Dr Ben Mathews, Associate Professor, Faculty of Law Queensland University of Technology

1. ISPCAN Congress 2010Identifying child sexual abuse within school contexts: policy problems and solutions, and a landmark case Dr Ben Mathews, Associate Professor, Faculty of Law Queensland University of Technology b.mathews@qut.edu.au CRICOS No 00213J This research was supported under the Australian Research Council’s Discovery Project funding scheme (project number DP0664847).

2. What I’ll cover briefly today • Background: context and nature of the study • Key findings of the study (policy problems) • Implications of findings (policy solutions) • A landmark case Learning objectives: • Situate discussion of school policy about reporting of child sexual abuse within the social and legal context • Identify key elements of a sound policy requiring teachers to report suspected child sexual abuse • Identify features of teacher training to enable effective compliance with policy

3. Background: context and nature of the study Study in 3 Australian States of primary school teachers and the reporting of suspected child sexual abuse 4 major components: Analysis of legislative reporting duties (and other legal issues) Analysis of schoolpolicy-based reporting duties Analysis of government data about teachers’ actual past reporting (reports and their outcomes) Quantitative survey of primary school teachers (knowledge, attitudes, practices, factors influencing reporting) Context: incidence of sexual abuse (3500 p.a / 8/10,000– but in reality, far more) health effects (initial, through adolescence, and long-term) teacher reporting duties as a method of early detection different State legislation about teachers’ duties to report suspected abuse different school policies about teachers’ duties to report common law duty to report sexual abuse (negligence law: duty of care)

4. Key findings from analysis of different policies: policy problems Why policy-based reporting duties are created (student protection; school protection; tortious duty of care; support legislation) The usual nature of the policy-based reporting duty: • requires teacher to report known or reasonably suspected sexual abuse of a child encountered in her/his professional capacity • Confirms legislative duty to report; or • If no or weak legislative duty, creates original duty, or supplements weak legislative duty But, policy-based reporting duties vary, and contain problematic features: • Presence of duty: some educational authorities did not have a school policy about reporting of child sexual abuse • Extent of harm: some policies limited the reporting duty to cases of suspected ‘significant’ harm only • Temporal dimension: some policies limited the reporting duty to past/present abuse, and did not require reports of suspected risk of future abuse (eg grooming cases) • Report destination: the difficulty of to whom the report should be made: the principal? Or directly to CPS?

5. Key findings after legal, theoretical and practical analyses: policy solutions Presence of policy: Any school educational authority not having a reporting policy should develop one (even if only to reinforce a legislative duty) Extent of harm: Policies should require the teacher to report all suspected sexual abuse, without limiting the reporting requirement to cases of suspected ‘significant’ harm Temporal dimension: policies should require reports of suspected risk of future harm that has not happened yet but is thought likely to happen (eg clear grooming cases) Destination of report: Policy should require the teacher to notify the principal of their intention to make a report, but the teacher should then report directly to the relevant Department (note role of administration in reporting, pastoral care). Alternatively, principal should automatically forward the teacher’s report.

6. A further policy problem: lack of teacher familiarity/knowledge In addition, our survey of 470 teachers found low levels of teacher familiarity with the policy-based duty to report, but that those with familiarity had high levels of knowledge • Of all participants, the following numbers/proportions had both awareness of the existence of a policy andsufficient familiarity with it to answer questions about it: • 48 out of 83 (58%) NSWNGS; • 38 out of 83 (45%) WAGS; • 52 out of 122 (42%) QNGS; • 48 out of 119 (40%) QGS; • 7 out of 59 (11%) WANGS. • Those who were familiar with the policy generally had good knowledge levels (contrast some items); • Those with pre-service and in-service training had highest knowledge levels.

7. Knowledge of policy : question breakdown

8. Key finding: Association between training about child abuse reporting, and knowledge of reporting duties

9. Implications for school authorities: necessary features of teacher training • Note that even from a purely legal perspective, and whether the legislative duty is strong or weak, schools may be vicariously liable in negligence for a teacher’s failure to report known or suspected sexual abuse. So, schools need: • a robust policy-based reporting duty; and • staff to comply with the policy. • To enable staff compliance, school authorities need to promote sound training about: • social context of sexual abuse; • indicators of sexual abuse; • the existence and nature of the reporting duty (and where they can find it); • when to report (and when not to report); • how to report; • to whom to report. • Training needs to be: • Preservice and in-service; • multidisciplinary; and • repeated regularly.

10. A landmark case: what can go wrong in a worst-case scenario • The first victim: initial abuse for several months by class teacher • Eventual direct disclosure to parents; complaint made to Principal • Failure to report (by two sets of reporters) - ignorance of duty to report • Failure to remove suspected perpetrator; continued abuse of first victim - departure of first victim from school • 12 other victims in same class - continued abuse for 14 months • The second victim: direct complaint to police; teacher arrested. • criminal action against perpetrator (plea of guilty) • schooldisciplinary action against school officials (termination) • criminal action against principal (not liable on technicality) • civil action in damages against school authority for negligence via vicarious liability (admitted liability)

11. Key publications - available at http://eprints.qut.edu.au/view/person/Mathews,_Benjamin.html • B Mathews, K Walsh, D Butler & A Farrell, Teachers reporting child sexual abuse: Towards evidence-based reform of law, policy and practice: Final report. Brisbane, QLD: Queensland University of Technology, 2010. • K Walsh, M Rassafiani, B Mathews, A Farrell & D Butler, ‘Teachers’ attitudes toward reporting child sexual abuse: Problems with existing research leading to new scale development’ (2010) 19(3) Journal of Child Sexual Abuse 310-336. • B Mathews, K Walsh, M Rassafiani, D Butler & A Farrell, ‘Teachers reporting suspected child sexual abuse: results of a three-State study’ (2009) 32(3) University of New South Wales Law Journal 772-813. • D Butler, B Mathews, A Farrell & K Walsh, ‘Teachers’ duties to report suspected child abuse and tortious liability’ (2009) 17 Torts Law Journal 1-23. • B Mathews, H Payne, C Bonnet and D Chadwick, ‘A Way To Restore British Paediatricians’ Engagement With Child Protection’ (2009) 94(5) Arch Dis Child 329-332. • B Mathews, J Cronan, K Walsh, D Butler & A Farrell, ‘Teachers’ Policy-Based Duties To Report Child Sexual Abuse: A Comparative Study’ (2008) 13(2) ANZJLE 23-37. • B Mathews and M Kenny, ‘Mandatory reporting legislation in the USA, Canada and Australia: a cross-jurisdictional review of key features, differences and issues’ (2008) 13 Child Maltreatment 50-63. • B Mathews & D Bross, ‘Mandated reporting is still a policy with reason: empirical evidence and philosophical grounds’ (2008) 32(5) Child Abuse & Neglect 511-516.