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Constitutional Validity of Child Sex Abuse and Consequences for Cover Ups Acts

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Added on  2019-09-23

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This article discusses the constitutional validity of Child Sex Abuse and Consequences for Cover Ups Acts. It highlights the policy objectives, recommendations of the Royal Commission, and the impact of institutional cover-ups on the mental health of victims. The article also suggests necessary caveats in the law.
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IntroductionThe Commonwealth Government felt an imperative need to look into the matter as theInstitutional responses to Child Sex Abuse were appalling. The Royal Commission1 refer to aform of public enquiry which are temporary bodies being appointed by the executive governmentin order to the proper investigation of the issues that come up in the societies. A detailed reporthas to be formed by them at the end of the thorough investigation. These royal commissions areformed on the basis of specific legislation. The present scenario talks about the evidence given by the Royal Commission on the basis ofwhich the Commonwealth Government formed a view that the cover up of child sex abuse is amatter of national crisis and shame on the part of certain institutions. These institutions2 includeschools, churches, charities, orphanages, sporting associations and other government bodies. The report presented by the Commonwealth Treasury highlights that an extreme emotional andpsychological trauma is being experienced by the surviving victims of child sex abuse after theincident. It also underlines the fact that a majority of such victims take their own lives and due towhich a significant reduction in the productivity of the Australian workforce is taking place. Thisin turn is negatively impacting the Australian economy. The estimated loss of economic cost toAustralian economy comes out to be a whopping $100 million a year. Which is why, theCommonwealth Government believes that this emotional and psychological trauma experiencedby the victims could be assuaged if these institutions are made to face the harsh punishments.Consequently, this will effectively reduce losses in workforce productivity. 1 C. Smart, "A History Of Ambivalence And Conflict In The Discursive Construction Of The 'Child Victim' Of Sexual Abuse" (1999) 8 Social & Legal Studies.2 Hayley Boxall, Adam M Tomison and Shann Hulme, Historical Review Of Sexual Offence And Child Sexual Abuse Legislation In Australia (Australian Institute of Criminology, 2014).
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1.Constitutional validity of Child Sex Abuse (Justice for Survivors) Act 20163The law enacted by The Commonwealth Parliament for the survivors of child sex abuse is one ofthe important milestones as it was a growing demand on the part of Government and generalpublic at large - that this menace of prevalent cover up of child sex abuse by certainaforementioned institutions should be seriously looked into. As a matter of fact, in most of thecases regarding the child sex abuse, there are only two primary witnesses – the child and thealleged perpetrator. When it comes to producing the children in the courts as witnesses, thewhole process is deemed to be laced with potential constraints. It is in the domain of the courts totake cognizance as to how should they safeguard the child witnesses such as by putting curtainsbetween the child and the accused as well as providing a remote video conferencing technologyfor the child witness. Also, in the event of a child abuse, there may or may not be theappearances of physical assaults and sometimes the physical marks are not consistent with theperpetrated assaults. The DNA evidences are seldom presented as well. In addition to that, thechild with a particular age, probably does not fully use the proper context so that he couldeffectively report what actually happened with him or her. But most important of all, thesituation becomes extremely complicated for the child when the response he/she gets by theabove mentioned institutions that are otherwise meant for their well-being get involve in theshameful cover up exercise.The recommendations of Royal Commission can go a long way in forming the legislationregarding the justice for the survivors in child sex abuse. When a child undergoes violent sexualphysical assault especially on a continuous basis particularly in an institutional context, where a3 Shurlee Swain, History Of Child Protection Legislation ([Royal Commission into Institutional Responses to Child Sexual Abuse], 2014).
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concerned authority has a deep influence in the child’s life, then the situation becomes grave ifthe child’s concern remains unheard. If this institutional hierarchy behaves as a protector of suchoffenders and try to put things under the carpet and tend to punish the child instead of punishingthe perpetrator, then the trauma and the pain generates a considerable psychological discomfortthereby preventing the child from reporting the incident as a well as initiating a legal action eveninto adulthood. It is also a fact which was understood by lawmakers that the Parliament was not restricted by theTerms of Reference applied by the findings of Royal Commission to all the victims of the childabuse. The different communities also had a profound expectation that all of the possible unjustbarriers to the right of access to court of law be removed rather than the mere removal of timelimits. It was also noted that The United Nations Charter on Human Rights along with theDeclaration on the Rule of Law were of immense help to apply equality of access to justice as abasic human right necessary for the survivors of the child sex abuse. There were a number ofbodies that were instrumental in conveying community expectations regarding the limitation ofactions on the institutions. The NGOs, experts and some of the concerned legal bodies4 in thefield of prevention of child abuse extensively confronted with the core problems and the impactof child abuse on a day to day basis. These representatives echoed and showed a soundunderstanding regarding requisite solutions by being in constant touch with the survivors of childabuse to be aware of their needs and wishes. These concerned stakeholders came up with certain key reform elements that could go a longway to allow equality of access to the law and effective dispensation of the justice for them.These elements are:4 David Finkelhor, "Current Information On The Scope And Nature Of Child Sexual Abuse" (1994) 4 The Future of Children.
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