Also this month, but in Australia, a Victorian man convicted of raping a 14 year old boy in a public toilet in 1996 successfully obtained a Working with Children Check (WWCC).
The Herald Sun reported that back in 1996 after being raped, the young boy immediately went to police and reported the crime. The defendant who was 30 at the time, who cannot be named, pleaded guilty.
He was convicted but received a wholly suspended nine month sentence so he didn’t spend any time in jail for the crime.
He now wants to work with disabled children and despite his initial application for a WWCC being rejected, he successfully appealed to the Victorian Civil and Administrative Tribunal.
He said his crime was the result of some diet pills he was taking at the time and is now allowed to work with children.
It seems unfathomable and the reasons behind the decision are difficult to read.
It’s reported that he was assessed by a psychiatrist who described him as being ‘low risk’ although “not entirely risk-free”.
That statement could well be applied to any person without a criminal history. Is it suitable for a man convicted of a child sex offence?
If he were to re-offend, and a parent or child wanted to take legal action, the psychiatrist, who is a protected witness, cannot be held accountable for providing false reassurances, because he acknowledged that he is ‘not entirely risk-free’.
In 2015 the Royal Commission into Institutional Responses to Child Sexual Abuse described the WWCC checks as ‘inconsistent’ and ‘complex’ with ‘inadequate monitoring of working with children check’ cardholders.
At the time of the commission the recommendations were for ‘tighter restrictions on appeal rights for people convicted of crimes such as child murder, child sex, child pornography offences or incest’.
Research has demonstrated that a psychiatrist’s ability to accurately predict the risk of reoffending in violent and sexual offenders is not much better than chance.
When courts evaluate the risk of reoffending, they apply four principles.
- Magnitude of harm. This is essentially a value judgement that presumes the person deciding has a true and objective understanding of the harm experienced by the victim. As a psychiatrist myself I regularly see victims of sexual trauma, and the impact of a child being raped in this manner can be enormous. A child who has been raped can grow up and suffer from an array of debilitating symptoms including self harm, disordered eating, substance abuse, impulsivity, anger, anxiety and depression. Both the victim and their family are likely to suffer because of it, and he/she may even lose their support over time and be left isolated. A child who has been assaulted suffers increased risks of unemployment, disrupted education, family breakdown and loneliness, as well as increased risk of suicide. In my clinical opinion, the magnitude of a child rape should always be considered high. However, even when this case first went to court, the magnitude of harm was only considered large enough to warrant a 9 month suspended sentence.
- Likelihood of harm. This is where the court assesses the ‘desire’ of the individual to want to repeat their offence. An example would be the perpetrator continuing to fantasise about rape. In my clinical opinion, the risks of an offender concealing their inner most desires is unacceptably high. If I wanted to obtain a WWCC in order to increase my exposure to children, the last thing I would do is admit to thinking about them sexually.
- Imminence. The court is interested in how soon the next attack might be but this is actually immeasurable. Most sexual offenders are opportunistic and attacks are impulsive. This is why so many child sex offenders molest those closest to them. The imminence is low if he has minimal exposure to children, but can obviously be much higher if working with children. Placing a known offender in the vicinity of vulnerable children who may never have the capacity to verbalise an assault is placing those children at an unacceptable risk.
- Frequency of behaviour. The court wants to know how often this individual participates in the criminal behaviours. With sexual offending, like domestic violence, the reported rates are low and the conviction rates are even lower again. No substantiated allegations can be a sign of improved ability to perpetrate covertly rather than a confirmation of an actual reduction in offending. In other words – offenders can get better at hiding it.
Because predicting whether a sex offender will offend again is rarely accurate, the behaviour of sex abusers of children should be considered.
The average number of victims for one paedophile is twenty. The Herald Sun headline “One-off Molester can work with kids” is potentially very misleading and suggests the boy being raped was simply a case of misfortune and likely not to happen again. There is nothing to suggest this at all apart from the fact that there have been no additional charges.
Re-offending rates are high for male paedophiles at 21% within 5 years of the first offence and 25% at 20 years. And these are conservative figures, there have been studies showing reoffending rates as high as 67%.
The Herald Sun reported that the psychiatrist had described how the perpetrator had “matured” over the years after the attack. Given rates of reoffending actually increase over time how is maturity relevant?
The impact of court cases on sexual violence survivors cannot be understated. Being questioned about an event that rapidly results in a panic response, with increased anxiety, hyper vigilance, and agitation, being described as “unreliable” witnesses or dishonest or blamed for having imperfect recall.
Surviving that to ensure justice is done, only to see the perpetrator walk free despite pleading guilty almost certainly triggers distress. Finding out that the perpetrator had successfully obtained a working with children check, would absolutely cause harm.
The concept of precedent must never be ignored.
In 2005, a B&B owner raped a 16 year old male guest whilst his mother slept next door. Despite pleading guilty he was given a $1500 fine. A fine. For committing rape.
In 2011 this man also appealed to VCAT in order to successfully obtain a WWCC. He said he was depressed, had suffered a relationship breakdown and had inner conflict about his homosexuality at the time of the crime.
It is unfathomable that these convicted child rapists, neither of whom were incarcerated for their crimes, have the ability to care for children unrestricted.
This article originally stated that the reasons for the decision weren’t publicly available. This was incorrect. VCAT has published the reasons here.