|
|
Home
| Databases
| WorldLII
| Search
| Feedback
University of Technology Sydney Law Research Series |
Last Updated: 25 September 2017
Criminalising Institutional Failures to Prevent, Identify or React to
Child Sexual Abuse
Penny
Crofts[1]
University of
Technology Sydney, Australia
Abstract
Although there is
increasing academic recognition of corporations as criminogenic, the criminal
legal system has demonstrated difficulties
in conceptualising corporate
culpability. The current Royal Commission into Institutional Responses to Child
Sexual Abuse provides
ample evidence of why organisations can and should be
criminalised for systemic failures. I demonstrate that the emphasis upon
individualistic
subjective culpability by the criminal legal system does not
adequately encapsulate the institutional failings detailed before the
Royal
Commission. Whilst mandatory reporting offences are important, these offences do
not adequately respond to the kinds of organisational
failings identified by the
Royal Commission. I argue in favour of developing a new institutional offence
constructed upon realist
concepts of negligence and/or corporate culture that
recognises that organisations are capable of wrongdoing and sufficiently
blameworthy
to justify the imposition of criminal sanctions. I conclude by
arguing that the expressive role of criminal law justifies and requires
the
criminalisation of this kind of organisational
wrongdoing.
Keywords
Systemic failure; corporate culture;
negligence; institutional child sexual
abuse.
Introduction
The ongoing Australian Royal Commission
into Institutional Responses Child Sexual Abuse (Royal Commission) proffers an
opportunity
to reform criminal legal system responses to harms caused by or
within organisations. The focus of the Royal Commission has demonstrated
the
significance of institutional failures to prevent and/or adequately respond to
child sexual abuse. There is a disjunction between
the condemnation of
organisations articulated by the Royal Commission and the criminal legal
response. There has, in fact, been no
criminal justice response whatsoever to
organisational failures to prevent child sexual abuse within institutions
caring for children. This mirrors concerns articulated generally in academic
literature about the disjunction between the social and moral condemnation of
organisations and the legal position of these organisations
(Colvin 1995). A key
obstacle militating against criminalising organisations is the difficulty of
conceptualising organisational
fault due to the dominance of individualistic
subjective culpability in criminal legal attributions of blameworthiness. This
article
explores the ways in which the criminal legal system’s emphasis
upon individualistic subjective fault is inadequate in its
response to
organisational failures and explores the ways in which organisations should have
some criminal liability for the creation,
management and response to risk when
it has materialised in harm to a child. This article endorses the creation of a
new offence
criminalising institutional child sexual abuse built around the
concept of failure.
The Royal Commission into Institutional Responses to
Child Sexual Abuse commenced in 2013 and has been extended to continue until
the
end of 2017.[2] At the time of
writing, the Royal Commission had completed its last of 57 public hearings, and
held more than 6,600 private sessions
with victim/survivors of child sexual
abuse, with more than 1,800 people awaiting private sessions. The formal public
hearings examine
evidence about child sexual abuse and how institutions have
(not) responded to allegations of abuse. The public hearings are open
to the
general public and are also telecast live on the web, the transcripts are
available on the website and the findings are then
presented in Reports. The
Royal Commission has considered child sexual abuse in a wide range of
institutions including schools, after-school
care, religious organisations, the
Australian Defence Force, the entertainment industry, sporting clubs, and health
care providers.
The Royal Commission has provided an extraordinary amount of
detail about systemic failure and its impacts upon child sex offending
and
reactions by the institution, and highlights the need to hold organisations
criminally responsible for these failures. It is
part of a series of public
inquiries that have occurred internationally into institutional child abuse
(Daly 2014; Swain 2014).[3] The Royal
Commission, like the other public inquiries, offers an opportunity for
legislators to address the unsatisfactory criminal
justice response to
institutional child sexual abuse. This potential can be situated as part of the
criminal legal system’s
response (or lack thereof) to organisational or
corporate malfeasance. Reforms in relation to corporate crime have often been
motivated
by particular events. For example, the corporate manslaughter reforms
in the United Kingdom were motivated by unsuccessful prosecutions
in response to
the deaths of 193 people on the Herald of Free Enterprise in 1987 and the
Southall rail crash in September
1997.[4] Accordingly, the current
Royal Commission could act as a catalyst for reforms to criminal legal system
responses to institutional
wrongdoing.
Corporate criminal responsibility
‘is often tolerated rather than encouraged’ (Wells 2014). Corporate
criminal law has
emerged on a case–by-case and, more recently, a
statute-by-statute basis with a consequent lack of general principles (with
a
notable exception of the Australian Model Criminal Code—Criminal Code
Act 1995 (Cth)—discussed below). There is a wealth of excellent
literature about the difficulties the criminal legal system has in grappling
with corporate responsibility (Fisse and Braithwaite 1993; Gilchrist 2012-2013;
Gunningham 1987; Wells, 2014). In particular, the
general principles of criminal
law were constructed based primarily upon individual responsibility, and this
has meant that the criminal
legal system has had difficulties in responding to
the developing dominance of business corporations (Wells 2014). A complicating
factor in conceptualising organisational liability is that many of the
institutions involved are not regarded as corporations at
law and thus evade
corporate liability (Gleeson 2016). The Royal Commission has adopted a realist
perspective with regard to institutions
that are the subject of the inquiry,
focusing on institutions and their failure to protect against and respond to
child sexual abuse
rather than definitions at corporate law which are designed,
and have been used, to protect against institutional liability (Doyle
and Rubino
2003-2004). This article reflects a similar approach. Whilst the bulk of
academic research into organisational liability
revolves around corporate law,
this article adopts a broad definition and refers to ‘organisations’
throughout to include
not only legal ‘corporations’ but also
institutions, such as the Catholic Church, in constructions of organisational
criminal liability. The focus of this article is upon the ways in which the
criminal legal system’s focus on individualistic
fault is inadequate and
the consequent need to construct collective models of fault that more accurately
reflect and reinforce organisational
responsibility.
The continuing
discomfort with organisational liability has unfortunately been reflected in the
recent proposals by the Royal Commission
for criminal law reform in the
Consultation Paper: Criminal Justice (the ‘Consultation
Paper’) (Royal Commission 2016a). The central focus of the Royal
Commission is in its title: ‘... Institutional [emphasis added]
Responses to Child Sexual Abuse’. This is also emphasised by the Letters
Patent which require the Commission
to consider the role of institutions where
child sexual abuse has occurred and their activities that have ‘created,
facilitated,
increased, or in any way contributed to, (whether by act or
omission) the risk of child sexual abuse or the circumstances or conditions
giving rise to that risk’ ( Royal Commission 2014b: m(iv)). However, the
Consultation Paper suggests that, despite the details
in the Royal Commission
case studies (numbering 57 at time of writing and henceforth referred to as
‘the Reports’), the
Royal Commission’s focus has remained
primarily on individual responsibility, specifically the criminalisation of
child sexual
abusers, and improving the response of the criminal justice system
to individuals. This article does not suggest that these reforms
are not
important. But what is disappointing is the minimal amount of time that has been
devoted to the conceptually challenging
area of organisational or corporate
liability. Of the almost 800-page Consultation Paper, only ten pages, or part of
one of the 15
chapters, are focused on criminal justice responses to
institutional failings. The bulk of analysis regarding organisational wrongdoing
is actually in a separate report, Sentencing for Child Sexual Abuse in
Institutional Contexts (the ‘Sentencing Report’) (Freiberg et
al. 2015). Arguably, the capacity for the authors to focus on criminalising
organisational
wrongdoing was beyond the terms of the brief of the Sentencing
Report as no organisations have been punished for collective wrongdoing.
However, the authors justified their approach in a chapter titled
‘Institutional Offending: The Limits of the Law’: ‘the
power
to sentence is contingent upon the conviction, or finding of guilt, of the
perpetrator. Sentencing of offenders for child sexual
abuse focuses on
individuals rather than institutions or organisations’ (Freiberg et al.
2015). Freiberg et al. go on to consider
how institutions might be criminally
prosecuted in relation to institutional child sexual abuse as a precursor to
analysing potential
for sentencing. The arguments detailed in the Sentencing
Report are later referred to in the Consultation Paper.
The focus of this article is not upon the sex offender, but the
institutions that failed to prevent and/or react to the abuse. I analyse
proposed reforms in light of the details provided in selected Reports published
on the Royal Commission website of public hearings
of case studies. These
Reports detail quotations and summaries of witness statements, relevant historic
and current legislative and
regulatory frameworks, and findings of and
recommendations made by the Royal Commission. The evidence and findings of the
Royal Commission
demonstrate that an organisational model of culpability must be
developed in order to adequately respond to institutional child sexual
abuse. A
key concern of this present article is that organisations are most likely to
cause systemic harms, and yet the more complex
an organisation, the less likely
it is to be held criminally responsible (Crofts 2016; Veitch 2007). For the
purposes of my analysis,
I focus upon the Report of Case Study Number 12: The
Response of an Independent School in Perth to Concerns Raised about the Conduct
of a Teacher between
1999 and 2009 (Report No. 12). Report No. 12 (Royal
Commission 2015b) analyses the response (or lack thereof) to concerns raised
between 1999 and
2009 by several teachers and a parent about the behaviour of a
male teacher, YJ, in the preparatory school towards a number of his
students.
The abuse was finally reported to police in September 2009 and YJ was charged
and convicted of committing sexual offences
against five students. All of the
victims were pupils in one of YJ’s classes at the time of the offending. I
have selected
Report No. 12 because it is sadly illustrative of the kinds of
institutional failures detailed in all of the Royal Commission findings.
Through
this case study, I demonstrate some of the ways in which the individualistic
focus of the criminal legal system does not
adequately or accurately encapsulate
the collective, institutional failings detailed by the Royal Commission.
The first two sections of this article focus on the ways that the
individualistic bias in the criminal justice system construction
of fault fails
to grapple with organisational liability. This is apparent firstly in the
continued individualistic bias in constructions
of corporate liability
generally, and secondly in the emphasis upon mandatory reporting offences in
response to institutional child
sexual abuse, neither of which adequately
responds to the kinds of organisational failings detailed in the Royal
Commission. In the
following sections, I argue in favour of developing a new
institutional offence constructed upon the concepts of negligence and/or
corporate culture in accordance with a realist approach that recognises that
organisations are capable of wrongdoing. I conclude
by arguing that the
expressive role of criminal law justifies and requires the criminalisation of
this kind of organisational wrongdoing.
Individualistic bias in the
criminal justice system and conceptions of organisational
fault
Historically, the criminal legal system has struggled with
ascribing responsibility to individuals within institutions who did not
actually
perpetrate a crime but could be described as ‘third parties’
responsible for the care of victims and/or perpetrators.
The individualistic
focus of the Consultation Paper reflects general principles of criminal
law that have been developed and articulated primarily around individual
responsibility. There
are exceptions, such as the doctrine of complicity and
conspiracy, but this ‘group dimension’ is characterised and regarded
as exceptional. The individualistic focus of criminal law has been retained in
the regulation of corporations. This has been demonstrated
partly in the
historic reluctance to criminalise organisations. Legal responses have been
hampered by the idea that the corporation
as a person was a fiction. For
example:
I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. A living person has a mind which can have knowledge or intention or be negligent and he has the hands to carry out his intentions. A corporation has none of these... (Lord Reid, Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1; 1972 App Cas 153, 170).
One traditional argument against extending liability to corporations was
that they lacked mens rea, thus raising the question of how they could be
sufficiently at fault to justify criminalisation. This reflects the contemporary
emphasis upon the necessity of subjective culpability for attributions of
blameworthiness (Crofts 2013a; Fletcher 1978). A classic
response to this has
been to create strict and absolute liability schemes that focus upon prohibited
actions and/or the harms caused by organisations irrespective of mens
rea. Such regulatory schemes have been adopted in the area of Occupational
Health and Safety and environmental offences. Research suggests,
however, that
such regulatory offences are frequently not prosecuted in the absence of mens
rea even though not required by the offences (Korsell 2010). A more recent
approach is to develop an argument of corporate fault analogous to
individual fault through concepts such as negligence and corporate culture
(considered below). This approach asserts
that organisations can and should be
held responsible for creating an organisational environment that may be unsafe
and therefore
criminally dangerous. On this account, an organisation can and
should be regarded as at fault for the failure to properly structure and
co-ordinate its responsibility where these systemic or cultural problems
underpin harms. A second classic
argument against the criminalisation of
organisations was that traditional methods of punishment, in particular
imprisonment, could
not be applied to corporations as these methods were
constructed around individuals rather than organisations (Coffee 1981; Colvin
1995). The issue of sanctions in response to organisational malfeasance remains
challenging but jurisdictions have developed innovative
sanctions that have
included fines, remedial orders, orders for the advertisement of convictions,
fines and the nature of offences,
and suspended prosecutions (Clough and Mulhern
2002). These traditional arguments reflect and inform doubts as to whether or
not
it is appropriate to attribute criminal liability to organisations that
cause harm but are not without their own internal shortcomings.
The challenge
remains to forge a coherent link between the general principles of criminal law
and the realities of the corporate
form, and this is not insurmountable.
This article pursues the key question of how to construct the fault of
the organisation such that it is worthy of criminal sanction.
Individual
subjective culpability has framed the way in which corporate offences have been
structured. Historic approaches for attributing
blame to corporations were based
on the assumption that corporate wrongdoing could only be derivative of
individual wrongdoing. The
agency or vicarious principle held a company liable
for the wrongful acts of all its employees, providing they were acting within
the scope of their employment or authority. A more specialised form of vicarious
liability is identification liability, which holds
a company liable only when a
director or senior officer has acted with the requisite fault, expounded in
Tesco v Nattrass [1972] AC
153.[5] Identification theory has been
recognised as highly restrictive and not always appropriate. The
‘directing mind’ model
distorts decision-making in large
corporations; modern corporations divide authority in a myriad of ways which
create more than one
directing
mind.[6] This is demonstrated in the
Royal Commission Reports; even the school in Report No. 12 (Royal Commission
2015b), which was not a
particularly large or complex organisation, had a
division of labour and knowledge.
The focus on individual personnel in
the Royal Commission Reports does not adequately reflect the presence or absence
of organisational
fault. The problem that the Reports highlight is that it is
not what the upper management knew or intended, but what they did not
know or
turn their mind to. In the bulk of the Reports, upper management failed to
prioritise the safety of children and to develop
and enforce appropriate child
safety policies. The higher up in the corporate hierarchy, the less likely was a
person to know of
(suspected) grooming or child sex offending. The reporting
procedures at the school in Report No. 12 militated against upper and
middle
management being aware of suspicions about the offending teacher. The school
operated two separate personnel file systems
—one at the preparatory
school and the central file at the high school more than a kilometre
away—and neither file system
required a reference to the other. There was
no centralised database to record concerns or complaints or to facilitate a
comprehensive
review of the files when a complaint was made. The separate
systems meant that complaints were unlikely to be heard or seen by the
headmaster of the Perth independent school, who was unaware of the complaints
until the preparatory master reported them to him in
2004. The school council
and Archbishop were not informed until 2009, and that was only upon the
insistence of a parent. Upper management
was broadly unaware of complaints and
there was no system to link
information.[7] When the headmaster
was finally informed of the teacher’s offending behaviour, the headmaster
arranged a meeting with the offender,
but the head of the preparatory school was
not present. This meant that there was a lack of continuity and knowledge in
response
to the offending teacher. The headmaster relied only on the information
that was recorded in the files.
Vicarious principles and identification
theory reflect a nominalist theory of corporations, which views corporations as
nothing more
than a collectivity of individuals; that is, the idea that
corporations can only act through individuals. On this account, the corporation
is simply a name for the collectivity and the idea that the corporation itself
can act (or fail to act) and be blameworthy is a fiction.
These accounts regard
corporate responsibility as derivative: it must be located through the
responsibility of an individual actor.
In contrast, realist theories assert that
corporations have an existence that is, to some extent, independent of the
existence of
their members (Belcher 2006). Corporations can act and be at fault
in ways that are different from the ways in which their members
can act and be
at fault (Colvin 1995). The details of the Royal Commission hearings demonstrate
that a realist approach is vital.
The criminal legal system needs to develop an
account where the responsibility of the organisation is primary: what the
organisation
did or did not do; what it knew or ought to have known about its
conduct; and what it did or ought to have done to prevent harm from
being
caused.
Individualistic response to third party offending: Mandatory
reporting
The necessity of developing a realist model is demonstrated in
the shortcomings associated with mandatory reporting (and related offences),
the
pinnacle of the response by the legal system to third party offending in cases
of institutional child sexual abuse. In many of
the Royal Commission Reports,
victims asserted a failure by people in positions of responsibility to respond
to child sexual abuse
or report it to relevant authorities. Historically third
parties could potentially be ascribed responsibility under the common law
offence of misprision of a felony (since
abolished)[8] and under the doctrine
of complicity (Smith 1991). Currently, offences for third parties revolve around
the failure to report and
require some form of subjective culpability. All
Australian jurisdictions have some form of mandatory reporting offences; these
are
discussed below. In addition, some states have introduced other offences:
for example, New South Wales introduced an offence of ‘concealing
a
serious indictable offence’ in 1990 that is applicable generally to all
serious indictable offences; and in 2014 Victoria
created the offence of failure
to disclose a child sexual offence.[9]
Ireland introduced an offence in 2012 of withholding of information against
children and vulnerable adults. All of these offences
require some form of
knowledge or belief for ascriptions of culpability. There are problems with this
emphasis upon knowledge or
belief. As outlined above, the higher up in an
organisation, the less likely a person will have any form of knowledge.
Moreover,
as argued below, the majority of third parties usually lack knowledge
or belief that child sexual abuse is occurring or has occurred,
and the reason
for this lack of knowledge is itself systemic.
Mandatory reporting
offences provide a vivid example of difficulties associated with organisational
responsibility and the limits
of the criminal legal response. Most jurisdictions
have requirements that reports must be made (to police or child protection
agencies)
if a specified person has reasonable grounds to know or believe a
child is being sexually abused (Mathews 2014). There are differences
across
Australian jurisdictions concerning who has to report, what types of
maltreatment must be reported and whether criminal or
civil, state of mind of
the reporter,[10] whether the
reporting duty applies to past or currently occurring abuse only and/or to a
perceived risk of future abuse. Seven out
of the eight jurisdictions have
penalties for non-compliance.[11]
Offences of mandatory reporting can have some applicability to systemic
failures (Death 2015).[12] The
Victorian State Government inquiries—Protecting Victoria’s
Vulnerable Children Inquiry (Cummins, Scott and Scales 2012) and Inquiry
into the Handling of Child Abuse by Religious and Other Organisations
(Family and Community Development Committee 2013)—and the current Royal
Commission highlight active attempts, particularly
by religious organisations,
to conceal wrongdoing and protect the
organisation:[13]
There has been a substantial body of credible evidence presented to the Inquiry and ultimately concessions made by senior representatives of religious bodies ... that they had taken steps with the direct objective of concealing wrongdoing.
The mandatory reporting offences are appropriate for those who know about
the perpetration of child abuse and actively intervene to
protect the
perpetrator and/or did nothing. There has, however, been reluctance to
investigate, charge or prosecute (Gleeson 2016).
Prosecutions for failure to
report under mandatory reporting duties are very rare, partly because of an
emphasis upon encouraging
reporting rather than policing it. Mathews (2014) has
identified only six prosecutions in the five jurisdictions across Australia
with
a mandatory reporting regime.
Mandatory reporting offences reflect the
criminal justice system’s focus on the individual in constructions of
culpability,
with a preference for requiring some form of subjective
blameworthiness. The emphasis upon some kind of subjective element of knowledge,
suspicion or belief is ostensibly appropriate. It is in accordance with our
understandings of responsibility that one should only
be held responsible for
what we knew or intended. How could a person or institution possibly be held
criminally responsible for what
they did not know? However, in many of the Royal
Commission Reports, the issue was not that individuals knew or believed that
child
sexual grooming and/or abuse was occurring, but that they had not
recognised the grooming or offending behaviour at all. For example,
in Report
No. 12, despite eight separate complaints across time about an offending
teacher’s behaviour, the (former) heads
of the preparatory school and
headmasters did not place sufficient or correct significance on the concerns
raised with them about
the offending teacher. All of them gave evidence that
they did not receive any guidance or training in detecting or reporting child
sexual abuse or grooming behaviour (Royal Commission 2015b: 41). The Royal
Commission found:
We are satisfied that the school did not have a dedicated child protection policy until 2004.
We are satisfied that the school’s child protection policies that were in force from 2004 until 2009, although compliant with re-registration standards during the period, were deficient when measured against current standards of ‘best practice’ because:
The masters at
the school probably could not and would not have been prosecuted for failure to
report because they lacked knowledge
or belief that child sexual abuse was
occurring. But it is this lack of knowledge or belief that is the problem. Their
failure to
attach sufficient and correct significance to the reports of
inappropriate behaviour was due to an organisational failure to adequately
train
staff to recognise and appropriately report grooming behaviours. The absence of
any knowledge or belief was a systemic problem,
and the current criminal justice
focus on individual, subjective blameworthiness is accordingly inappropriate and
misguided.
Conceptualising criminogenic corporate culture
The
traditional focus on subjective culpability demonstrated in traditional
constructions of corporate liability and mandatory reporting
offences is an
inadequate response to institutional failure to protect against child sexual
abuse. It is necessary to construct a
realist approach to organisational
failure. However, obstacles confronting a realist approach to organisational
culpability are myriad
although two dominant streams can be broadly summarised
as the pragmatic and the philosophical. The pragmatic stream raises questions
about issues such as offence structures and how elements are to be
proven. The philosophical challenge is a question of why organisations should be
criminalised at all; or whether,
alternatively, organisational failure should be
best left to the civil sphere. These two challenges are frequently referred to
in
tandem and yet they are incompatible: the first expresses concern about
issues of proof and the difficulties of achieving criminalisation;
whilst the
second is concerned about over-criminalisation or inappropriate criminalisation
of organisations.
The Consultation Paper (Royal Commission 2016a)
based on the Sentencing Report (Freiberg et al. 2015) responds in part to the
pragmatic question of offence
structures by suggesting several different
organisational offences. These include being negligently responsible for the
commission
of child sexual abuse; negligently failing to remove a risk of child
sexual abuse; reactive organisational fault; and an offence
of institutional
child sexual abuse (Freiberg et al. 2015: Ch. 6). The proposed offences have the
advantage of adopting a realist perspective and focusing on organisational
culpability rather than
individual culpability. The negligence offences are the
most accessible as they propose including corporate failure into the existing
legal doctrine of negligence. It requires the prosecution to establish, firstly,
a legal duty; then criminally negligent breach of
that duty; and, further, that
the breach was a cause of the harm (Ashworth 2013).
The most innovative
and challenging offence proposed is that of institutional child sexual
abuse:
An organisation commits an offence if:
It is a defence to such an offence for the organisation to show that it had adequate corporate management, control or supervision of the conduct of one or more of the persons associated with the organisation; or provided corporate management, control or supervision of the conduct of one or more of the persons associated with the organization. (Consultation Paper 2016a: 248-249)
The offence is a modification of the Criminal Code Act1995
(Cth) Part 2.5 and requires that the organisation or a high
managerial agent recklessly authorised or permitted the commission of child
sexual assault. Such authorisation or permission can be established expressly or
through a ‘corporate culture’ that tolerated
or led to the
commission of the offence or failure to create or maintain a ‘corporate
culture’ that would not tolerate
or would lead to the commission of the
child sexual assault. Corporate culture is defined in the Commonwealth
Criminal Code Act 1995 Part 2.5 as ‘an attitude, policy, rule,
course of conduct or practice existing within the body corporate generally or in
the
part of the body corporate in which the relevant activities takes
place’. The underlying idea of ‘corporate culture’
is to cover
situations where there is a difference between an organisation’s formal or
written rules and its practices (Clough
2007).[14] An organisation can
defend itself on the basis that it is able to show that it had adequate
corporate management, control or supervision
of the conduct.
Despite
being celebrated as ‘arguably the most sophisticated model of corporate
criminal liability in the world’ (Clough
and Mulhern 2002: 138), the
concept of corporate culture has not enjoyed practical success, with very few
prosecutions testing the
provisions for organisational responsibility in the
courts and the (consequent) exclusion of Part 2.5 from operating in other
corporate
legislation including the Corporations Act 2001 (Cth) and the
Competition and Consumer Act 2010 (Cth). Practical issues raised about
corporate culture include difficulties of proving the existence of a culture and
concern that
there may be varying subcultures within an organisation
(Beaton-Wells and Fisse 2011). Questions have been raised about whose
actions or inactions should be included in considering institutional
responsibility (Royal Commission 2016a). Concern has also been
expressed that an
institution’s culture may have changed over time, by which time the
circumstances and management that allowed
the abuse to occur may have long since
changed. It is argued that, in those circumstances, criminal sanctions directed
at organisational
change would be neither helpful nor necessary (Weissmann and
Newman 2007). I argue below that these kinds of practical questions
are resolved
by the detail of the Royal Commission Reports.
Although corporate
culture is regarded as more radical and innovative, the concepts of negligence
and corporate culture intersect.
Negligence requires a failure to fulfil a legal
duty of care, whilst, realistically, in the bulk of cases of institutional child
sexual abuse, corporate culture requires the failure to create or maintain a
corporate culture that would not tolerate or lead to
the commission of child
sexual assault. Both negligence and corporate culture are built around the
concept of failure. Critics have
argued that it is anomalous to hold
corporations criminally liable for ‘permitting’ conduct, whether
under the concept
of corporate culture or negligence, which can be understood as
no more than failing to prevent such conduct, when the criminal legal
system is
generally reluctant to hold individuals liable for
omissions.[15] One response to this
critique is that, whilst the criminal legal system is reluctant to impose fault
for omissions, an accused can,
nevertheless, be held liable for omissions for
the bulk of criminal offences once a legal duty has been established (Ashworth
2013).
All the institutions considered in case studies in the Royal Commission
had legal duties to protect the children in their care, and
the bulk of them
failed long-term to fulfil these duties. Not only does criminal law have a
long-held tradition of holding accountable
those who failed to act, despite
having a legal duty, this idea of culpability due to failure, lack or absence is
reflected in classic
models of wickedness or blameworthiness (Aristotle 2004;
Aquinas 1274[2003]; Midgley 1984/2001; Crofts 2013b).
Underlying
opposition to corporate liability is fostered by a failure to comprehend the
idea of organisational responsibility. This
can be seen in one of the concerns
articulated by the Consultation Paper:
We know that perpetrators can be found at any level of an institution, including in the most senior leadership positions. It is not clear what adding corporate criminal liability to individual criminal liability would achieve if the former effectively was based on exactly the same conduct as the latter. (Royal Commission 2016a: 251)
This concern reflects a failure to distinguish between the
individual perpetrator of child sexual abuse and that of the
institution that allowed, or failed to prevent, identify or respond to,
the abuse over long periods of time due to a poor corporate culture. A
similar
argument was made by Cardinal George Pell, when giving evidence before the Royal
Commission. Pell compared the Church to
a trucking company running a
well-maintained fleet that is not liable for the actions of its workers:
If ... the driver of such a truck picks up some lady and then molests her, I don’t think it’s appropriate – because it is contrary to the policy – for the ownership, the leadership of that company to be held responsible. Similarly with the Church (Royal Commission 2014a: C4509).
This reflects a focus on individual liability and the idea that an
organisation should not be held liable for the behavior of a rogue employee.
However, this disregards
the scenario, which emerges in the Royal Commission,
where (to continue Pell’s metaphor), the truck company has a legal duty
to
care for ‘some lady’, and the truck drivers, who are in the
employment of the truck company, routinely molest these
‘ladies’ and
are enabled in doing this due to conditions of employment and the absence of
training and policies to prevent
molestation. This produces a wholly different
blame focus, which is increasingly recognised in academic literature, that the
corporation
is criminogenic: that is, corporations by their nature and culture
can produce crime (Apel and Paternoster 2009; Tombs and Whyte
2014; Green and
Ward 2004). For example, the United Kingdom Law Reform Commission had considered
a similar situation to that proposed
by Pell in 1996 and made the following
response:
... a truck driver causes death by dangerous driving in the course of his or her employment. This would not, of itself, involve a management failure. If, however, it was found that the death occurred because the driver was over-tired due to the requirement to work excessive hours, this could be due to a management failure for which the company could be liable, assuming that failure fell far short of what would be reasonably expected in the circumstances (United Kingdom Law Reform Commission cited in Clough 2007: 296-297).
The Royal Commission Reports repeatedly detail ongoing failures to prevent child sexual abuse within institutions, demonstrating that the abuse was not a one-off, tragic ‘accident’ but was due to the corporate culture of the organisation. The Consultation Paper noted that the following situations allow criminal behaviour:
Arguments against organisational
responsibility for failure to prevent or respond to child sexual abuse fail to
recognise the ways
in which the organisation itself is responsible for on-going
situations which have allowed or provided opportunities for offending
(Palmer
and Moore 2016). Good corporate culture can prevent wrongdoing, whilst bad
corporate cultures might encourage or fail to
discourage some wrongdoing
(Gilchrist 2012-2013; Palmer 2012).
Attributing blameworthiness to
organisations due to failure—whether through the concept of negligence or
corporate culture—is
potentially broad and, accordingly, they have been
resisted by the corporate world and even by governments that might be held
accountable
for their negligent acts under such laws (Hogg 2013). As I argue
below, the Royal Commission has provided clear examples of cultures
in
organisations that have failed to prevent institutional child sexual abuse and
has also demonstrated common sense approaches as
to how a prosecutor might prove
a criminal corporate culture (Woolf 1997).
The Royal Commission has
provided a myriad of examples of criminal negligence and/or corporate culture
tolerating or failing to prevent
child sex offending. Report No. 12 (Royal
Commission 2015b) is by no means the worst (or best) example of organisational
failure,
but it provides a clear example of how and why criminal failure could
and should be established. For example, a common problem in
institutions is that
staff have not been trained to recognise grooming behaviour. In Report No. 12,
the staff did not realise they
were witnessing grooming behaviour, but still
regarded it as sufficiently ‘inappropriate’ to report it to
management.
The positive effects of even minimal knowledge of grooming were
demonstrated in Report No. 12 by a mother who watched a Four Corners
national television program called Unlocking the Demons (Australian
Broadcasting Corporation 2005) which explained how paedophiles groom victims and
their families. As a consequence of this
program, the mother raised her concerns
about the offending teacher with the preparatory school head. She felt that her
family may
have been ‘groomed’ by the offending teacher and
communicated her concerns about the attention the offending teaching
had shown
to both her sons. This demonstrates an example of negligence—a failure to
meet a duty of care to protect children
in their care—and corporate
culture—the failure to create a culture that does not tolerate abuse.
Teaching staff to recognise
and report grooming behavior is a fundamental way to
protect against and respond to child sexual abuse.
Not only was there a
lack of training of staff about recognising and reporting grooming and child
sexual abuse, there was also a culture
of bullying so that staff were afraid to
report their suspicions. Teachers gave evidence that they were afraid to report
not only
because their lack of training meant they were not confident that they
were dealing with child sexual abuse, but also because they
were concerned they
would be subjected to rejection, ostracism, bullying and/or harassment from some
staff if they were identified
as ‘whistle blowers’. An example of
some of these ramifications includes those experienced by WG who, after she
reported
the offending teacher to YN, the then head of the preparatory school,
WG felt that some of the older male teachers were ‘nasty
to
her’.[16] She communicated the
bullying to the new head of the preparatory school, YK, and described an
incident where another teacher had
tried to run her over. WG said she felt that
the new head ‘did not want to know about it’. WG said she stopped
working
at the school because of the way she was treated by her colleagues after
reporting the abuse (Royal Commission 2015b: 32). Awareness
of the protective
culture around the offending teacher was shown in 2004, when the head of school
asserted that, if he had dismissed
the offending teacher, it would have caused
‘division amongst other teachers’ (Royal Commission 2015b: 39). Fear
of reporting
due to lack of knowledge about grooming behavior was exacerbated by
the bullying culture. Both ignorance and bullying could and should
have been
addressed by management and this failure to do so created an environment that
facilitated, tolerated and failed to prevent
child sex offending. The
continuation of the bullying reflects one practical means of establishing a
corporate culture by analysing
who is rewarded and/or protected by management
and who is punished (Woolf 1997).
Despite ignorance and the culture of
fear, there were clear reports by multiple teachers of consistently
inappropriate behavior by
the offending teacher. One teacher wrote:
We are not suggesting anything more serious (as in ‘sexual’) has occurred. We have no proof of anything like that. However there are several aspects to our concerns. First and foremost is the safety, both physically and emotionally of all children who have come and will come into contact with YJ. Even if what has been outlined in this letter is the total extent of what has occurred, I believe it is still totally unacceptable within any organisation let alone any school and especially our school (Royal Commission 2015b: 23).
In other words, there was sufficient evidence of inappropriate behaviour
by the offending teacher to require and justify a response
by the school.
Despite this the school’s response was grossly inadequate. At times the
preparatory school master did nothing
in response to a complaint except file it.
Where there was a response by the preparatory head, this tended to involve a
meeting with
the offending teacher, who was informed that his behaviour was
inappropriate and that he should modify his own behaviour. Even the
teacher’s response at these meetings should have raised red flags. For
example, in one meeting, he said that ‘he had
always dealt with students
in a tactile manner’ (Royal Commission 2015b: 22). The headmaster of the
school resolved to keep
the offender under closer supervision and scrutiny, but
did not do this. Management wrote formal letters of warning, but the teacher
refused to acknowledge or sign these. After the third and ‘final
warning’, the headmaster then sent another ‘final
warning’.
This response by management was inadequate and inappropriate. It gave a message
to the offender and also the staff
that there were no repercussions for grooming
behaviour. This discouraged staff from reporting offending behaviour and
encouraged
the offender to continue. The failure by the headmasters to respond
appropriately was partly due to a lack of training and
policies.[17] This was exacerbated
by a failure to report concerns to the police, child protection officers or
anyone who had experience in the
protection of children. Reports of the
offending teacher’s behaviour to any of these experts would likely have
prevented a
continuation of his overt grooming behaviour. The school needed to
have developed clear written policies on how to detect child abuse
of grooming
behaviours, the procedures for reporting child abuse or grooming behaviours,
handling complaints, expertise training
for staff on detecting and reporting
child abuse and grooming behaviour, and an environment which is conducive to
staff, parents
and students reporting concerns (Royal Commission 2015b: 10).
This aspect of Report No. 12 goes toward addressing the question of
how
prosecutors will differentiate between cultures and subcultures. It is apparent
from Report No. 12 that the dominant culture,
supported by managerial staff,
failed to prevent and/or react appropriately to child sexual abuse. Individual
staff members spoke
out against the offender and the culture but they were
acting as individuals rather than a competing subculture.
Report No. 12,
along with other Royal Commission reports, highlights systemic problems that go
beyond the organisations. This reflects
Hogg’s (2013) argument that the
state may refrain from introducing organisational law reforms because they have
the potential
to impact not only upon powerful institutions but also on the
state itself. For example, in Report No. 12, one of the reasons why
the school
had not ensured that appropriate procedures were enforced was due to the
registration process undertaken by independent
schools in Western Australia.
Despite complaints on file about the offending teacher dating from 1999 onwards,
the school was approved
for registration in 2004 until 2010. The registration
report stated that the school had developed and implemented a child protection
policy and that its documented policies and procedures were of a very high
standard (Royal Commission 2015b: 15). The registration
standards had not
incorporated the concept of grooming behaviors. Nor were there clear standards
regarding the reporting of allegations
of child sexual abuse. The Western
Australian registration standards did not clearly articulate the current
standards or benchmarks
to child protection policies and procedures against
which best practice is assessed and a school registered (Royal Commission 2015b:
16). There were two major shortcomings associated with the registration process.
The first was the approval of inadequate policies.
The second was the focus of
the registration process upon (abstract) policies rather than the culture and
practices of the school.
This absence of adequate and appropriate regulatory
standards may reflect and reinforce the difficulties of imposing organisational
liability. The systemic, cultural problems went beyond the school, to the state
and national levels of regulation and enforcement,
a problem not isolated to
Report No. 12 or to Western Australia (Mathews 2017).
Report No 12
demonstrates how corporate culture tolerated or led to the commission of child
sexual offences and failed to create or
maintain a corporate culture that would
not tolerate or lead to the commission of child sex offences. Overall, the Royal
Commission
concluded that, taken together, the history of events indicates
‘a serious systemic failure to protect children in the care
of the
School’ (Royal Commission 2015b: 40-41). Organisations involved in the
care of children have existing statutory and
common law duties of care.
Negligence requires a breach of that duty of care whilst corporate culture
requires toleration or the
failure to create or maintain a culture that would
not tolerate or lead to the commission the child sexual assault. Standards
provide
a measure against which to compare the procedures and actions of an
institution against a ‘reasonable’ institution. It
is essential to
articulate appropriate standards of care and then measure organisations against
these standards. In response to general
shortcomings in state and national
standards, the Royal Commission has developed, articulated and clarified the
national principles
for child safe institutions that should be required of
individuals and organisations involved in the care of children (Royal
Commission
2016b; Valentine et al. 2016). Of the ten principles developed by
the Royal Commission, the bulk focus on the development of institutional
governance and policies. Based on the Royal Commission findings, it should not
be that difficult to develop a national standard of
care that is applicable and
enforced across states. Interestingly, whilst the Royal Commission recognises
that a key issue to creating
child safe institutions is ‘holding
institutions to account through independent oversight and monitoring’
(Royal Commission
2016b: 2), at the moment, this is only implicit in the ten
principles rather than expressly articulated. Regardless of whether an
institutional criminal offence is created based on negligence or corporate
culture, the terms of the offence address fears of over-criminalisation.
In
order to be successfully prosecuted, the failure to meet ‘reasonable
standards’ must be sufficiently negligent to
justify the imposition of
criminal sanctions. One-off or isolated failures will not be sufficient to
justify attributions of criminal
blameworthiness. If all reasonable measures had
already been employed to stop child sex offending, then the goals of the
criminal
law in relation to the organisation would have already been met and the
organisation would not be prosecuted. The case studies in
the Royal Commission
provide examples of long-term systemic failures by institutions. Organisations
which provide care of children
must establish cultures in which prevention of
child sexual abuse is accepted as an ordinary responsibility of all adults and
the
organisation. Failure to do so means that the corporation is criminogenic
and can and should be prosecuted.
The idea of failure underlying
organisational culpability can assist in developing appropriate parameters in
terms of prosecution
and punishment. For example, in the United Kingdom, the
Bribery Act 2010 (UK) specifies that an organisation will be guilty of
corporate failure to prevent offences of bribery unless it can prove that it
had
adequate procedures to prevent the conduct (Wells 2014). The Act then details
six principles based on the Organisation for Economic
Co-operation and
Development (OECD) guidelines on compliance (OECD 2010) that comprise
proportionate procedures, top-level commitment,
risk assessment, due diligence,
communication (and training), and monitoring and
review.[18] These principles of
compliance could be developed to determine whether there was commitment by an
organisation to a culture to the
prevention of child sexual abuse. This would
also circumvent concerns about prosecuting an organisation for past failures
from which
it had since reformed. Moreover, in the Australian and international
context, increasing reliance is placed upon ‘deferred
prosecutions’
or remedies such as ‘compliance programs’ or ‘enforceable
undertakings’ to use the threat
of criminal legal prosecutions and/or
sanctions to compel corporations to comply with existing regulatory standards
(Belcher 2006;
Parker 2004). This provides an incentive to management to
undertake responsive organisational change (Fisse and Braithwaite 1993;
Weissmann and Newman 2007).
Conclusion
Systemic failure extends
beyond the types of institutions investigated by the Australian Royal Commission
to legal institutions. The
enforcement of regulatory laws has not always been
vigorous and there have been no prosecutions any organisations investigated by
the Royal Commission. This reflects opposition by corporations generally to the
notion of collective responsibility (Wells 2001,
2010). One key argument to
justify criminalisation of collective wrongdoing is to emphasise the expressive
power and role of the
criminal law (Gilchrist 2012-2013). The criminal legal
system explicitly and implicitly organises and depicts conceptions of
wrongfulness
or badness as part of its system of blaming, in addressing the core
issue of what is required to be sufficiently culpable to justify
the attribution
of criminality and the application of sanctions. The law routinely classifies
conduct, defines action, interprets
events and evaluates worth; it then
sanctions these judgments with the force and authority of law (Crofts 2013b).
Criminal liability
carries ‘a formal and solemn pronouncement of the moral
condemnation of the community’ (Hart Jr 1958). Conviction carries
with it
serious consequences and social stigma. It expresses condemnation: it is not
about just wearing a penalty for breaking the
law but opprobrium. This
expressive aspect of the law has value (Garland 1990). Moreover, it has been
suggested by theorists that
criminalising corporate conduct/failures has
specific expressive value: ‘[d]eterring inefficient conduct is one
socially desired
objective, but repudiating the false valuations embodied in
corporate wrongdoing is another (Kahan 1998). Accordingly, the fact of
condemnation is itself significant.
The law asserts models of right and
wrong, good and bad, and this assertion is enforced with the imposition of
sanctions. Theorists
have recognised and argued that the form of the law will
affect, reflect and reinforce perceptions of the morality of a particular
practice or behaviour.[19] The Royal
Commission Consultation Paper is similarly premised on ‘the importance of
seeking and obtaining a criminal justice
response to any child sexual abuse in
an institutional context’ (Royal Commission 2016a: Ch. 2). The symbolic,
expressive power
of the law is important, which is why it is disappointing that
there was not more focus on collective culpability in the Consultation
Paper.
Reforming the criminal law in this area proffers an opportunity to reframe our
notions of culpability. It is not an unfortunate
accident or bad luck that
offenders have been able to offend with impunity across months and years in
specific institutions (Death
2015). The Royal Commission hearings have provided
repetitive and remarkably consistent examples of the ways in which specific
organisations
tolerated, facilitated or failed to prevent child sexual abuse,
and these organisations can and should be regarded as criminogenic.
The
failure to prosecute or conceptualise harms caused by corporations as culpable
has its own symbolism. It suggests that ‘corporations
may violate criminal
laws if they are willing to pay for it. Corporate crime would thus be little
more than a menu of harms and prices’
(Gilchrist 2012-2013). There is
currently a disjunction between community responses to organisational failure
and the response of
the law. It is not simply a matter of a legal demand for
culpability for a criminal conviction that did not adequately meet moral
condemnation. But the structure of the criminal law has prevented any inquiry
whatsoever into the ways in which the corporate organisation
is at fault for
facilitating, tolerating, or failing to prevent child sex offending. We need
imagination and creativity to develop
and structure notions of collective
liability that adequately reflect and reinforce the fault and responsibility of
organisations
for crime.
Correspondence: Associate Professor
Penny Crofts, Faculty of Law, University of Technology Sydney, 15 Broadway,
Ultimo NSW 2007, Australia. Email:
Penny.Crofts@uts.edu.au
References
Australian Broadcasting Corporation (ABC) (2005) Unlocking the demons. Four Corners, 23 May. Available at http://www.abc.net.au/4corners/ content/2005/s1372908.htm (accessed 22 June 2017).
Apel R and Paternoster R (2009) Understanding ‘criminogenic’ corporate culture: What white-collar crime research can learn from studies of the adolescent employment-crime relationship. In Simpson S and Weisburd D (eds) The Criminology of White Collar Crime: 15-33. New York: Springer.
Aquinas T (2003) On Evil (trans. Regan R). Davies B (ed.) introduction and notes. New York: Oxford University Press.
Aristotle (2004) The Nicomachean Ethics. London: Penguin.
Ashworth A (2013) Positive Obligations in Criminal Law. Oxford, England: Hart Publishing.
Beaton-Wells C and Fisse B (2011) Australian Cartel Regulation: Law, Policy and Practice in an International Context. Cambridge, England: Cambridge University Press.
Belcher A (2006) Imagining how a company thinks: What is corporate culture? Deakin Law Review 11(2): 1-21. DOI: 10.21153/dlr2006vol11no 2art234.
Clough J (2007) Bridging the theoretical gap: The search for a realist model of corporate criminal liability. Criminal Law Forum 18(3): 267-300. DOI: 10.1007/s10609-007-9040-y.
Clough J and Mulhern C (2002) The Prosecution of Corporations. Melbourne, Victoria: Oxford University Press.
Coffee J (1981) ‘No soul to damn: No body to kick’: An unscandalized inquiry into the problem of corporate punishment. Michigan Law Review 79(3): 386-459. DOI: 10.2307/1288201.
Colvin E (1995) Corporate personality and criminal liability. Criminal Law Forum 6(1): 1-44. DOI: 10.1007/BF01095717.
Cummins The Hon PC (Chair), Scott D and Scales W (2012) Report of the Protecting Victoria’s Vulnerable Children Inquiry. Melbourne, Victoria: Department of Premier and Cabinet, Victoria State Government. Available at http://www.childprotectioninquiry.vic.gov.au/report-pvvc-inquiry.html (accessed 22 June 2017).
Crofts P (2010) Brothels: Outlaws or citizens? International Journal of Law in Context 6(2): 151-166. DOI:10.1017/S1744552310000054.
Crofts P (2013a) Wickedness and Crime. London: Routledge.
Crofts P (2013b) Wickedness and Crime: Laws of Homicide and Malice. London and New York: Routledge.
Crofts P (2016) Legal irresponsibility and institutional responses to child sex abuse. Law in Context 34(2): 79-99.
Daly K (2014) Conceptualising responses to institutional abuse of children. Current Issues in Criminal Justice 26(1): 5-30. Available at https://www.griffith.edu.au/__data/assets/pdf_file/0005/637916/Daly-2014-PUBversion-Conceptualising-Responses-to-Inst.-Abuse-of-Chldrn-CICJvol26no1Jul2014_Daly_final.pdf (accessed 3 July 2017).
Death J (2015) Bad apples, bad barrel: Exploring institutional responses to child sexual abuse by Catholic clergy in Australia. International Journal for Crime, Justice and Social Democracy 4(2): 94-110. DOI: 10.5204/ijcjsd.v4i2.229
Doyle T and Rubino S (2003) Catholic clergy sexual abuse meets the civil law. Fordham Urban Law Journal 31(2): 549-616. Available at ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1888&context=ulj (accessed 3 July 2017).
Duster T (1970) The Legislation of Morality: Law, Drugs, and Moral Judgment. New York: Free Press.
Family and Community Development Committee (2013) Betrayal of Trust: Inquiry into the Handling of Child Abuse by Religious and Other Non-government Organisations. Melbourne, Victoria: Victorian State Government. Available at https://www.parliament.vic.gov.au/fcdc/article/1788 (accessed 22 June 2017).
Fisse B and Braithwaite J (1993) Corporations, Crime and Accountability. Cambridge, England: Cambridge University Press.
Fletcher G (1978) Rethinking Criminal Law Boston, Massachusetts: Little, Brown and Company.
Freiberg A, Donnelly H and Gelb K (2015) Sentencing for Child Sexual Abuse in Institutional Contexts. Sydney, New South Wales: Royal Commission into Institutional Responses to Child Sexual Abuse. Available at http://www.childabuseroyalcommission.gov.au/policy-and-research/our-research/published-research/sentencing-for-child-sexual-abuse-in-institutional (accessed 3 July 2017).
Garland D (1990) Punishment and Modern Society. Oxford, England: Clarendon Press.
Gilchrist G (2012) The expressive cost of corporate immunity. Hastings Law Journal 64(101): 1-56. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2046593 (accessed 3 July 2017).
Gleeson K (2016) Why the continuous failures in justice for Australian victims and survivors of Catholic clerical sexual abuse? Current Issues in Criminal Justice 28(2): 239-250. Available at http://www.austlii.edu.au/au/journals/CICrimJust/2016/27.html (accessed 3 June 2017).
Green P and Ward T (2004) State Crime: Governments, Violence and Corruption. London: Pluto Press.
Gunningham N (1987) Negotiated non-compliance: A case study of regulatory failure. Law and Policy 9(1): 69-95. DOI: 10.1111/j.1467-9930.1987.tb00398.x.
Hart JR H (1958) The aims of the criminal law. Law and Contemporary Problems 23(3): 401-441. Available at scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2758&context=lcpi (accessed 3 July 2017).
Hogg R (2013) Populism, law and order, and the crimes of the 1%. International Journal for Crime, Justice and Social Democracy 2(1): 113-131. DOI: 10.5204/ijcjsd.v2i1.96
Kahan D (1998) Social meaning and the economic analysis of crime. Journal of Legal Studies 27(2): 609-622. DOI: 10.1086/468037.
Korsell L (2010) Big stick, little stick: Strategies for controlling and combating environmental crime. Journal of Scandinavian Studies in Criminology and Crime Prevention 2(2): 127-148. DOI: 10.1080/140438501753737615.
Manderson D (1993) From Mr Sin to Mr Big. Melbourne, Victoria: Melbourne University Press.
Matthews B (2014) Mandatory Reporting Laws for Child Sexual Abuse in Australia: A Legislative History. Sydney, New South Wales: Royal Commission into Institutional Responses to Child Sexual Abuse. Available at http://www.childabuseroyalcommission.gov.au/documents/published-research/royal-commission-report-ben-mathews-for-rc-publica (accessed 3 July 2017).
Matthews B (2017) Oversight and Regulatory Mechanisms Aimed at Protecting Children from Sexual Abuse: Understanding Current Evidence of Efficacy. Sydney, New South Wales: Royal Commission into Institutional Responses to Child Sexual Abuse. Available at http://www.childabuseroyalcommission.gov.au/policy-and-research/our-research/published-research/oversight-and-regulatory-mechanisms-aimed-at-prote (accessed 3 July 2017).
Midgley M (1984/2001) Wickedness: A Philosophical Essay. London: Routledge and Kegan Paul.
Organisation for Economic Co-Operation and Development (OECD) (2010) Good Practice Guidance on Internal Controls, Ethics and Compliance. Available at https://www.oecd.org/daf/anti-bribery/44884389.pdf (accessed 3 July 2017).
Palmer D (2012) Normal Organizational Wrongdoing: A Critical Analysis of Theories of Misconduct by and in Organizations. Oxford, England: Oxford University Press.
Palmer D and Morre C (2016) Social networks and organisational wrongdoing. In: Palmer D, Smith-Crowe K and Greenwood R (eds) Organizational Wrongdoing: Key Perspectives and New Directions: 203-230. Cambridge, England: Cambridge University Press.
Parker C (2004) Restorative justice in business regulation? The Australian competition and consumer commission’s use of enforceable undertakings. Modern Law Review 67(2): 209-246. DOI: 10.1111/j.1468-2230.2004.00484.x.
Royal Commission into Institutional Responses to Child Sexual Abuse (2014a) Public Hearing – Case Study No. 16: The Melbourne Response. Sydney, New South Wales: Commonwealth of Australia. Available at http://www.childabuseroyalcommission.gov.au/case-study/791fd480-ba30-45bc-ba79-cbad85f27023/case-study-16,-august-2014,-melbourne (accessed 3 July 2017).
Royal Commission into Institutional Responses to Child Sexual Abuse (2014b) Terms of Reference: Letters Patent. Sydney, New South Wales: Commonwealth of Australia. Available at http://childabuseroyalcommission.gov.au/about-us/terms-of-reference (accessed 22 June 2017).
Royal Commission into Institutional Responses to Child Sexual Abuse (2015a) Report of Case Study No. 6: The Response of a Primary Scholl and the Toowoomba Catholic Education Office to the Conduct of Gerard Byrnes. Sydney, New South Wales: Commonwealth of Australia. Available at http://www.childabuseroyalcommission.gov.au/getattachment/8196990f-2646-49e9-95dc-304a85a036ad/Report-of-Case-Study-no-6 (accessed 22 June 2017).
Royal Commission into Institutional Responses to Child Sexual Abuse (2015b) Report of Case Study Number 12: The Response of an Independent School in Perth to Concerns Raised about the Conduct of a Teacher between 1999 and 2009. Available at https://www.childabuseroyalcommission.gov.au/getattachment/ef4f35e9-1e57-4c72-8846-7de6e1365d81/Report-of-Case-Study-No-12 (accessed 22 June 2017).
Royal Commission into Institutional Responses to Child Sexual Abuse (2016a) Consultation Paper: Criminal Justice. Sydney, New South Wales: Commonwealth of Australia. Available at http://www.childabuseroyalcommission.gov.au/getattachment/a445c7b0-f5dc-4c88-80c6-0acd6a6fc375/Consultation-paper (accessed 22 June 2017).
Royal Commission into Institutional Responses to Child Sexual Abuse (2016b) Creating Child Safe Institutions. Sydney, New South Wales: Commonwealth of Australia. Available at https://www.childabuseroyalcommission.gov.au/getattachment/5d0dc659-68c2-46f9-847b-fafd52f58673/Creating-child-safe-institutions (accessed 22 June 2017).
Royal Commission into Institutional Responses to Child Sexual Abuse (2016c) Report of Case Study No. 23: The Response of Knox Grammar School and the Uniting Church of Australia to Allegations of Child Sexual Abuse at Knox Grammar School in Wahroonga, New South Wales. Sydney, New South Wales: Commonwealth of Australia. Available at http://www.childabuseroyalcommission.gov.au/getattachment/599fb1cb-6d5b-432e-8573-126cae4ee5e3/Report-of-Case-Study-No-23 (accessed 22 June 2017).
Senate Legal and Constitutional Legislation Committee (c.1994) Criminal Code Bill 1994 and Crimes amendment Bill 1994: Report. Canberra, ACT: Australian Parliament . Available at http://trove.nla.gov.au/work/31634056?q&versionId=44305064+46410423+50799451+221226084 (accessed 22 June 2017).
Smith K (1991) A Modern Treatise on the Law of Criminal Complicity. Oxford, England: Clarendon Press.
Stychin C (1995) Law’s Desire: Sexuality and the Limits of Justice. London: Routledge.
Swain S (2014) History of Australian Inquiries Reviewing Institutions Providing Care for Children. Sydney, New South Wales: Royal Commission into Institutional Responses to Child Sexual Abuse. Available at https://www.childabuseroyalcommission.gov.au/getattachment/8aafa21e-36e0-41c2-8760-b17662fb774f/History-of-Australian-inquiries-reviewing-institut (accessed 3 July 2017).
Tombs S and Whyte D (2014) The Corporate Criminal: Why Corporations Must be Abolished. New York: Routledge.
United States Sentencing Commission (2004) United States Sentencing Commission: Guidelines Manual. Washington, DC: Office of Public Affairs, US Government. Available at http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2004/manual/gl2004.pdf (accessed 22 June 2017).
Valentine K, Katz I, Smyth C, Bent C, Rinaldis S, Wade C and Albers B (2016) Key Elements of Child Safe Organisations: Research Study. Sydney, New South Wales: Royal Commission into Institutional Responses to Child Sexual Abuse. Available at http://www.childabuseroyalcommission.gov.au/getattachment/c4d9e5e7-47d6-4583-a1b9-71c39f37a578/Key-Elements-of-Child-Safe-Organisations (accessed 3 July 2017).
Veitch S (2007) Law and Irresponsibility: On the Legitimation of Human Suffering. New York: Routledge.
Weissman A and Newman D (2007) Rethinking criminal corporate liability. Indiana Law Journal 82(2): 411-451. Available at http://www.repository.law.indiana.edu/ilj/vol82/iss2/5/ (accessed 3 July 2017).
Wells C (2001) Corporate criminal liability: Developments in Europe and beyond. Law Society Journal 39(7): 62-65.
Wells C (2010) Corporate crime: opening the eyes of the sentry. Legal Studies 30(3): 370-390. DOI: 10.1111/j.1748-121X.2010.00158.x.
Wells C (2014) Corporate responsibility and compliance programs in the United Kingdom. In Manacorda S (ed.) Preventing Corporate Corruption. Switzerland: Springer International Publishing.
Woolf T (1997) The Criminal Code Act 1995 (Cth): Towards a realist
vision of corporate criminal liability. Criminal Law Journal 21(5):
257-272
Cases
Canadian Dredge & Dock Co v R [1985]
1 SCR 662 at 693.
Hamilton v Whitehead [1988] HCA 65; 166 CLR 121, 127.
Meridian Global Funds Management Asia Limited v Securities Commission
[1995] UKPC 5; [1995] 3 All ER 918.
Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1; 1972 App
Cas 153, 170.
Tesco v Nattrass [1971] UKHL 1; [1972] AC
153.
Legislative material
Bribery Act 2010
(UK)
Care and Protection of Children Act 2007 (NT)
Children
and Young People Act 2008 (ACT)
Children Legislation Amendment (Wood
Inquiry Recommendations) Act 2009 No 13 (NSW)
Children, Youth and
Families Act 2005 (Vic)
Competition and Consumer Act 2010
(Cth)
Corporations Act 2001 (Cth)
Crimes Act 1900
(NSW)
Crimes Act 1958 (Vic)
Crimes Amendment Bill
1994
Criminal Code 1995 (Cth)
Criminal Code Bill 1994
[1] Many thanks to Yolanda Thomas
for her excellent research
assistance.
[2] For further
information refer to the Royal Commission website: https://www.childabuseroyalcommission.gov.au/.
[3] The United Kingdom is
currently undertaking an Independent Inquiry into Child Sexual Abuse (see https://www.iicsa.org.uk/).
[4] The Herald of Free
Enterprise was a ferry that capsized soon after leaving the Belgian port of
Zeebrugge in 1987. The official inquiry found the sinking was caused
by a
failure to close the bow doors and the failure to check if the doors were
closed. The Southall rail crash occurred in 1997 at
Southall after a high speed
train failed to stop at a red signal and collided with a freight train crossing
its path. The incident
resulted in seven deaths and 139 injuries.
[5] These general principles have
been adopted in Australia (see Hamilton v Whitehead [1988] HCA 65; 166 CLR 121,
127).
[6] For examples
of judicial criticisms of identification theory, see Lord Hoffman, Privy Council
in Meridian Global Funds Management Asia Limited v Securities Commission
[1995] UKPC 5; [1995] 3 All ER 918; Justice Estey, Canadian Dredge & Dock Co v R
[1985] 1 SCR 662 at 693. Dr Paterson’s role as Headmaster at Knox
Grammar School provides an example where identification theory would work.
Power
and knowledge were centralised in Dr Paterson. He knew about allegations of
child sexual abuse ranging across time at Knox
Grammar and chose not report
these allegations to regulators or the police. When police were investigating
one report, he did not
apprise the officer of other reports that he knew were
relevant (Royal Commission 2016c)
[7] The experience of staff at the
school in Report No. 12 (Royal Commission 2015b) was different from other
organisations. At that school
the staff communicated with each other about their
concerns. In contrast, according to Report No. 6 (Royal Commission 2015a), staff
did not communicate their concerns with each other as much, and the lack of
systemic understanding of the complaints was due in part
to staff expressing
their concerns to different members of upper management who then did not inform
each other (Crofts 2016).
[8] NSW
has created the offence of concealing a serious indictable offence under s 316
Crimes Act 1900 (NSW). This offence has been used to prosecute the
concealment of serious crimes such as murder and manslaughter, but has rarely
been used to prosecute concealment of child sexual abuse offences. In 2014,
Victoria has created the offence of failure to disclose
a child sexual offence
under s 327(2) of the Crimes Act 1958 (Vic). The Royal Commission
received evidence that, as of April 2016, there were three matters of failing to
report that had been
recorded since the offence commenced (Royal Commission
2016a: 231).
[9] Only three priests
have been charged with the offence of concealing sex offences in Australia.
[10] In four jurisdictions the
reporter must have a ‘belief on reasonable grounds’, and in four
other jurisdictions the reporter
‘suspects on reasonable
grounds’.
[11] For example,
the Australian Capital Territory currently imposes a maximum penalty of $5,500
and/or imprisonment for a maximum of
6 months (Children and Young People Act
2008 (ACT)). The Northern Territory imposes a $26,000 penalty (Care and
Protection of Children Act 2007 (NT)). Victoria previously imposed a penalty
of $1408 (Children, Youth and Families Act 2005 (Vic)). NSW originally
provided a penalty but this was omitted after the Wood Inquiry recommendations
and legislation in 2009 (Children Legislation Amendment
(Wood
Inquiry Recommendations) Act 2009 No 13
(NSW)).
[12] Although, as I argue
below, whether civil or criminal, there appears to be lack of enforcement of
these offences. See, for example,
the ‘Cummins Inquiry’, the
Report of the Protecting Victoria’s Vulnerable Children Inquiry
(Cummins et al. 2012), which noted the lack of application and enforcement of
the existing ‘Offence to fail to protect child
from harm’
(Children, Youth and Families Act 2005 (Vic) s 493).
[13] In regard to the Catholic
Church specifically, the Family and Community Development Committee (2013) found
that rather than being
instrumental in exposing the criminal abuse of children
and the extent of the problem, senior leaders of the Church:
Royal Commission (2016c) provides an example where the former
Headmaster Dr Ian Paterson would have been appropriately charged with
mandatory
reporting offences. However, the Case Study also provides an example of systemic
failure to educate teachers to recognize
and report grooming behaviours.
[14] This article focuses on
institutional failure to respond to child sexual abuse. Palmer et al. (2016)
have also undertaken analysis
of the culture of ‘total institutions’
and how these may militate against reporting and preventing child sexual abuse
in institutions.
[15] Evidence
of Hon Chief Justice Gleeson, excerpted in Senate Legal and Constitutional
Legislation Committee (c. 1994: 31). For an analysis
of responsibility for
omissions in criminal legal doctrine, see Ashworth (2013).
[17]
In contrast, in the YMCA there were too many policies and principles. Staff did
not know about the policies and they were not enforced
by
management.
[18] See also the
United States Sentencing Commission (2004: Ch. 8B2.1) which details the criteria
that should be used to judge a corporate compliance
program.
[19] For example, both
Duster (1970) and Manderson (1993) have undertaken analysis of drug laws in
different jurisdictions and have argued
that a change in the legal status of
drug laws leads people to think of an activity as immoral even though they had
not thought so
previously. Immoral connotations in relation to illicit drugs
developed through a process of social stigmatisation of drug users,
by shifting
from regulation by the free market to doctors and then to police and criminal
justice agencies. The intersection of law
and morality has also been argued in
relation to the production of sexual identities. See, for example, Crofts
(2010); Stychin (1995).
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/UTSLRS/2017/18.html