Spotting the difference between flirtatious behaviour and criminal sexual conduct at work

- Tuesday, October 15, 2013

What is “sexting”?

“Sexting”, (the creation, possession and transmission of sexually suggestive or explicit messages or images), is all the rage with seemingly even the most conservative of your employees potentially drawn into seductive messaging over their phones.

However, employers who employ young people may need to consider the potential criminal ramifications when they are handling sexual harassment complaints or managing inter employee relationships.

Across Australia, the general age of consent for sexual activity is 16 years old, in some circumstances, and in relation to child pornography, that age is 18.

Grooming, which could include “sexting”, is behaviour that might be viewed as just flirting between colleagues, but may actually mask predatory sexual activity that constitutes a serious risk to employers and young employees.

If you employ young people or children under the age of 18, or have children in your workplace, you might want to watch out for potential grooming behaviour or child pornography offenses, to keep these young people safe.

With the everyday use of mobile devices to communicate, and with ready access to photo apps, the temptation for young people to send off a suggestive image, seems too great for some.

However the definition of child pornography incorporates material that depicts a person who is, or appears to be, under 18 years old in any images of sexual organs, including breasts in a sexual pose or sexual activity.

An offence can also be committed, for example, if a 19-year-old texts an image of her naked breasts to her boyfriend, where the girl’s 16-year-old sister sits next to her.

The criminal law relating to “sexting” was reviewed in 2012 by the Victorian Law reform committee.

This review considered the application of recently introduced Commonwealth legislation into the use of carriage devices (phone and computers, tablets etc.) to send or possess child pornography.  Similar legislation exists in each state making it a crime to use a carriage device to send or possess pornographic images or for the purpose of grooming.

What is grooming?

Grooming is used to describe any behaviour used by an adult for the purpose of developing a sexual relationship or engaging in sexual acts with, or in the presence of a child, or other children.

Typical behaviour includes giving special gifts or paying undue attention to a child or young person. This behaviour doesn't need to happen whilst the two are in each other's company; Facebook, chat rooms and email all are fertile ground for flirtatious behaviour and the gentle introduction of sexual conversations – “sexting”.

If two young people are close in age, but straddle the adult/child legal definition with no special relationship, there may be less concern for such conduct where both parties appear to consent. But employers and parents should be aware of possible criminal and manipulative nature of this behaviour.

Where the age gap widens, where the adult repeats the behaviour with a number of children, or there is a special relationship at play, the conduct has serious criminal ramifications: the criminal charges of grooming can result in 15 years imprisonment!

How can grooming affect you?

If your workplace deals with children’s issues, you will be familiar with the issue of grooming, but have you considered that employees could be guilty of grooming other staff members, not just the children they are employed to look after?

Grooming can be committed by any adult against any person under the age of 16 years, 18 if there is a special relationship between the two such as teacher/ pupil, client/counselor, manager/trainee etc.

**In August this year, the NSW ombudsman updated the definitions of reportable conduct (conduct reportable to the Ombudsman where the offender is in child-related employment).



 

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