Newsletter #66
Feature
Submission on the Proposed Legislation of "Mandatory Reporting of Suspected Child Abuse Cases"
In August this year, Social Welfare Department issued a consultation paper on "Proposal on the Mandatory Reporting Requirement for Suspected Child Abuse Cases", suggesting legislation to compel professionals to report serious cases of child abuse, including sexual assault. We have the following comments and recommendations on (1) the definition and division of children, (2) the inclusion of exemption and (3) reporting channels in the proposed legislation.
Definition of children: Mandatory reporting applies to persons under the age of 16
We suggest that the age of the applicable persons for mandatory reporting should be adjusted from under 18, which is recommended by the Government, to under 16; the scope should be further divided into two categories by age - "child" (under 14) and "young person" (14 or above but under 16). Regarding cases of young persons, the new legislation should give professionals the flexibility to determine whether to report, subject to the will of the young persons.
In the local ordinances, the age of protected persons is mainly of those under the age of 14 or 16, rarely 18. This reflects the general belief in society that people aged 16 or above have the ability to protect themselves; nevertheless, people below 16 need legal protection. In particular, it is worth noting that the Hong Kong Law Reform Commission introduced a new offense of "Causing or Allowing the Death or Serious Harm of a Child or Vulnerable Adult" in 2021, imposing criminal liability on those who fail to take steps to protect a child under 16 years of age. The Hong Kong Law Reform Commission came to this conclusion after a four-month public consultation at that time, which proposal is of a great reference value.
In addition, we propose to further divide the applicable person of the new law into "child" (under 14) and "young person" (14 or above but under 16). According to the Protection of Children and Juveniles Ordinance, a person under the age of 14 is defined as a "child", and a person over the age of 14 but under 16 is "young person". The Juvenile Abusers Ordinance assumes that a person over the age of 14 has the ability to commit crimes. This implies that a person over the age of 14 is able to judge and make their own decisions to a certain degree and thus, he/she is liable for his/her wrongdoing. It can be seen that the legislation distinguishes "young persons" from "children", acknowledging that there are substantial differences between "young persons" and "children" in terms of intellectual ability and capacity. Young persons have a certain degree of maturity and analytical ability to make informed decisions. They might have made up in their mind on how to handle the incident, including whether to report the abuse to the police or the Social Welfare Department.
With regard to the cases involved "young person", we believe that the law should give professionals the flexibility to take into account the will of young people, when deciding whether to report or not. To address this issue, it is suggested that the Government should include provisions on 'exemption' to the proposed legislation.
Inclusion of 'exemption' in the proposed legislation
It is suggested to include 'exemption' provisions in the proposed legislature, which clearly state that a professional can be exempted from legal liability for not reporting, in the circumstances where he/she -
knows the sexual assault through disclosure by a young person (14 years of age or older) who is suspected of being abused;
has reasonable grounds to believe that the young person has the capacity to make an informed decision about whether to make a report; and
knows that the young person does not want to report the assault to the police or the Social Welfare Department.
A young person is relatively capable of making decisions appropriate to his or her current situation, including seeking help and disclosing abuse. Many victims expect confidentiality from social workers, not to alert the police or other government departments and above all, their family members. If a professional reports the assault of young persons, disregard their will, is denying their voice and autonomy. This will constitute a barrier to seeking help for this group of people.
In the work experience of RainLily, when it comes to the cases involved with young persons, it is important for us to assist them to regain autonomy, well inform them of each option and empower them to make decision. Mandatory reporting is supposed to serve the best interest of children. However, if children found their cased being reported against will, they may feel disrespected. This deprives them of the autonomy.
We suggest that the government includes provisions on 'exemption' to the proposed law, stipulating that if a self-reporting young person (14-15 years old) objects to reporting the abuse to the police or the Social Welfare Department, the professionals assisting the case are exempt from liability. "Exemption" does not prohibit reporting. A professional can choose to report according to regulations when they see the need; however, if they do not report the case after taking into account the consent of the young person upon their professional judgment, they do not need to bear the criminal liability. The purpose is to allow flexibility for professionals to decide.
According to Section 327(2) of Crimes Act 1958 (Victoria), failing to disclose a sexual offense committed against a child under the age of 16 is unlawful. But at the same time, the offence contains provisions on exemptions and reasonable excuse for not reporting. Section 327(5) states that incidents are exempt from reporting if: (a) The sexual assault is disclosed by the abused child him/herself; (b) the victim was at least 16 years of age at the time of disclosure of the sexual assault, and (c) The child requests that the other party not report the incident, given that the child must also have the capacity to make an informed decision and be of normal intelligence. Conversely, if the child does not possess the above-mentioned capacity, the exemption is not applicable.
As mentioned above, many sexual assault incidents are disclosed by the victims themselves. Therefore, for cases seeking help on their own, our society should give them space to make a decision on whether to disclose it to a third party. We certainly understand that children have lower cognitive ability and maturity and thus, may not be able to make informed decisions. However, young persons (persons over the age of 14) have higher abilities and therefore, the exemption may be limited to cases involving young persons.
The above suggestion is based on our experience and observations. There may be a wide variety of situations that are not suitable for mandatory report. We hope, the authorities can consult the professionals and groups to collect the extraordinary circumstances, which are not applicable to mandatory reporting, to include in the scope of exemptions. This leaves room for professionals to assess and make a decision that serves the best interest of the clients.
Expanding reporting channels by including designated service organisations
According to the government's current proposal, the channels for mandatory reporting are two: 1) the police; or 2) the Family and Child Protective Services of the Social Welfare Department. We recommend that the reporting channels could be expanded by including 3) designated service agencies that provide support for abused children.
Many survivors of child sexual assault who seek help from RainLily in their adulthood disclose that they had actually sought help from other professionals (such as the police) in the past. Due to improper handling, they suffered from unnecessary psychological harm, which indirectly caused them to refrain from seeking help until many years later. These cases reflect that the establishment of a reporting mechanism is as important as the follow-up after receiving a case. Institutions and personnel providing services for abused children have relevant knowledge and experience in handling the case with sensitivity. They also make professional judgment and arrange follow-up plans, according to the needs of the case.
In addition, we believe that this recommendation will bring the following advantages. First, it gives the abused children (especially young persons who are older and more capable of making informed decisions) and other professionals (such as school teachers) an additional choice to seek assistance. Secondly, this can utilize the existing professional services to ensure that abused children receive the most appropriate and timely services. For example, the designated organization that receives the case may conduct an investigation and follow up immediately, without having to report to the Social Welfare Department or the police first. Thirdly, it could make good use of community resources to maximize efficacy. The service organizations that provide support to abused children have extensive front-line experience in handling cases, investigations, and follow-ups. These resources and experience are not only beneficial to children but also allow the authorities to concentrate resources and manpower on other related matters, and hence maximizing the effectiveness of the reporting mechanism.
Hear Me Out
Can mandatory reporting bring child sexual abuse cases to LIGHT?
Some people believed that the legislation of mandatory reporting can bring more child abuse cases to light, including sexual assault. Reporting the cases to the police or authorities seems to be the only solution. However, is mandatory reporting the best way to reveal child sexual abuse? Is the intervention by legal system serving the children’s best interest? Will mandatory reporting bring child sexual abuse cases to light or make them more hidden?
The members of "Child Sexual Assault Survivors Group" hope to raise concerns of mandatory reporting to the society, by revealing their experience of help-seeking.
Is mandatory reporting a pre-requisite for revealing child sexual abuse cases?
The general public commonly associate physical violence with sexual assault, making them wrongfully believe that sexual assault would leave visible scars that one can see. In fact, most sexual assaults leave no physical injuries. The case never comes to light until the children disclose the case by themselves. "Since there was no domestic violence involved in my case, no one was really aware of it. For the case becomes known to others, it all depends on whether or not the victims disclose." (Bella). However, it is not easy for children to speak up for themselves. In nearly 45% of child sexual assault cases, the abuser is a family member or a relative. The complex relationship makes it difficult for the victims to differentiate whether the behavior is an expression of love or a sexual assault. They do not disclose sexual assault to others until they realize that the behavior is inappropriate. "When I was 10, 11- year old, I didn't really know what was going on and thought that all daughters in the world must being experienced the same thing. I didn’t find anything abnormal in the behavior. By the time I realized that the behavior is inappropriate, I was already 15, 16 years old. But I was wondering if it was still necessary to speak out" (Bella). Growing up without much sex education, many victims did not realize that the behavior was sexual assault until adolescence. Children were confused about whether the behavior is an expression of love or a sexual assault, if the abusers were their parents. "If a child can't tell it is a sexual assault, but say "My dad just loves me", we will never be able to find the truth. What society needs to do is strengthening sex education; to let the children know those behaviors are inappropriate" (Christina). Sexual assaults leave no physical injuries. Its exposure depends on the disclosure by the victims themselves. The fundamental solution will be anti-sexual violence and gender equity education. Through education, we inculcate the children with the knowledge of identifying and disclosing sexual assault. It will also be able to improve bystander's sensitivity to sexual abuse.
Is reporting to the police and going to court the best way to deal with sexual violence?
Many people believe that bringing abusers to justice and sending them to jail is the best way to tackle sexual assault. However, ignoring children's opinions, if not, reporting sexual assault incidents against children’s will, is a brutal act that deprives victims’ autonomy. "When I met the social worker, she asked me if I agree (to call the police). I said no. She told me that it was not up to me to make the decision. Therefore, she actually forced me to report to the police." Christina described her case being forcibly reported to the police is a manifestation of the deprivation of her autonomy. "The sexual assault happens against my will. What happened after the case being reported to the police also took place without my consent" (Christina).
The secondary trauma brought about by the judicial process is too often to be heard. Does a child know what will come next after reporting to the police? The whole family may be affected and the relationship may change. Whether it is reporting to the police or arranging residential facilities for children, it is necessary for professionals to help children get mentally prepared for what coming up next. "Before I even knew what was going on and what to do, I had to face a series of hearings. I didn't know that they would call the police and didn't even know how to respond to everything that took place afterward" (Christina). Society assumes that reporting to the police will surely stop sexual violence. But what if the prosecution fails? Would the abuser impose greater harm on the children, if they were acquitted of all charges? "Will the problem be solved just by calling the police? What if the abuser refuses to plead guilty? I was too young to describe the details of sexual assault incident and the assaults happened more than once. How can a child describe such a thing clearly? If he was acquitted of all charges and sent back home, wouldn't that put me at risk of exposing to more abuse?" (Bella) People only care about penalizing the abuser, without taking into account the pressure of giving testimony born by the children, the secondary trauma brought by judicial procedures, and backlash of losing the lawsuit, so on and so forth. To decide on whether to report the case to the police, one should consider from a victim's point of view.
Can mandatory reporting bring child sexual abuse cases to light?
Bella disclosed her experience of sexual assault to her teacher when she was 16 years old. The teacher later referred her to the social worker at school, "When I saw the social worker, I asked her: 'You won't tell the school, will you? You won't tell my family, will you? If you will, then I won’t tell you anything!” This was my biggest concern. I had a lot of concerns at that time and I don't want my family to get involved in this". She was glad that the school social worker did not report it immediately, but spent a lot of time giving her psychological counseling and rehearsing how to tell her mother. However, if there had been a mandatory reporting at that time, she might have made a different choice, "If there had been laws on mandatory reporting, I don't think I would tell my teacher. I might not disclose until I was 18 years old."
A secondary school students aged 14 or 15 has reached a certain level of maturity and has the ability to analyze the situation. He/she has many concerns about whether to disclose the sexual assault. If there is legislation on mandatory reporting, they may choose to face it alone and refuse to seek help because they are worried that the incident will be disclosed to a third party, if not, the law enforcement. Will mandatory reporting bring child sexual abuse cases to light, or make them more hidden? We urge the government to include ‘exemption’ regarding the cases involving young person to the proposed legislation. This might prevent the situation where the law deters the young persons from seeking help.