Paedophilia

Hey i need to find out what the current law that applies to paedophilia in Australia is? Is it a recent law or has it been in operation for some time? Do you, as a lawyer, believe the current law could be amended in any way?
Thankyou

[sandra]

Parliamentary Joint Committee on the Australian Crime Commission


CHAPTER 2: Definitions and Background

Introduction

2.1 In addressing the extent to which organised paedophile networks have become established in Australia, the meanings attached to "organised", "paedophile" and "networks" are all of critical importance. As will become clear later in this report, if very stringent definitions of these terms are adopted, it is possible to conclude that there are few if any organised paedophile networks operating in Australia. Different conclusions are possible if less stringent definitions are adopted. However, the words have no agreed meanings. Neither the NCA Act or any other authoritative instrument obliged the Committee to adopt one set of definitions rather than another.

Definition of 'Paedophile'

2.2 To be a paedophile is not, as such, a crime. There is, therefore, no common law or statutory definition in Australia of the word, or of the related word "paedophilia". Paedophile offences are framed in terms of rape, sexual assault, indecency, making or possessing child pornography and so forth.

2.3 The Macquarie Dictionary defines "paedophilia" as: "sexual attraction in an adult towards children". The Concise Oxford Dictionary defines the word as: "sexual love directed towards children". The term "pederasty" is sometimes used in popular discussion as the equivalent of "paedophilia". The Macquarie Dictionary defines "pederasty" as: "homosexual relations, especially those between a male adult and a boy". The Concise Oxford Dictionary defines the word as: "sodomy with a boy".

2.4 The diagnostic criteria for paedophilia set out in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders are often referred to, although of course they have been devised for medical, not law enforcement, purposes. These criteria are:

A. Over a period of at least 6 months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child or children (generally age 13 years or younger).

B. The fantasies, sexual urges, or behaviors cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

C. The person is at least age 16 years and at least 5 years older than the child or children in Criterion A.

Note: Do not include an individual in late adolescence involved in an ongoing sexual relationship with a 12- or 13-year-old.

2.5 All the definitions of "paedophilia" involve the concept of "child". So the question then arises: what age range is covered by "child" in this context? There is no consistent answer to this. In the medical and sociological literature phrases such as "true paedophilia" and "genuine paedophilia" are used to refer to biologically pre-pubescent children. However the distinction between pre- and post-pubescent is not readily transferred to the sphere of law enforcement: the age of puberty varies from person to person, and cannot always be readily determined on the spot by an investigating police officer. Therefore the definition of "biological paedophilia" is often replaced with what has been called "socio-legal paedophilia". This includes post-pubescent children until they reach an age where the particular society no longer regards them as children under its laws (eg. when they reach the age of legal consent to sexual acts, or the minimum age for marriage, or the age of majority). This age, of course, varies considerably from country to country. It also varies within Australia, due to the impact of various laws in the States and Territories defining "child" differently for different purposes. The examples in the following paragraphs indicate something of the diversity of approaches which are possible to defining "child" in the context of paedophilia.

2.6 If the term "paedophile" is used formally by Australian law enforcement agencies at all (as opposed to a phrase such as "child sex offender" or "child abuser" or "child molester") it seems generally to be used to refer to offences involving children up to at least the age of 16. The 1994 Commonwealth legislation against child sex tourism operates by reference to offences against persons under 16. Legislation in Australia against possession of child pornography likewise does not distinguish between pre- and post-pubescent children, but covers all persons under the age of 16. The statistics gathered at a national level on child sex abuse in Australia use either under-17 or under-18, according to the State or Territory from where the data comes.

2.7 The Australian Bureau of Criminal Intelligence report in 1993, Paedophiles and child sexual abuse: a national assessment, used "child" to mean a person under 18 years, although it noted that this definition might not be satisfactory for all purposes. The National Association for Prevention of Child Abuse and Neglect also uses "child" in this way, as did another recent report on child abuse. The NSW Independent Commission Against Corruption's interim report, referred to in paragraph 1.6 above, said that for "the purpose of the Commission's working definition [of paedophilia] 'children' includes at least young adolescents". The United Nations' efforts to tackle child prostitution and child pornography are based on the definition of "child" in UN Convention on the Rights of the Child: "every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier". Most popular discussion in the media and elsewhere uses "paedophile" without any clear definition but seemingly to refer to acts against children of up to at least 16 years of age.

2.8 The National Crime Authority, as a working definition for its strategic intelligence assessment, defined "child" to be a person who is below the age of consent in the Australian jurisdiction from which the data comes. This has the advantage, in a law enforcement context, of linking the meaning of "child" to the criteria in each jurisdiction's definitions of child sexual offences, and hence facilitating the collection of data. However it results in a different ages being applied in different parts of Australia because the age of consent for male homosexual relations varies between 16 and 21, and in some jurisdictions differs from the age for heterosexual relations. Moreover, within jurisdictions the age of consent can vary according to whether or not there is a special relationship or minimal age difference between the perpetrator and the child. The Authority's approach also recognises that in some jurisdictions the definition of "child" for the purpose of child pornography offences differs from that for other child-sex offences. Thus no one definition of "child", and hence of "paedophile", has governed the collection of data by the Authority.

2.9 The Committee has given these illustrations and comments not by way of criticism, but merely to illustrate that there is no simple solution to the problem of defining "child" in this context.

2.10 For the purposes of its inquiry, the Committee has chosen to focus primarily on offences relating to pre-pubescent children and to children in early adolescence - up to about the age of fourteen. It considers that there is a distinction between offences involving pre-pubescent children and those in their mid-teens who are close to biological sexual maturity and may in fact possess a degree of sexual sophistication. However, in adopting this focus it did not exclude any allegations of organised paedophile activity relating to older children.

2.11 Expert opinion seems to favour the view that the term "paedophile" should not be used to cover all adults who commit sexual offences against children (of whatever age). For example, under the American Psychiatric Association criteria (quoted in para. 2.4 above), a person can be a paedophile without ever having sexually molested or abused a child, and can sexually molest a child without being a paedophile. The categories of child molester and paedophile overlap, but are not identical. Some paedophiles simply fantasise or act out their fantasies in ways that are not illegal. Conversely, some persons sexually abuse children without having any sexual attraction to them, as the Victorian Government's submission explained (p. 8):

Offenders who commit offences in the family setting are generally considered to be situational child molesters. Situational child molesters may not be driven to offending against the child because of a primary sexual preference for children but rather they find themselves in a situation where the child is available, they have power over the child and engage the child in sexual activity.

2.12 In the context of child sex tourism to Asian countries, it is sometimes said that some tourists seek out under-age partners in the belief that they are less likely to be carriers of AIDS or other sexually transmitted diseases, rather than because of any paedophile preference for children.

2.13 The distinction between situational and preferential child molesters is commonly made in the literature. However, it is by no means universally adopted in Australia or overseas, and the dividing line between the two categories may not always be clear. For example, a preferential molester detected sexually molesting a child may claim to be a situational child molester to avoid further investigation of his or her activities or to avoid admitting his or her true preference. If detected offending in an intra-family situation, other, possibly long-continuing, sexual offences against children outside the family may go undetected if it is accepted too readily that the offender is a situational molester.

2.14 Nonetheless the Committee found the distinction between situational and preferential child molesters a useful one. Because situational or non-paedophile child sexual abuse is largely opportunistic it seldom involves any degree of organisation or networking. Hence it largely fell outside the scope of the Committee's inquiry.

Profile of Paedophiles

2.15 It became clear to the Committee that it is simply not possible to describe concisely and accurately the behaviour traits and characteristics of paedophiles. There are, it seems, always exceptions to any general statement or profile that may be put forward. Although there is a large body of academic research relating to child molesters and paedophiles, it is difficult to draw concise consistent conclusions from it. In part this is due to the complexities of the human behaviour involved. In part it is because the many different studies have used differing definitions of such key terms as "child" and "sexual abuse". A further problem is the location of willing research subjects, given the illegal nature of much paedophile activity. If incarcerated paedophiles are studied, any conclusions reached may not be valid in relation to non-incarcerated paedophile offenders. Locating willing research subjects in the latter category is obviously not practical.

2.16 It seems to be agreed that paedophiles come from virtually all social, income, racial, ethnic and age groups. The following is part of the description of the characteristics of paedophiles contained in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders:

Individuals with Pedophilia generally report an attraction to children of a particular age range. Some individuals prefer males, others females, and some are aroused by both males and females. Those attracted to females usually prefer 8- to 10-year-olds, whereas those attracted to males usually prefer slightly older children. ... Some individuals with Pedophilia are sexually attracted only to children (Exclusive Type), whereas others are sometimes attracted to adults (Nonexclusive Type).

2.17 Surveys report that well over 90 per cent of perpetrators in child sex offences are males. Some suggest that there is serious under-reporting of female child-sex activity. It is not clear on the information available to the Committee whether those females who do commit offences are preferential or situational offenders (see paragraph 2.11 on this distinction). Some suggest that female paedophiles (ie. preferential offenders) do not exist. Where paedophile activity is organised in any way, the organisers seem invariably to be men. If women are involved at all in such activity, their roles seem invariably to be subordinate ones, typically assisting their male partner.

2.18 Most paedophiles become aware of their sexual orientation during adolescence, though some say that they did not become aroused by children until middle age. A characteristic of some paedophile offenders, not shared with other types of criminals, is that they offend throughout their lives. The Victoria Police told the Committee: "somebody offending as a paedophile at age 23 is more than capable of still offending at age 73 ...". Conviction and imprisonment often does not deter from re-offending. The Committee was told that many paedophiles who commit offences rationalise their conduct and do not believe that they have done anything wrong.

2.19 Most paedophiles, it seems, do not act aggressively or violently towards children. Rather they attempt to gain the child's affection and interest by being friendly, often fixing on children who are otherwise deprived of affection. A small percentage, however, do not fit this description. It is not uncommon for paedophiles to go to great lengths over considerable periods of time to place themselves in situations where they can access children. Because paedophiles are, by definition, attracted to children, often of a fairly narrow age range, their attraction to any one child is only of limited duration. As the child grows older, the paedophile ceases to be attracted and seeks a younger replacement. Thus there is an in-built tendency to commit offences against a large number of victims.

Number of Paedophile Offences and Paedophiles in Australia

2.20 There is no precise information on the number of paedophiles in Australia, or on what proportion of those having a paedophile orientation actually commit paedophile offences. Still less is there precise information on what proportion of paedophiles who offend do so through some sort of organisation or network. Given the secretive nature of paedophilia, this absence of precise data is not surprising.

2.21 There is statistical data on reports of child sexual abuse in Australia, and the data includes some limited information about the perpetrators. However, there are many difficulties in trying to interpret this and other statistical data that is available. The major sources of statistics are based on reports to police or welfare agencies of child-sex offences or child abuse. These figures are not complete because child sexual abuse is not reported in all cases. Yet the extent of under-reporting is difficult to pin down and may be quite large.

2.22 The children, for example, may not report the activity for a variety of reasons. Under-reporting of offences involving children who have left unsatisfactory homes in their early teens (the so-called "street kids") may be due in some, or even many, cases to their acquiescence in sexual activity with adults as a means of obtaining money or accommodation. This may be combined with a distrust of police. The children may not see themselves as victims. Paedophiles are said to be adept at persuading or pressuring children into not complaining. It was argued to the Committee that for this reason the suggestion that there were secret paedophile groups operating should not be dismissed out of hand.

2.23 The most up-to-date statistics available to the Committee were those for the 1993-94 year. These cover neglect, emotional and physical abuse as well as sexual abuse, and therefore place the incidence of sexual abuse in the context of other harms to children. The definition of "sexual abuse" used in compiling the statistics is not tied to offences defined in the criminal law. Rather the definition is "any act which exposes a child to, or involves a child in, sexual processes beyond his or her understanding or contrary to accepted community standards".

2.24 These 1993-94 statistics show that there were 74,436 reports of child abuse and neglect during the year, and investigation of 64,787 of these, involving 54,738 children, was finalised during the year. Of those finalised, the reports were substantiated in regard to 24,845 children (45% of the number subject to investigation). "Substantiated" in this context is defined as meaning that "there is reasonable cause to believe that the child has been or is being abused", but it does not mean that there is sufficient evidence for a successful prosecution. Of the 24,845 children involved in substantiated cases, 4,932 (20%) involved sexual abuse. The children were males in 1,281 (26%) of the sexual abuse cases and females in 3,647 (74%) cases, with four cases where the gender was not reported. The children involved in substantiated cases of sexual abuse represented 1.1 per thousand of the Australian population in the 0-16 age groups at the time.

2.25 Of the 4,932 children involved in cases of sexual abuse, the age of the victim was not stated for 111, and a further 54 were over 16 years old. By year of age, the largest number of children were in the fourteen-year-old group (455 children), followed by thirteen-year-olds (421), twelve-year-olds (383) and then fifteen-year-olds (356). However, over half the children (2,667 or 56%) were under the age of eleven.

2.26 Although from popular discussion one might think that most child-sex offences involve anal/vaginal penetration, this is not in fact the case. For New South Wales for 1993-94 only 20 per cent of substantiated cases were of this type, while the largest single category of activity was "sexual fondling" (43%). Two of the less prevalent types of reported activity involved no physical contact with the child at all - "genital exposure/voyeurism" (3%), and "threat of sexual abuse" (2%).

2.27 The statistics do not attempt to address the question of what proportion of the cases of child sexual abuse were committed by paedophiles or what proportion involved any organised paedophile activity. Often this information would not be known at the time the report was first made, and may not be known even following the degree of inquiry necessary to determine if the report is substantiated. However, the 1993-94 statistics do provide incomplete information on the person believed responsible for the abuse. Of the 2,873 substantiated cases of child sexual abuse reported during the year for which this information is available, the parent (natural, adoptive, step, de facto or foster) was believed responsible in 994 (34.6%) of the cases and a guardian in 2 cases. A sibling or other relative was believed responsible in a further 656 (22.8%) of the cases, and a friend or neighbour in 794 (27.6%) cases. In only 427 (14.9%) of the cases was the person neither a relative, guardian, friend or neighbour.

2.28 These figures illustrate that the main perpetrators of child sexual abuse are not strangers, but are family members or persons well known to the family. The Committee considers it important that this point is not lost sight of in concerns about organised paedophile networks.

2.29 From the figures in the paragraph 2.27 is it is possible to draw some broad inferences. In terms of the distinction between preferential and situational molesters noted in paragraph 2.11 above, most of the family perpetrators would be situational molesters (ie. not paedophiles), although there have been cases where paedophiles enter into family relationships to gain access to the children. Similarly, intra-familial child sex abuse is unlikely to be "organised" paedophile activity in any meaningful sense, although again there are reported cases in which parents have co-operated in making their child available for organised abuse. Abuse by family friends and neighbours is unlikely to be "organised" paedophile activity in many cases either. Even if one is prepared to make the rough assumption that the 15% of cases falling into the "other" category involved preferential molesters (ie. paedophiles), only a proportion of these would involve organised activity.

2.30 Thus, the statistics suggest that organised paedophile activity accounts for only a small proportion of child sexual abuse, although regard has to be paid to the incompleteness of the information on reported cases and the unknown number of unreported cases.

2.13 The Committee asked police forces for their estimates of the number of paedophiles in Australia. The Victoria Police told the Committee that the number was simply unknown and unable to be determined, but offered a very tentative guesstimate of around a thousand or more in Victoria. The South Australia Police estimated there were about 300 known or suspected paedophiles in South Australia. The Western Australia Police have set up a data base containing about 700 names of suspects in Western Australia. Queensland Police estimated there were about 200 or 300 suspected paedophiles in Queensland, in addition to the 150 convicted offenders. The Northern Territory Police have identified 45 known or suspected paedophiles in statistics gathered since mid 1990.

2.32 In putting these State and Territory figures together, allowance has to be made for the fact that they are merely estimates, very tentative ones in some cases, and that the methodology and definitions underlying them are not identical. In addition the Committee did not obtain figures for New South Wales. Subject to these qualifications, a total for Australia of known and suspected paedophile offenders in the low thousands seems reasonable. This accords with the estimate given to the Committee by the Australian Federal Police: "The number of paedophiles in Australia is not known but is believed to be probably in the order of the low thousands, based on best estimates".

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