for the child or young person,
upon request by the Children’s Court. Such assessments are independent, in the
sense that the expert is not on the side of any of the parties to the proceedings.”
B.
NON-GOVERNMENTAL SERVICE PROVIDERS
NCOSS
Wadiwel, Dinesh ”NCOSS visits far west NSW: Broken Hill, Lighning Ridge,
Walgett and Moree” in NCOSS News v.31 no.11 Dec 2004: 6-7
The Council of Social Service of New South Wales conducted regional visits to
Broken Hill, Lightning Ridge, Walgett and Moree in July 2004 to make contact with
communities and gather data for its pre budget submission to Government. This
60
article presents information on conditions in these areas in relation to: child abuse,
sexual assault, domestic and family violence; children and young people at risk;
education and employment; health; housing and homelessness; Aboriginal people
and law and order; and transport.
EDUCATION CENTRE AGAINST VIOLENCE
Funded by NSW Health and located at Western Sydney Area Health Service, the
Education Centre Against Violence has undertaken a series of initiatives:
Big Shame Video
The 20-minute video is a training video about sexual assault in Aboriginal
communities, prepared for Aboriginal workers and community members and nonaboriginal workers in Aboriginal communities and organisations. It was developed as
a result of extensive consultation with Aboriginal communities. It is a very powerful
depiction of the experience of Emma, a young girl who is being sexually assaulted by
her grandfather. It shows the seriousness of sexual assault and the difficulties facing
a family and a community where sexual assault is occurring. It encourages
discussion about the effects of child sexual assault, the tactics used by offenders to
trap children, and what needs to happen to keep children safe. Specific funding was
obtained from the National Women’s health Program and NSW Health. Existing staff
did the developmental work, and video production, background artwork, layout and
design were contracted out. The video took about one year to develop. Promotion,
distribution and evaluation are on-going.
NATIONAL ASSOCIATION OF SERVICES AGAINST SEXUAL VIOLENCE, CASA
HOUSE, MELBOURNE.

Dean, C., Hardiman, A. & Draper, G. 1998, National Standards of Practice
Manual for Services Against Sexual Violence, National Association of
Services Against Sexual Violence, CASA House, Melbourne.
61
NATIONAL CHILD PROTECTION CLEARINGHOUSE

Stanley, J, Tomison AM and Pocock, J 2003, Child abuse prevention issues
no. 19: Child abuse and neglect in Indigenous Australian communities,
Spring 2003, Australian Institute of Family Studies, Melbourne.[5]
“An issues paper produced by the National Child Protection Clearinghouse surveys
the scale of Indigenous child abuse and neglect (including the difficulty in obtaining
comprehensive statistics), causes, Indigenous communities' reaction to prevention
and intervention strategies, barriers to maximising service effectiveness and
suggestions for dealing with the problems. The paper is available from the NCPC
web site.” (on file)
C.
ABORIGINAL COMMUNITY-CONTROLLED SERVICE
PROVIDERS TO ABORIGINAL CHILD SEXUAL ASSAULT
NACCHO

NACCHO manifesto on Aboriginal Well-being (1993)
http://www.naccho.org.au/Paper1.html
“The necessity to acknowledge the reality that Aboriginal people have never ceded
sovereignty of their land nor their rights to self determination. Coming to terms with
this reality can be achieved by understanding recompense by the Australian
governments, the successors of Colonial rule, and its immigrant settler population,
as paying the debt for destroying the economic basis of Aboriginal society in the
confiscation of its territory, land and resources.”
“The acknowledgement that this destructive process is directly responsible for the
current state of Aboriginal ill-health and that recognition of this fact requires
Australian governments to ensure that Aboriginal community controlled health
services are funded at a level necessary to achieve the state of Aboriginal health
defined by NACCHO.”
62
SNAICC

Bedford, K. (2002) Through young black eyes: a handbook to protect
Indigenous children from the impact of family violence and child abuse
Northcote, Vic: Secretariat National Aboriginal and Islander Child Care.
“Aboriginal and Torres Strait Islander children are over-represented in child
protection cases and are much more likely to be removed from their families than
other Australian children. Partnerships Against Domestic Violence, a Commonwealth
Government initiative coordinated by the Status of Women, funded this publication. It
focuses on the particular impact of family and domestic violence on children and
children who are subjected to other forms of child abuse and neglect, and seeks to
raise awareness of the relevant laws, legislation and reporting requirements of the
respective States and Territories. This publication provides basic information to help
clarify the issues of family violence and child abuse for communities, especially
those lacking specific child protection services. A directory of related agencies,
services and resources is also included.”

Pocock, J. (2001)Their future, our responsibility: making a commitment to
Aboriginal and Torres Strait Islander children. Fitzroy, Vic: Secretariat of
National Aboriginal and Islander Child Care and online at
http://www.familiesaustralia.org.au/links/pol3.pdf
“Recognising the importance of children to the Aboriginal and Torres Strait Islander
community, this paper looks at some of the major issues impacting on them. The
author discusses the current practice of the removal of children rather than
addressing and correcting the issues that lead to family breakdown and child
neglect. These issues, he believes, largely stem from entrenched societal problems
including poverty and unemployment, and attempts to correct these beforehand
would be far more valuable than the removal of children once it is too late. He also
raises the issue of the placement of indigenous children with non-indigenous carers,
which poses a threat to their cultural identity.”
63
D.
LEGAL PROFESSION RESPONSES
ABORIGINAL LEGAL SERVICES

Wirringa Baiya Aboriginal Women’s Legal Centre - Fact Sheet at
http://wirringabaiya.org.au/Information/Factsheets/Sexual%20Assault
“Sexual abuse occurs when an adult or someone bigger than the child uses his or
her authority or power over the child, or takes advantage of the child's trust and
respect, to make the child do sexual things.”
“The offender often uses tricks, bribes, threats, guilt and sometimes physical force to
make the child do things and to stop the child from telling anyone about it.”
“In a recent report by the Aboriginal Justice Advisory Council (AJAC) "Speak Out
Speak Strong" released in August 2003 shows the abuse that Aboriginal women
prisoners faced during their lifetime. The report cites:
70% of the women surveyed said that they had been sexually assaulted as
children and most had also suffered other types of childhood abuse 78% of
the women stated that they had been victims of violence as adults, and 44%
of the women said they had been sexually assaulted as adults. Statistics
show that large numbers of Aboriginal women prisoners have been sexually
assaulted as children and as adults.” (at
http://wirringabaiya.org.au/Statistics/document_view)
C.
INTERNATIONAL RESPONSES
UN STANDARD SETTING
E. Hinze Ed.(2000) “Of Innocence and Autonomy: Children, Sex and Human
Rights” Dartmouth Publishing Company Ltd. England.
64
This book of essays celebrates ten years of the United Nations Convention on the
Rights of the Child. These essays examine sexual expressions of personality. They
show that adults are uneasy about children as sexual persons. Adult constructions of
childhood preclude acknowledgement that sexuality is part of personality throughout
the lifecycle, including the period of childhood.
A consensus that the concept of childhood is constructed by adults is evident in
these essays.
In his introductory article Eric Hinze notes the critique that the Convention
universalises cultural specific ideas about children. The child subject is transnational
and yet nowhere to be found. Socio-scientific models created by adults influence
contemporary Western concepts of childhood. The children subjects of the
Convention do not speak for themselves. Adults make laws for the children they
themselves once were and for the children to come. The love expressed in this law
making is also an expression of power. And that power operates on theories about
childhood.
UN International Covenant on Civil and Political Rights (ICCPR)
Article 24 requires that children have ‘special measures of protection’.
United Nations Convention on the Rights of the Child (CRC)
Australia ratified the (1989) UN Convention on the Rights of the Child in 1990. The
CRC requires states parties to provide periodic reports outlining compliance with the
Convention.
Australia’s most recent report to the UN CROC Committee was in 2003 and
combined its 2nd and 3rd reports. (outlined below)
65
Article 3(1) of CROC promotes the “best interests of the child as a primary
consideration”. Article 3 of the UN Convention sets out the best interests of the child
as:
In all actions concerning children by social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of the child
shall be the primary consideration.
States Parties must ensure such protection and care as is necessary for his or
her well-being, taking into account the rights and duties of his or her parents, legal
guardians or other individuals legally responsible for him or her, and take all
appropriate legislative and administrative measures.
States shall ensure that the institutions, services, and facilities responsible for the
care or protection of children shall conform with the standards established by
competent authorities, particularly in the area of safety, health, in the number
and suitability of their staff, as well as competent supervision.
Article 19
1. States Parties shall take all appropriate legislative, administrative, social and
educational measures to protect the child from all forms of physical or mental
violence, injury or abuse, neglect or negligent treatment, maltreatment or
exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s)
or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for
the establishment of social programmes to provide necessary support for the child
and for those who have the care of the child, as well as for other forms of prevention
and for identification, reporting, referral, investigation, treatment and follow-up of
instances of child maltreatment described heretofore, and, as appropriate, for judicial
involvement.
Under Article 19 (1) of the CRC, Australia agreed to:
66
-
provide 'appropriate legislative measures;
-
appropriate administrative measures, and;
-
'take educational measures' to protect children from sexual abuse.
Under Article 19 (2) state parties agree to 'provide social programs for the necessary
support of the child and carers of the child'.
Article 39
Under Article 39 'Governments shall take all appropriate measures to promote the
physical and psychological recovery and social reintegration of child victims'. In other
words, counselling and treatment programs were promised for all children in this
situation, irrespective of where they lived. Professor Briggs argues that these
undertakings have not been honoured. (http://www.aic.gov.au/conferences/2003abuse/briggs.html as at 16 February 2005)
Article 34
States Parties undertake to protect the child from all forms of sexual exploitation and
sexual abuse. For these purposes States Parties shall in particular take all
appropriate national, bi-lateral, and multilateral measures to prevent:
(a) the inducement or coercion of a child to engage in any unlawful sexual
activity;
(b) the exploitative use of children in prostitution or other unlawful sexual
practices;
(c) the exploitative use of children in pornographic performances and material.
GOVERNMENT REPORTING TO THE UNITED NATIONS

Australia's Combined Second and Third Reports to the United Nations
Committee for the Convention on the Rights of the Child - March 2003
67
The Australian government is required to provides periodic reports to the UN Treaty
Committee overseeing implementation of the Convention on the Rights of the Child.
In response to the periodic reports, the treaty monitoring committee makes
‘concluding observations’ and in response to the previous 1st periodic the CRC
Committee “expressed its belief that cases of abuse and ill-treatment of children,
including sexual abuse within the family, should be properly investigated, sanctions
applied to perpetrators and publicity given to decisions taken.” para 26
The response of the federal government to this observation is that “the Federal
Government believes that the relevant legislation and programs outlined in
Australia's First Report demonstrate that the suggested action did occur in Australia
at the time the Committee considered Australia's First Report. In addition, a number
of initiatives have been implemented since that time to strengthen the protection of
all children against sexual exploitation and abuse.” (and 503)
Australia has submitted its 2nd and 3rd reports in a combined report.
The combined 2nd and 3rd reports state the following:
“Australia has a strong record of protecting children from all forms of sexual
abuse and exploitation, with legislative, regulatory and policy measures at the
Federal, State and Territory level. Australia was one of the first countries to
take definitive action internationally by implementing legislation against child
sex tourism.” (para 499)
“Australia's National Plan of Action against the Sexual Exploitation of
Children, Tomorrow's Children, released in 2000 is the Federal Government's
response to adopting the Declaration and Agenda for Action arising from the
World Congress Against the Commercial Sexual Exploitation of Children held
in 1996.” (para 500)
“In May 1999, the report by the Model Criminal Code Officers Committee on
sexual offences proposed updated sexual offences and procedures as a
68
model for a nationally consistent approach. The report proposed that there be
severe and specific penalties for those who sexually abuse children,
particularly by perpetrators who are in a position of authority, and special
procedures for trials involving those offences. The Model Criminal Code
Officers Committee considered a range of offences dealing with sexual abuse
of children, recommending an offence of persistent sexual abuse of a child
where there is sexual contact with a child on three or more separate
occasions. All States and Territories have now adopted an offence of
persistent sexual abuse of a child, or the comparable offence of maintaining a
sexual relationship with a child.” (para 506)
Sex Offenders Register
“Federal, State and Territory Police Ministers have agreed to develop a
nationally consistent approach to the registration with police of child sex
offenders. A working party has been established to consider the issue.” (para
507)
“In New South Wales, the Child Protection (Offenders Registration) Act 2000
commenced operation in September 2001. The Act requires persons
sentenced in respect of sexual and other specified offences against children
to keep local police informed of their name, address, employment and motor
vehicle details for a period of time after their release into the community.”
(para 508)
“This Act will assist police to monitor child sex offenders in the community and
investigate child sex offences committed by recidivist offenders. It is also
anticipated to have a deterrent effect on child sex offending behaviour.” (para
509)
“The Act acknowledges the link between child sex offending and certain other
offences against children, in that it extends to persons sentenced in respect of
child prostitution, child pornography and child trafficking offences. As such, it
complies with recommendation 190 of ILO Convention 182, Worst Forms of
69
Child Labour. It also extends to relevant offences committed in other
jurisdictions.” (para 510)
“The Act contains special provisions for relevant offenders who were
themselves children at the time of committing the offence, in recognition of
their special needs and their increased responsiveness to rehabilitation.”
(para 511)
Child witness protection
“On 29 October 2001, new federal provisions were enacted to protect the
interests of child complainants and child witnesses in proceedings for federal
sex offences, including child sex tourism and sexual servitude offences. The
protective provisions recognise that child complainants and child witnesses in
sex offence proceedings are particularly vulnerable because of their age and
the nature of the crime involved. The provisions are intended to minimise the
distress and trauma experienced by child complainants and child witnesses in
giving evidence and to protect their privacy.” (para 512)
“The New South Wales Government introduced similar provisions in 1997 to
enable electronically recorded interviews with a child witness (other than a
defendant) to be admitted into evidence as part or all of a child's evidence-inchief in any criminal and certain other proceedings. This enables children to
give evidence whilst alleviating to some extent the trauma associated with
giving evidence in court.” (para 513)
“In South Australia, courts have a discretion to order the use of closed circuit
television, a screen, partition or one-way glass, and/or permit a relative or a friend to
accompany a child witness.” (para 514)
7.
OTHER AUSTRALIAN AND INTERNATIONAL LITERATURE
AUSTRALIA
70
PUBLISHED ACADEMIC LITERATURE
Monique Keel (2004) Family Violence and Sexual Assault in Indigenous
Communities - “Walking the talk” Australian Centre for the Study of Sexual
Assault
Critisizing the outcomes of the Gordon Inquiry Keel states that the “the Western
Australian Government’s response to the Gordon Inquiry has resulted in only
minimal funds being directed towards sexual assault specific services. Seventy five
million dollars (over five years) was allocated to the Gordon Implementation
Secretariat, who manage the Government’s response to the Inquiry. Of this money
only $160,000 (over four years) has been allocated to expand the Sexual Assault
Resource Centres (SARGs) (Department of Premier and Cabinet Western Australia
2004). A coordinated response between various agencies to child protection is also
happening in Western Australia.” (at p. 11)
Kovacs, K. (2002) “Overview of the Gordon Report” in Child Abuse Prevention:
National Child Protection Clearinghouse Newsletter v.10 no.2. and Online
http://www.aifs.gov.au/nch/pubs/nl2002/summer.html
In 2001, the Western Australian Government undertook an Inquiry into the Response
by Government Agencies to Family Violence and Child Abuse Complaints in
Aboriginal Communities. This article discusses steps in the compilation of the
Inquiry's findings (the Gordon Report). It outlines the key recommendations of the
Gordon Report, including the establishment of an Implementation Body;
recommendations for the Departments of Health and Education; policing strategies;
court responses; social services; the introduction of 'one stop shops, Child Death
Review Teams; the establishment of a Children's Commissioner; mandatory
reporting; and legislative change.
Ian Castillon & Dr Sharon Mccallum “Gurma Bilni – Change Your Life: A
Holistic Sex Offender Program For Aboriginal Men In The Northern Territory
Correctional Centres” Northern Territory Correctional Services (Paper
Presented at The Best Practice Interventions In Corrections For Indigenous
People Conference Convened By The Australian Institute Of Criminology In
71
Conjunction With Department For Correctional Services SA and held in
Adelaide, 13-15 October 1999
The Gurma Bilni - Change Your Life program is the outcome of an intervention
research project funded by the Institutional Programs section of the Northern
Territory Correctional Services.
The project, which resulted in the Gurma Bilni - Change Your Life program, was born
of the frustration of Community Corrections Officers not having an appropriate
intervention option for traditional Aboriginal men who had committed sex offences.
The officers’ experience had been that interventions on offer may have suited nonindigenous men, but was not appropriate for Aboriginal men. Similarly, such
programs were based heavily on an Anglo culture, and required participants to have
a high level of literacy in English.
Julieanne Davies “Aboriginal Sex Offender Treatment Program Greenough
Regional Prison Sex Offender Treatment Unit, Greenough Regional Prison, WA
(Paper Presented At The Best Practice Interventions In Corrections For
Indigenous People Conference Convened By The Australian Institute Of
Criminology In Conjunction With Department For Correctional Services SA
And Held In Adelaide, 13-15 October 1999
This paper briefly documents the evolution of the Aboriginal sex offender program
and draws attention to some of the strengths and limitations of the current program
as facilitated from Greenough Regional Prison. (p. 1)
In response to recommendations from Royal Commission Into Aboriginal Deaths in
Custody (RCIADIC) 1991, and in accordance with the Ministry’s commitment to
address the issues of cultural appropriateness, a Special Needs Team from SOTU
initiated a research project with Aboriginal sexual and violent offenders. (p. 1)
The Ministry of Justice undertook a review of Aboriginal sex offenders in 1992,
(Crake, 1993). It was found that Aboriginal sex offenders were likely to be young
males between 15-25 years (48%), to have a criminal record (97%), to have had a
72
previous conviction for assault (72%), a previous conviction for a sex offence (39%)
and to have been previously incarcerated to a term of imprisonment greater than 12
months (28%). (p. 2)
A study examining recidivism rates for sex offenders in the Western Australian prison
population, that used failure rate analysis for empirical support, suggested that reincarceration rates for sexual offences, for Australian non- Aboriginal offenders was
34% whilst re-incarceration rates for sexual or violent offences committed by
Aboriginal offenders was 79% (Broadhurst and Maller, 1992). (p. 3)
Cheri Yavu-Kama-Harathunian “The Therapeutic Needs Of Indigenous Violent
And Sex Offending Males: How Can They Be Addressed Treatment Issues
Related To Criminogenic Factors Of Aboriginal Group Participants Outside
The Domain Of Group Programme Delivery” Crime Research Centre University
of Western Australia (Paper presented at the Probation and Community
Corrections: Making the Community Safer Conference convened by the
Australian Institute of Criminology and the Probation and Community
Corrections Officers' Association Inc. and held in Perth, 23-24 September
2002) at http://www.aic.gov.au/conferences/probation/yavu.pdf
“This paper is about the sharing of experiential knowledge and what has been
divulged by Aboriginal clients who have participated in mainstream treatment
programmes that were designed to address their criminogenic needs. The
programmes were largely prison-based. Some of their comments are used to
articulate particular relevant points regarding treatment issues and needs and
illustrate Aboriginal participant’s cultural wisdom. These words are shared by an
Aboriginal clinician/therapist in relation to the clients understanding about the cultural
and restorative criteria that needs to be articulated in a treatment programme that is
used to deal with an Aboriginal offender’s therapeutic needs. It is about those covert
systems of cultural meanings and understandings of what in treatment can fit into the
Aboriginal participant’s worldview and what can be culturally matched with that view
so that therapeutic needs can at some level be addressed.” (p. 1)
73
“Recognition and the understanding of the Aboriginal client’s cultural intentionality those multi cultural factors that influence both parties - at the facilitator client
interface need to be the considered focus of therapy if treatment needs are to be
met. As with all of us there are commonalities in what constitutes a therapeutic need.
However there are also unique Aboriginal cultural differences that need to be
considered and respected.” (p. 1)
Rayner, M (2002) “Regarding children” in Eureka Street v.12 no.3 Apr: 28-29
“It has been suggested that the Federal government establish a Royal Commission
to examine child sexual abuse issues. This paper argues that while a Royal
Commission might help publicise the issue of child sexual abuse, it would not be an
effective way to address the problem, and would serve as a distraction from the
more important issue of establishing and defending the rights of children. The author
argues that the government should instead provide a Children's Rights
Commissioner. Citing the Office of the Children's Rights Commissioner for London
as an example, she suggests that this would be an effective way of addressing child
sexual abuse by monitoring what the government does, being accessible to children,
working independently of government yet being integral to its decision making,
advising on laws and policies, and focusing public attention on the state of children.”
Professor Thea Brown Project Magdellan Department of Social Work, Monash
University - Paper presented at the Child Sexual Abuse: Justice Response or
Alternative Resolution Conference convened by the Australian Institute of
Criminology and held in Adelaide, 1-2 May 2003
Magellan is the first such program worldwide and it represents an acknowledgment
of the significance of the role the Family Court of Australia plays in dealing with child
abuse. The court was not designed for this role but, now we know so much more
about child abuse as a contributing factor to parental separation and divorce, and
about child abuse as one of its consequences, it is clear that it was a role that would
fall to the court in time. I think the Family Court of Australia is to be congratulated in
being the first such court internationally to introduce a specialised judicial program
for these children.
74
PUBLISHED INDEPENDENT AND GOVERNMENT INQUIRY REPORTS
Aboriginal and Torres Strait Islander Women's Taskforce on Violence
(Queensland) (2000) Aboriginal and Torres Strait Islander Women's Taskforce
on Violence Report Brisbane, Qld: Department of Aboriginal and Torres Strait
Islander Policy and Development.
http://www.indigenous.qld.gov.au/pdf/taskforce.pdf
“Established in December 1998, the objectives of the Queensland Aboriginal and
Torres Strait Islander Women's Task Force on Violence were to identify the factors
behind the escalation of violence in Aboriginal and Torres Strait Islander
Communities in Queensland and to provide advice on community-based strategies
for prevention and intervention. The Task Force called for public submissions
through regional and local newspapers on 30 January 1999. A literature review was
also conducted. This report presents the findings and recommendations of the Task
Force. Section 1 covers forms of violence, trans-generational trauma as cause and
effect, and case studies; section 2 focuses on causes and contributing factors;
section 3 is titled Rhetoric or reality? The extent of violence; and section 4 is titled
Working for change. Discussion includes theoretical perspectives on violence and its
causes; abuse of alcohol and other addictive substances; cultural and spiritual
violence; socioeconomic disadvantage; neglect, abuse and violence against children;
suicides, self-harm and other self-inflicted injuries; reporting rape and sexual assault;
policies and services; education as empowerment; Indigenous health and well-being;
families and security; the Indigenous experience of justice; land - spirit - culture identity.”
National Inquiry into the Separation of Aboriginal and Torres Strait Islander
Children from their Families (1997), Bringing Them Home: Report of the
National Inquiry into the Separation of Aboriginal and Torres Strait Islander
Children from their Families, Human Rights and Equal Opportunity
Commission, Sydney.
75
“The National Inquiry into the Separation of Aboriginal and Torres Strait Islander
Children from their Families (1997, pp. 194–5) found that 17.5 per cent of witnesses
to the inquiry reported sexual exploitation and abuse. The report notes a study by the
Western Australia Aboriginal Legal Service which found that 14.5 per cent of
Aboriginal children placed in foster care and 10.9 per cent of those placed on
missions reported sexual abuse.” (at p. 26)
“There are many well recognised psychological impacts of childhood sexual abuse
(Finkelhor and Brown 1986). They include confusion about sexual identity and
sexual norms, confusion of sex with love and aversion to sex or intimacy. When the
child is blamed or is not believed, others can be added including guilt, shame,
lowered self-esteem and a sense of being different from others. Wolfe (1990)
concluded that the impacts amount to a variant of Post-Traumatic Stress Disorder.
They reported effects including sleep disturbance, irritability and concentration
difficulties (associated with hyper arousal), fears, anxiety, depression and guilt (page
216). Repeated victimisation compounds these effects.
People subjected to prolonged, repeated trauma develop an insidious
progressive form of post-traumatic stress disorder that invades and erodes
the personality. While the victim of a single acute trauma may feel after the
event that she is `not herself,' the victim of chronic trauma may feel herself to
be changed irrevocably, or she may lose the sense that she has any self at all
(Hermann 1992 page 86).”
“Post-trauma effects can be mitigated for children with a strong self-concept and
strong social supports. Few of the witnesses to the Inquiry who reported sexual
abuse in childhood were so fortunate. The common psychological impacts have
often manifested in isolation, drug or alcohol abuse, criminal involvement, selfmutilation and/or suicide.”
“There is no doubt that children who have been traumatised become a lot
more anxious and fearful of the world and one of the impacts is that they don't
explore the world as much. Secondly, a certain amount of abuse over time
certainly causes a phenomenon of what we call emotional numbing where,
because of the lack of trust in the outside world, children learn to blunt their
76
emotions and in that way restrict their spontaneity and responsiveness. That
can become an ingrained pattern that becomes lifelong really and certainly
when they then become parents it becomes far more difficult for them to be
spontaneous and open and trusting and loving in terms of their own emotional
availability and responsiveness to their children.” (Dr Nick Kowalenko
evidence 740).
“Oliver (1993, reported by Raphael et al 1996 on page 13) `found that approximately
one-third of child victims of abuse grow up to have significant difficulties parenting, or
become abusive of their own children. One-third do not have these outcomes but the
other third remain vulnerable, and, in the face of social stress there was an
increased likelihood of them becoming abusive'.”
Commission of Inquiry into Abuse of Children in Queensland Institutions (the
Forde Inquiry)
In August 1998, the Queensland Government established the Commission of Inquiry
into Abuse of Children in Queensland Institutions to examine whether there had
been any abuse, mistreatment or neglect of children in Queensland institutions. The
inquiry, known as the Forde Inquiry, found that unsafe, improper and unlawful care
or treatment of children has occurred in Queensland institutions.
Project AXIS (2000) Child Sexual Abuse in QLD: The Nature and Extent Report
QLD Crime and Misconduct Commission.
The QCC, jointly with the Queensland Police Service (QPS), established Project Axis
as a wide-ranging inquiry into child sex offending in Queensland. This, the first of a
two volume public report on child sex offending, is one of several activities resulting
from Project Axis, and addresses key issues relating to the nature and extent of the
problem. Volume 2 of the report will examine the adequacy of current responses to
child sex offending by government and the community generally.
This report draws on information collated from a wide variety of published and
unpublished sources which has been compiled in a separate, and much more
extensive law enforcement oriented document. This report also incorporates the
77
findings of independent research into child sex offending undertaken by the
Australian Key Centre for Ethics, Law, Justice and Governance, Griffith University,
which was jointly funded by the QCC and the Criminology Research Council.
To accompany this report, the QCC has released two further publications.
- a collection of research papers prepared by individual academics entitled Child
Sexual Abuse in Queensland: Selected Research Papers
- the full report of the research project undertaken by the Australian Key Centre for
Ethics, Law, Justice and Governance entitled Child Sexual Abuse in Queensland:
Offender Characteristics and Modus Operandi (the Smallbone and Wortley study).
Australian Law Reform Commission and the Human Rights and Equal
Opportunity Commmission (1997) Seen but Not Heard.
In August 1995 the then federal Attorney-General asked HREOC and the ALRC to
inquire jointly into children and the legal process. Issues to be examined under the
terms of reference included:
-
legal representation and advocacy for children and their access to legal
processes
-
the appropriateness of procedures by which children give evidence
-
treatment of children in relation to sentencing and other aspects of the
juvenile justice system
-
the appropriateness and effectiveness of legal processes in protecting
children and young people as consumers
-
the particular needs of children and young people for whom the
Commonwealth has a special responsibility such as children from
Indigenous and remote communities, children from non-English speaking
backgrounds and children with disabilities.
The inquiry highlighted the child’s invisibility and the lack of participation in the legal
process.
78
Human Rights and Equal Opportunity Commission (HREOC) & Australian Law
Reform Commission (ALRC) (1997) A Matter of Priority: Children and the Legal
Process, Australian Law Reform Commission, Sydney
The terms of reference require consideration of legislative and non-legislative
measures that should be taken to address a number of different issues surrounding
children and legal processes. These issues include legal representation and
advocacy for children and their access to legal processes, the appropriateness of
procedures by which children give evidence, the appropriateness and effectiveness
of the legal process in protecting child consumers, and issues relating to children in
federal jurisdictions. In addition, the terms of reference require the Inquiry to examine
the particular needs of those children for whom the Commonwealth has a special
responsibility, as well as issues relating to children in Australia's remote
communities.
In considering these issues, the Inquiry has had regard to the Commonwealth's
responsibilities for children arising under the Constitution and international human
rights obligations, including those arising under the United Nations Convention on
the Rights of the Child (CROC), as well as to relevant law, practice and experience
in some overseas jurisdictions.
Despite the Aboriginal Child Placement Principle, some submissions to the Inquiry
were critical of the response of care and protection systems to the needs of children
in Indigenous communities. The three main criticisms were that some workers in
family services departments hold racist attitudes, that there remains a lack of
consultation with the communities concerned and that sufficient account is not taken
of Indigenous child rearing practices when considering whether an Indigenous child
has been neglected. The National Inquiry into the Separation of Aboriginal and
Torres Strait Islanders From Their Families dealt extensively with the treatment of
Indigenous families by care and protection systems.
INTERNATIONAL LITERATURE
79
T Libesman (2004) “Child welfare approaches for Indigenous communities:
International perspectives” Child Abuse Prevention Issues Number 20 Autumn
National Child Protection Clearing House
“This paper provides a review of legislation and services delivered to Indigenous
communities in Canada, the United States and New Zealand. While some of the
issues and ideas may be useful and relevant in the Australian context, a key finding
in the research is that a “one size fits all approach” does not work. Particular
attention is paid to new approaches to family and community wellbeing that focus
work on community strengths and healing, and provide a less problem-focused
picture of Indigenous communities.”
“There has been much interest in overseas legislative reform that transfers real
authority for children and families’ wellbeing to Indigenous communities. This is
widely considered to be important to the long-term empowerment of Indigenous
peoples and a basis for the development of more effective support systems. The
United States Indian Child Welfare Act currently represents the highest level of
transfer of decision-making authority to Indigenous peoples.”
A Review of International Models for Indigenous Child Protection at
http://www.austlii.edu.au/au/other/IndigLRes/2002/1/1.html as at 28 June 2005
The report considers a range of legislative models for the delivery of child welfare
services to indigenous communities in:
Canada
U. S. A.
New Zealand
NSW - Australia
The report also provides a brief historical overview of state responses to indigenous
families is provided. This background is intended to provide a context for the
discussion in the second part of the report which considers issues relevant to the
80
delivery of child welfare services thematically. The Legislative models considered
range from:
-
complete autonomy with the recognition of indigenous jurisdiction over
legislative, judicial and administrative matters pertaining to indigenous
children
-
shared jurisdiction with the transfer of some functions to Indigenous
communities
-
delegated authority with jurisdiction over child protection matters retained
by the state but delegation of some child protection functions to indigenous
communities
-
mainstream legislation which integrates indigenous input into existing
structures.
CANADA
Aboriginal Operational and Practice Standards and Indicators October (1999) A
Project of the Aboriginal Operational and Practice Standards and Indicators
Reference Group
“The purpose of the operational guidelines readiness criteria is to assist both
Aboriginal communities and the Ministry for Children and Families to negotiate a
Delegation Enabling Agreement (DEA) with the Director of Child and Family Services
as per the Child, Family and Community Services Act. A DEA enables the
community to take on the delegation of authority for child welfare services.”
(Introduction at p. xx)
Geral Blanchard, M.A., C.A.S. (1997) Aboriginal Canadian Innovations in the
Treatment of Sexual Violence Summer.
Hollow Water
“Like most cultures on the North American continent, the Ojibway have witnessed a
rapid rise in interpersonal violence, usually accompanied by significant chemical
abuse. Typically white prosecutors, defense attorneys, judges, and psychologists
81
intervened with their conventional theories regarding the causes and treatment of
these disorders. With concerned amusement, the Hollow Water people watched the
white man’s “criminal justice system” fail to apply justice to most victims and
offenders. Instead of justice, they saw punishment inflicted. Instead of healing,
bitterness was created.”
“When the sexual violence continued unabated, aboriginal peoples went in search of
other solutions. Beginning in 1984, aboriginals took it upon themselves to rethink the
entire legal system. The “new” solutions they found were actually old ones traditional
values and convictions were revived. With an eye to a past which had worked so well
before, the Ojibway designed methods of healing that resonated best with their
ancient beliefs.”
“By the early 1990s, a new model was in place, one which promised more familiar
and perhaps even more effective strategies for healing. Rather than concentrating on
the punishment of abusers, the new model focused on righting wrongs, restoring
fractured interpersonal relationships, and returning social harmony to the entire
community.
The Hollow Water people recognized that sexual abuse had an impact on the entire
community, not just on victims, perpetrators, and their families. A ripple of discomfort
would spread throughout the community following each disclosure of abuse.
Consequently, providing support only to those most directly involved was an
inadequate response. Under the new model, the entire band would be offered care
to restore the harmony that was lost through abuse. This new world approach would
come to be called a “justice as healing” project or “sacred justice.”
Many of this model’s features are nothing short of revolutionary. It stands in stark
and dramatic contrast to Western law, which emphasises the criminal act itself,
which views the criminal as the exclusively responsible party, which seeks
punishment and vengeance, and which metes out lengthy periods of incarceration,
fines, court orders, and denies treatment to abusers. Sacred justice instead believes
that, with every incident of abuse, there is community dysfunction at its root which
82
needs treatment. Abusers are encouraged to stay in the community and feel the
shame rising from their acts. Jail is discouraged. Reconciliation is attempted in most
situations.”
“Similarly, psychological intervention is handled differently. The Ojibway language,
with its emphasis on verbs instead of nouns, is not accustomed to labelling people.
In fact, the psychological practice of finding pathology in a diagnostic manual is
thought to limit an individual’s chance for growth to “freeze” them at their present
level of functioning.”
“Rather than tend to the criminal act and how it can lead to a diagnostic label,
aboriginals see relationships as the central diagnostic factor. The abuser is not seen
as having “arrived” at this point of dysfunction, but as an emerging being. He/she is
on a path, “moving-toward” or “about-to-emerge” into a more healed existence. While
our psychologically defined culture may find psychopathology in a violent sex
criminal and sentence that individual to life in prison, or even to death, aboriginal
healers believe such serious “disorders” are symptomatic of a serious rift in one’s
relationship to his/her fellow band members. Rather than send that person away to
an isolated penitentiary existence, their answer is to infuse massive amounts of
community support to restore relationships to a healthy balance. While our cultures
tries to remove the “lesion” from our world, the Ojibway believe they must embrace
this brother or sister and eliminate the abuser’s feelings of alienation and
disconnection. To us, a psychopath is beyond is beyond repair and must be caged
far from victims and community. In Hollow Water, a first-time violent criminal walks
the streets and reports to fellow citizens who serve as probation officers.”
Manitoba Strategy Responding to Children and Youth at Risk of, or Survivors
of, Sexual Exploitation
http://www.gov.mb.ca/fs/childfam/strategy_on_sexual_exploitation.html
Child and Family Services in Manitoba, in full consultation with Indigenous
Canadians, developed a comprehensive plan to restructure the delivery of child and
family services to Indigenous Canadians. In 2001, agreement was reached to
change the system of governance and provide services through four authorities,
83
three of which were controlled and run by indigenous people and served indigenous
people:
‘Under the new system, [a]boriginal children and families will receive child and
family services from [a]boriginal agencies, no matter whether they live in
Manitoba’.” (Gordon Inquiry at p. 83 citing Child and Family Services in
Manitoba 2001:5)
The focus of the Manitoba strategy is on prevention. This includes increasing the
general awareness of the issue across all segments of the Manitoba population and
providing preventative programming for at risk youth.
Intervention initiatives are also part of the Manitoba strategy. Research shows that at
risk or sexually exploited children and youth respond most favourably to programs
that are age, developmentally and culturally appropriate, non-judgmental, child and
youth-centred, creative, responsive to individual needs, non-coercive and staffed by
individuals who are personally committed and who may have experienced similar life
situations.
Prilleltensky, I, ed.; Nelson, G, ed.; Peirson, L, ed. (2001) Promoting Family
Wellness and Preventing Child Maltreatment: Fundamentals for Thinking and
Action Toronto, Canada: University of Toronto Press.
This book offers recommendations for 1) a better understanding of wellness,
maltreatment, prevention and promotion; 2) value-based actions; and 3) successful
policies and programs. Written by members of The Family Wellness Project Team,
chapters are:
-
Mapping the terrain: framework for promoting family wellness and
preventing child maltreatment
-
Context, contributing factors, and consequences
-
Vision and values for child and family wellness
-
Social policies for promoting the well-being of Canadian children and
families
-
A review and analysis of programs to promote family wellness and prevent
the maltreatment of preschool and elementary-school-aged children
-
Programming for distressed and disadvantaged adolescents
84
-
Program implementation and
-
A circle of healing: family wellness in Aboriginal communities
-
Conclusion, Beyond the boundaries: themes for thinking and action in the
promotion of family wellness and the prevention of child maltreatment,
NEW ZEALAND
Ian D Lambie & Malcolm W Stewart (2003) Community Solutions for the
Community’s Problem: An Outcome Evaluation of Three New Zealand
Community Child Sex Offender Treatment Programmes, Psychology
Dept., University of Auckland Applied Behavioural Science Dept,
University of Auckland, February.
The evaluation looks into treatment options in NZ for child sex offenders that
fall into three main groups: prison-based sex offender treatment units (such as
Kia Marama at Rolleston Prison and Te Piriti at Auckland Prison), community
provider programmes, and individual intervention through a psychologist.
Bakker, L., Hudson, S., Wales, D., & Riley, D. (1998). And there was light:
Evaluating the Kia Marama Treatment Programme for New Zealand Sex
Offenders against children. Wellington, New Zealand: Department of
Corrections.
The Kia Marama Treatment Programme had a significant effect on reducing
reoffending, with a reconviction rate of 8% compared to a comparison group
conviction rate of 21%.
L. Nathan, N. Wilson & D. Hillman (2003) Te Whakakotahitanga: An
Evaluation of the Te Piniti Special Treatment Program for Child Sex
Offenders, Psychological Services, Department of Correction New
Zealand.
85
This study evaluates the “cultural processes incorporated into the Te Piriti
Special Treatment Unit for offenders imprisoned for sexual offences against
children.”
The Te Piriti programme has been in operation for over eight years. It
employs the “core cognitive behavioural/social learning theory components
utilised in its sister programme Kia Märama in the South Island, as well as
processes that are culturally appropriate for Mäori. The programme
endeavours to implement tikanga Mäori within the wider unit and prison
environment. However, it needs to be acknowledged that there has been little
integration of tikanga Mäori processes into the therapy room.”
The key findings from the study are:
The Te Piriti programme was found to be effective in reducing sexual
reconviction for Mäori and non-Mäori men. The total study sample of all men
who completed the programme had a 5.47% sexual recidivism rate. This was
significantly less than a comparable untreated control group of Mäori and nonMäori convicted child sex offenders who had a sexual recidivism rate of 21%.
The majority of the sexual recidivism by men completing the Te Piriti
programme occurred within the period two to four years after release. Only
two offenders committed further sexual offences within the two year period
post release.
Mäori men who completed the Te Piriti treatment programme had a
significantly lower sexual recidivism rate (4.41%) than Mäori who completed
the Kia Märama treatment programme (13.58%).
A comparison of Mäori and non-Mäori offenders attending the Te Piriti
programme found a number of significant differences in terms of child sex
offending characteristics. Mäori child sexual offenders preferred female rather
than male victims, had more intra-familial victims, began offending at an
earlier age, used more violence in offending, and had received less treatment
prior to attending the programme.
86
UNITED STATES
Larry EchoHawk (2001) “Child Sexual Abuse In Indian Country: Is The
Guardian Keeping In Mind The Seventh Generation?” NYU Journal of
Legislation and Public Policy.
This Article will address the role and responsibility of the federal government as
guardian and trustee for Indian tribes in dealing with child sexual abuse in Indian
country. To fully appreciate the gravity of the problem of child sexual abuse in Indian
country, one must first have a basic understanding of child sexual abuse in America.
Comparisons can then be made to the unique circumstances that exist on Indian
reservations. Part I discusses child sexual abuse in the United States in general,
and Part II follows with a discussion of child sexual abuse in Indian country. Part III
addresses the federal government's responsibilities in the fight against child sexual
abuse in Indian country and the efforts Congress has made to address this problem.
Part IV will discuss what more can be done by the federal trustee to protect Native
American children and to bring those who sexually molest Indian children to justice.
Sarah Deer “Toward An Indigenous Jurisprudence Of Rape” in Kansas Journal
of Law and Public Policy Fall, 2004 at p. 21
The author warns that “raising the topic of sexual violence within tribal communities
may result in highly emotional and sensitive responses. In many contemporary
indigenous communities, there are likely generations of sexual assault survivors who
have remained silent about their experiences. Denial and secrecy have incredible
power over victims. In addition, there are likely numerous cases, which have gone
unrecognized and many perpetrators who have gone unpunished.” (p. 12)
The article draws attention to the reality that "[c]lose-knit communities can offer
enhanced support and other advantages, but the reduced privacy can be a problem
for stigmatized issues such as sexual victimization…(citing Sherry L. Hamby)
Therefore, it is critically important that local, indigenous grassroots women's
87
advocates be a central part of the dialogue. Women's advocacy programs, especially
those grounded in grassroots organization, can provide support and encouragement
for survivors of sexual assault, and provide a voice for those who cannot speak.” (at
p. 13)
Lorie M. Graham (1998) "The Past Never Vanishes": A Contextual Critique Of
The Existing Indian Family Doctrine” in American Indian Law Review.
“The cultural values and social norms of Native American families - particularly
indigenous child rearing practices - were viewed institutionally as the antithesis of a
modern-day "civilized" society. Indeed, in many of the child welfare cases examined,
American Indian communities were shocked to learn that the families they regarded
as "excellent care-givers" had been judged "unfit" by caseworkers. This disparity in
viewpoint was the result of general disdain for American Indian family life. Sen.
James Abourezk (D.-S.D.) remarked in 1977 that, ‘[p]ublic and private welfare
agencies seem to have operated on the premise that most Indian children would
really be better off growing up non-Indians.’
Suellyn Scarnecchia (1997) “An Interdisciplinary Seminar In Child Abuse And
Neglect With A Focus On Child Protection Practice” in University of Michigan
Journal of Law Reform.
Given the myriad of professionals involved in protecting children from abuse and
neglect, legal practice in the field of child protection requires an understanding of the
various disciplines these professionals represent. Professor Scarnecchia argues that
such an understanding is necessary in order for the attorney to serve as a zealous
advocate for her client. In hopes of creating this understanding in students at the
University of Michigan, an interdisciplinary seminar in child abuse and neglect has
been created. Professor Scarnecchia details the substantive content of the seminar,
discussing specific issues that arise in protecting children. She explains that by using
actual cases to illustrate how these issues appear in child protection cases, and how
they are addressed by the various disciplines, the seminar has been able to maintain
an emphasis on practice and practical skills. Choices of class materials,
88
assignments, enrollment, and faculty are also detailed to encourage the
development of such a program at other institutions.
B.J. Jones (1998) “Welcoming Tribal Courts Into The Judicial Fraternity:
Emerging Issues In Tribal-State And Tribal-Federal Court Relations” in William
Mitchell Law Review.
This article attempts to examine some of the issues that confront tribal, state, and
federal judges. These judges have begun the process of engaging fellow judges in a
dialogue intended to promote the objective of delivering justice for all litigants, Indian
and non-Indian alike. One caveat about judicial forums that must be remembered by
all judges who engage in this important work is that members of the respective
judiciaries will not, and should not, attempt to resolve the substantive issues that
oftentimes bedevil the respective executive and legislative branches of tribal, state
and federal governments. If judges enter into forums with the hope and expectation
of using the forum blueprint to reallocate jurisdiction or resolve long-standing treaty
enforcement issues, their hopes will invariably be dashed. Instead, the agenda must
be one that concedes the existing authority of each governmental entity and
attempts to facilitate the exercise of that authority by the removal of judicial
impediments. Judges who do not have the political stomach to accept the somewhat
muddled landscape Indian law represents in its present form, and who believe that a
competing jurisdiction should merely come around to his or her perspective, as an
alternative to interpreting cryptic congressional enactments and court decisions,
probably will find tribal-state or tribal-federal forums unsatisfying and unyielding.
Conversely, even those judges who cannot discern "heads or tails" from baffling
Supreme Court decisions such as Brendale and World Engineering but can identify a
common interest in ensuring access to at least one forum for a litigant involved in a
dispute in Indian country, may find the forum concept a richly rewarding experience.
This article first attempts to catalog the issues that certain state and tribal forums
have identified and concentrated their efforts on resolving through judicial
cooperation. In many ways the issues are driven by the state of federal law
impacting a particular state, notably Public Law 280, especially with regard to which
court exercises jurisdiction over disputes arising in Indian country in that particular
89
state: state courts, tribal court, or both under a concurrent jurisdiction scheme.
Understandably, in a state where state courts exercise virtually no jurisdiction over
Indian country, the tribal and state courts located there have different issues on
which to deliberate than those in a state where the state exercises primary
jurisdiction and the tribal courts have narrow authority. There does appear to be
some universal issues, however, that span this Public Law 280 breach.
Next, this article addresses tribal-federal court issues, while noting the differences in
states where the federal courts exercise very limited jurisdiction over Indian country
compared to those in which the federal courts exercise extensive criminal and civil
jurisdiction under various federal statutes.
Lievore, (2004) Recidivism of Sexual Assault Offenders: Rates, Risk Factors
and Treatment Efficacy May.
Lievore cites a four-year Alaskan study which “found that treatment reduced both the
incidence of reoffending and the survival time for 411 rapists and child molesters,
compared to 260 controls. All treated offenders, regardless of how long they
participated in the program, lasted longer in the community without reoffending and
none of the 41 offenders who completed the advanced stages of the program
reoffended during the study period. However, Alaska Native sex offenders did not
progress as well through the program, with older, more educated Natives and those
with a history of alcohol and drug abuse, tending to leave the program early. This is
the first study conducted among the Alaska Native sex offender population and
results appear to be comparable to Australian and Canadian findings (below).”
“The Correctional Service of Canada has also adopted a holistic approach to treating
Indigenous sex offenders. Interventions encompass mental, physical, emotional and
spiritual dimensions, rather than focusing on problems within the individual.
Reintegration with the family and community is emphasised, as interpersonal
relationships have traditionally played a major role in maintaining harmony. In
addition to cognitive-behavioural therapy and relapse prevention, the programs
address cultural and spiritual requirements, focusing on healing, achieving balance,
and developing a clearer sense of identity, which are more in keeping with Aboriginal
90
beliefs than “treatment” and “rehabilitation”. First Nations Elders play key roles in
intervention programs, provide counselling, and lead offenders in traditional
ceremonies, which help them engage with the treatment process and develop
cultural awareness, pride and belonging (Williams 1997).”
“Long-term, meaningful solutions are more likely to be achieved through communitybased solutions, which include early intervention and crime prevention programs, as
traditional criminal justice sanctions tend to be ineffective and to have iatrogenic
effects.”
Riger, S., Bennett, L., Wasco, S. M., Schewe, P. A., Frohmann, L., Camacho, J.
M. & Campbell, R. Evaluating Services for Survivors of Domestic Violence and
Sexual Assault Sage Publications, University of Illinois, Chicago.
A chronicle of the antiviolence movement and the development of services. By
focussing in one volume on both domestic violence and sexual assault, it makes an
important conceptual internvetion by challenging readers to be more comprehensive
when thinking about this work. The text reflects a multidisciplinary, multimethod
approach to evaluation. It does so in a way that demystifies research, models
collaboration, and promotes a dialogue between the various constituencies who work
to end violence against women.
J. Rathus & E. Feindler (2004) Assessment of Partner Violence: A Handbook
for Researchers and Practitioners American Psychological Association,
Washington DC.
This handbook contains two major parts. Part I: Issues in the Assessment of Partner
Violence provides a general overview of matters pertaining to the assessment of
partner violence and contains five chapters. Part II: Assessment of Partner Violence
details specific instruments that measure couple violence and contains four chapters.
The book favours a behavioural assessment approach to the measurement of family
violence. Behavioural assessment, as compared with traditional assessment,
empahsises the measurement of observable rather than inferred characteristics,
91
environmentally or contextually determined causes for events over intrapsychic
factors or traits, present rather than historical events, ideologic rather than
nomothetic assessment, continuous or repeated rather than one-time or pre-post
evaluation, multimodal rather than single-method assessment, and the use of
psychometrically sound assessment tools.
B. J. Cling Ed. (2004) Sexualized Violence Against Women: A Psychology and
Law Perspective The Guilford Press New York.
This book is about wrongs – often sexual wrongs – perpetrated against women and
children. It is the view of this book that it is important to have knowledge of both
psychology and law in order to be effective in the areas of forensic psychology. As a
psychologist it is essential to understand what the law is, how it operates, and how
those practicing it think in order to influence proceedings in a court of law. It is only
by having a good understanding of both disciplines that their overlap can be
productive in protecting our society from harm. This book attempts to foster that
understanding.
S. Riger, L. Bennett, S. Wasco, P. Schewe, L. Frohmann, J. Camacho & R.
Campbell (2002) Evaluating Services for Survivors of Domestic Violence and
Sexual Assault Sage Publications, United States of America.
In addition to reviewing the basic concepts related to evaluation this book is a
chronicle for the antiviolence movement and the development of services. By
focusing in one volume on both domestic violence and sexual assault, it makes an
important conceptual intervention by challenging readers to be more comprehensive
when thinking about this work.
The first part of this book discusses the social and political context of evaluation
because our belief that it is crucial to the success of an evaluation. We examine the
evolution of the domestic violence and sexual assault movements over the last 30
years and the emergence of services for abused women.
92
UNITED KINGDOM
Heinze, E. (2000) Of Innocence and Autonomy: Children, Sex and Human
Rights Dartmouth Publishing Company Ltd., Hampshire.
These essays examine sexual expressions of personality. They show that adults are
uneasy about children as sexual persons. Adult constructions of childhood preclude
acknowledgement hat sexuality is part of personality throughout the lifecycle,
including the period of childhood.
Bagley, C. & Mallick, K. Child Sexual Abuse and Adult Offenders: New Theory
and Research Ashgate Publishing Co., Great Britain.
This book is based on major research project s in both Britain, Canada and Australia,
on the meaning and nature and impact of child sexual abuse. Theoretical
perspectives include a consideration of the contextualisation of knowledge about
child abuse, how sexual abuse may be embedded within other types of family
pathology; and a feminist perspective on patriarchy and adolescent prostitution.
There are chapters on social work processing of child sexual abuse cases, and of
group treatment for victims point to further directions in research and policy and
practice.
Sanderson, C. (2004) The Seduction of Children: Empowering Parents and
Teachers to Protect Children from Child Sexual Abuse, Jessica Kingsley
Publishers, London.
This book offers practical strategies for the protection of children that all parents,
teachers and anyone involved in the life of a child. It provides the reader with an
understanding of typical/normative sexual development in children and enables
teachers and parents to distinguish this from atypical sexual development and
recognise the warning signs of sexual abuse.
Straus, M. B. (1988) Abuse and Victimisation Across the Life Span The Johns
Hopkins University Press, London.
93
There is strong evidence that families prone to one type of violence may also be
susceptible to others. For example, men who abuse their wives are more likely to
abuse their children; battered wives are also more likely to abuse their children; and
abuse children are more likely to abuse their siblings.
This book examines the process of specialisation in terms of comprehending child
abuse. Specialised literatures of family violence have become increasingly
redundant. Communication among professionals in different areas of family violence
remains negligible despite obvious similarities in the victimisation experience across
the lifespan. He book describes how all victims share a profound belief in their own
badness – and an underlying sense that they deserve the violence against them. In
sum, regardless of age, victims of family violence often share a dependence for their
very survival upon someone who harms them.
Socarides, C.W. & Loeb, L.R. (Eds.) (2004) The Mind of the Paedophile:
Psychoanalytic Perspectives Karnac Books, London.
This book discusses paedophilia. A variety of treatments and therapies, including
brain surgery, electric shock treatment and incarceration have not succeeded in
treating this condition. A range of eminent and expert professionals go further: into
the mind of the paedophile, using dream interpretation, free association, fantasies
and memories, in a bid to comprehend the exact nature; the how, when and why, of
paedophilia.
Wilson, R.F. (2000/2001) “Children at Risk: The Sexual Exploitation of Female
Children After Divorce” HeinOnline, 86 Cornell Law Review. 251.
This article examines one specific crisis that many non-traditional families face: the
significantly elevated risk that a female child will be sexually abused after the
dissolution of her parents marriage. The article focuses on child sexual abuse, not
only for its traumatising damage to children, but also the sheer volume of studies and
the consistency of findings make the risk undeniable. Because divorce magnifies a
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girl’s sexual vulnerability, the law has the opportunity to address this risk proactively
in child custody determinations, rather than reacting to abuse.
Child Protection: Messages From Research Studies in Child Protection, HMSO,
London (1995)
This report is the third concerned with summarising and disseminating the
results of child-care research funded by the Department of Health. Like its
predecessors, Social Work Decisions in Child Care (1985) and Patterns and
Outcomes in Child Placement (1991), it seeks to make research accessible to
professionals working with children and to demonstrate the relevance of these
results for policy and practice.
First, the book attempts to define abuse in the context of normal childhood
experience and to estimate the incidence of different types of maltreatment in
society. Second, the book attempts to identify who gets caught up in the child
protection process and how children’s safety is achieved. Third, it focuses on
what conclusions can be drawn in relation to good practice, from the days of
the first enquiry to situations where a child is removed from home and
receives treatment.
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