It’s Not Child’s Play: Sports Organisations and Child Safety Offences

November 24, 2021

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The recent case of former Australian junior swimming coach John Wright has shone a light on child sex abuse within Australian sporting organisations. Mr Wright was recently remanded in custody and is facing charges of historical child sex abuse relating to his conduct against a number of prominent swimmers whilst he was coaching them as children in the 1980s.  Earlier this year, a review into gymnastics in Australia also showed that many young gymnasts were historically subjected to physical, psychological and sexual abuse.  A few months ago, three former gymnasts launched legal proceedings against Gymnastics Victoria in relation to historical sexual abuse claims relating to their former coach.  2021 also saw shocking allegations of a historic child sex abuse ring in the St Kilda Little League during the 1960s and 1970s involving coaches and administrators Darrell Ray, Albert Briggs and Gary Mitchell.

The impacts of such abuse can be long lasting for the young athlete victims and can lead to reputational damage to the sport.  Shane Lewis first opened up about the abuse he allegedly experienced at the hands of Mr Wright following a suicide attempt in 2010.  His death earlier this year prompted other alleged victims to speak out about the abuse they and others suffered.  The ABC earlier this year also reported on the devastating impacts of the St Kilda paedophile ring on certain of its young victims which in some cases led to years of drug abuse, addiction, mental health issues, and hardship.  Internationally, gymnastic great, Simone Biles, has recently commented that she may quit the sport because she continues to suffer as a result of USA Gymnastics’ failure to protect her and her fellow gymnasts against abuse by Larry Nassar.

These cases serve as a reminder of the risks of child abuse occurring in sport and that when it does occur, it can have devastating impacts for the athletes, the sporting organisations and the sport itself.

No sporting organisation wants to find itself in the news for failing to protect its participants from serious harm at the hands of sports administrators, coaches or medical staff, especially when the participants are vulnerable young athletes.  Reputational harm aside, sporting organisations may face lawsuits from victims, as in the case of USA Gymnastics, and in Victoria, there may now also be criminal consequences for failures to protect against risks to children.

This article will explain the obligations and potential liability under civil or criminal law which sports clubs in Victoria may face for failures to protect against child sex abuse under criminal and civil law.

In a separate article we will discuss the Commonwealth Child Safe Framework and National Child Safe Principles, the Sport Australia Child Safe Policy and Victoria’s new Child Safe Standards, which commence operation in July 2022.

Liability for failure to protect against child abuse

Sporting organisations and individuals within sporting organisations that fail to take steps to protect children under their care, supervision or authority from harm resulting from child abuse may also be liable under civil or criminal law.  Liability will arise where the abuse or risk of abuse arose from a person associated with the sporting organisation and the sporting organisation or an individual in a position of authority within the sporting organisation failed to take reasonable steps to protect against harm.  Persons that may be relevantly associated with a sporting organisation include any person who is an officer, employee, manager, owner, volunteer, contractor or agent of the sporting organisation.

Criminal offence

People with positions of authority within a sporting organisation should ensure that they are taking steps to protect children from known risks arising from persons associated with the sporting organisation.  A negligent failure to remove the risk resulting from such a person may be a criminal offence under s 49O of the Crimes Act.

Specifically, a person within a sporting organisation commits the offence of failing to protect a child from a sexual offence when that person:

  • Is aware of a substantial risk that a child under the age of 16, that is or may come under the care, supervision or authority of the sporting organisation, will become a victim of a sexual offence committed in Victoria by an adult “person associated” with the sporting organisation;
  • occupies a position within that sporting organisation that gives them the responsibility or power to reduce or remove a substantial risk to child relating to sexual abuse; and
  • negligently fails to reduce or remove that risk.

Such conduct will still constitute an offence regardless of whether a sexual offence has been proved to have been committed.  It will be negligent to fail to take steps where the failure to do so involves a great falling short of the standard of care that a reasonable person would have exercised in the circumstances.

A person found guilty of the offence is liable to up to 5 years imprisonment.

Civil liability

Victims of child sexual abuse may sue sports organisations for the organisation’s failure to take reasonable care to prevent the victim from child abuse by an individual associated with the sport organisation, as long the abuse occurred while the victim was under the care, supervision or authority of the relevant organisation.

If an individual sues a sporting organisation for a breach of its duty of care in relation to child abuse, the sporting organisation will be presumed to have breached its duty of care where proof of child abuse exists, unless it proves on the balance of probabilities that it took reasonable precautions to prevent the abuse.  Therefore, sporting organisations that do not actively take steps to reduce the likelihood of child sexual abuse may be liable for any harm that occurs to a child.

Criminal offences where there is a failure to report child abuse

There are two key criminal reporting obligations associated with child safety in Victoria. These obligations are “criminal” in the sense that a failure to report the child safety issue is a criminal offence which may lead to imprisonment or significant fines. The two reporting obligations are derived from:

  1. Section 327 of the Crimes Act 1958 (Vic); and
  2. Section 38 of the Occupational Health and Safety Act 2004 (Vic) (OHS Act).

Section 327 of the Crimes Act

This provision imposes an obligation on all people over 18 years of age to report to Victoria Police an incident if they have a “reasonable belief” that child sexual abuse has been committed by another adult against a child under 16 years of age.  Child sex abuse includes, but is not limited to:

  1. rape of a child;
  2. sexual assault of a child;
  3. grooming of a child;
  4. encouraging a child to engage or be involved in a sexual activity; and
  5. causing or allow a child to engage or be involved in a sexual activity.

A person must make this report as soon as it is practicable to provide that information unless they have a reasonable excuse for not doing so. A reasonable excuse includes fearing on reasonable grounds for the safety of any person other than the person reasonably believed to be the perpetrator of the child sex offence.  A reasonable excuse does not include protecting the perceived interests of the alleged offender or any organisation (including a sporting organisation).  In the absence of a reasonable excuse, a failure to report can result in up to three years imprisonment.

In the case of PPA v Secretary to the Department of Justice and Community Safety (Review and Regulation) [2019] VCAT 1962 (11 December 2019), it was established that a mother had committed an offence under section 327 because she had failed to report her daughter’s allegations of child sex abuse against her father to police.

The same offence would apply to anyone involved at a sporting organisation who witnesses an incident of child sex abuse or is informed of an account of child sex abuse by another person, including the victim

However, a person who is informed by a victim aged 16 years and above of their child sex abuse who does not wish for that information to be disclosed is generally not liable for an offence if they fail to report the allegations.

Section 38 of the OHS Act

This provision is different to the provision in the Crimes Act in that it concerns physical injuries to the child in a workplace rather than child sexual abuse, and is not specific to harm to children. It imposes an obligation on all workplaces covered by the OHS Act to report to WorkSafe Victoria (WSV) any safety incident which has occurred in the workplace and results in harm to the physical wellbeing of a person, including a child.  Harm to the physical wellbeing of the child includes, but is not limited to:

  1. Death of the child;
  2. Injuries requiring hospitalisation; and
  3. Injuries requiring immediate attention.

The workplace must make this report immediately after becoming aware that the incident has occurred. A written record of the incident must also be provided to WSV, and kept for at least 5 years.  This record must be provided within 48 hours after becoming aware that the incident has occurred.

A failure to report a relevant incident under this provision is an indictable offence.  This can result in a fine of up to 240 penalty units (approximately $40,000) for natural persons or 1,200 penalty units (approximately $200,000) for body corporates, including sports clubs and organisations.

An example of where this may be relevant to a sports club or organisation is where a child is employed by a sports club and becomes injured at work.

Conclusion

Sports organisations should be aware of the risk of child abuse, and child sexual abuse in particular, and should be taking steps to prevent and report all instances of child abuse.  A failure to take steps may not only cause significant harm for any victims, but it may also result in criminal or civil liability for the sporting organisations or individuals within the sporting organisation who fail to take reasonable steps to report or protect against child abuse.

SportsLawyer understands that sports organisations may have further questions regarding their child safety reporting organisations. If your sports organisation needs assistance, please contact our sports law team at SportsLawyer on (03) 9642 0435 or reach out to us at info@sportslawyer.com.au.

Disclaimer:  Nothing in this article should be relied upon as legal advice.  The contents of this article should be regarded as information only, and for specific legal matters, independent advice should always be sought.  Please contact Paul Horvath on info@sportslawyer.com.au or phone (03) 9642 0435 to discuss any matter or to arrange an appointment.

Sources

Crimes Act 1958 (Vic)

Occupational Health and Safety Act 2004 (Vic)

Wrongs Act 1958 (Vic)

https://www.abc.net.au/news/2021-10-05/swimming-coach-john-wright-accused-of-abusing-boys/100504054

https://www.abc.net.au/news/2021-10-21/ex-swimming-coach-john-wright-extradited-on-child-abuse-charges/100556616

https://www.abc.net.au/news/2021-10-20/swimming-coach-john-wright-accused-of-abuse-arrested/100555244

https://www.abc.net.au/news/2021-05-15/paedophile-coaches-turn-boyhood-dreams-into-nightmares-st-kilda/100080988

https://www.abc.net.au/news/2021-05-19/advocate-peter-jess-st-kilda-little-league-paedophile-ring/100144382

https://www.theage.com.au/national/victoria/gymnastics-victoria-sued-over-historical-sexual-abuse-by-independent-coach-20210722-p58c1n.html

https://www.abc.net.au/news/2021-05-03/gymnastics-australia-report-human-rights-commission-culture/100111962

https://www.washingtonpost.com/sports/olympics/2021/10/21/simone-biles-still-scared-gymnastics/