If you are concerned or suspect that a child has experienced sexual abuse or that a child 10 years and over has exhibited sexually abusive behaviour you must follow the Four Critical Actions for Early Childhood Services: Responding to Incidents, Disclosures or Suspicions of Child Abuse.
For children aged 10-15 you may also report concerns about sexual behaviour to DHHS Child Protection, who can make an application to the Children's Court for a therapeutic treatment order.
It is strongly recommended that all early childhood service staff follow the Four Critical Actions For Early Childhood Services
These Actions are best practice and align with your duty of care obligations.
What is inappropriate sexual behaviour?
Inappropriate sexual behaviour includes:
Problem sexual behaviour
Problem sexual behaviour is the term used by the Victorian government and funded service providers to describe concerning sexual behaviour exhibited by children under the age of 10 years. Children under 10 years are deemed unable to consent to any form of sexual activity and cannot be held criminally responsible for their behaviour.
Sexually abusive behaviour
Sexually abusive behaviour is the term used by the Victorian Government and funded service providers to describe concerning sexual behaviour by children aged 10 years or older and under 15 years of age. A child is considered to exhibit sexually abusive behaviour when they have used power, authority, or status to engage another party in sexual activity that is unwanted or the other party is unable to give consent. A child who engages in sexually abusive behaviour may be in need of therapeutic treatment. It may also be an indicator that the child has been or is being sexually abused by others.
Sexually abusive behaviour may amount to a sexual offence. A sexual offence includes rape, sexual assault, indecent acts and other unwanted sexualised touching, all of which are offences under the
Crimes Act 1958.
It may be difficult to determine the nature of children's sexual behaviour, including whether the behaviour:
- constitutes a sexual offence
- is indicative of any underlying abuse.
Under Victorian Law:
- children aged between 12-15 can only consent to sexual activity with a peer no more than two years their senior
(therefore sexual contact led by a child with another child outside of these age parameters may amount to a sexual offence)
- in order for a person to consent to sexual activity they have to have the capacity to understand the context and possible consequences of the act (therefore sexual contact led by a child involving a person with a
cognitive impairment or affected by alcohol and other drugs may also amount to a sexual offence).
Most critically you
must follow the
Four Critical Actions for Early Childhood Services: Responding to Incidents, Disclosures or Suspicions of Child Abuse if:
- you witness an incident, receive a disclosure or form a reasonable suspicion that a child has engaged in inappropriate sexual behaviour, even if you're not sure (these actions will support you to report to Victoria Police)
- a child's inappropriate sexual behaviour leads you to form a reasonable belief that the child may be subject to abuse.
Reporting a Child in Need of Protection or Therapeutic Treatment
Any member of the public is able to report concerns about inappropriate sexual behaviour to DHHS Child Protection and / or Victoria Police.
In the case of sexually abusive behaviour by a child aged between 10 – 15 years of age, DHHS Child Protection may determine that the child may be in need of therapeutic treatment. This therapeutic treatment can be provided on a voluntary basis, with the consent and support of parents / carers; or it can be ordered by a Court via the making of a therapeutic treatment order.
DHHS Child Protection may make an application to the Children's Court for a therapeutic treatment order if it is assessed that:
- a child is of, or above the age of 10 and under the age of 15 years; and
- has exhibited sexually abusive behaviours.
A therapeutic treatment order must require the child to attend an appropriate treatment program to address their sexually abusive behaviours. It may also direct the child's parent(s) or carer(s) to take any necessary steps to enable the child to participate in the treatment.
Reporting to DHHS Child Protection in relation to a child who may be in need of therapeutic treatment does not replace your requirement to report possible sexual offending to Victoria Police as per the Four Critical Actions For Early Childhood Services .