Grooming and Sexual Misconduct Defined | WISE Workplace

The NSW Ombudsman Child Protection in the Workplace Guidelines 2004 (the guidelines) provides definitions for the behaviours that are considered to be "reportable conduct" under section 25A of the Ombudsman Act 1974 (the act).  

Included in the sexual offences category is sexual misconduct. Sexual misconduct was defined in the guidelines as "a term used to describe a range of behaviours or a pattern of behaviour aimed at the involvement of children in sexual acts". Included in that category was those behaviours considered to be "grooming behaviour" or "patterns of behaviour aimed at engaging or 'grooming' a child as a precursor to sexual assault". This definition has now changed as per the NSW Ombudsman Practice Guidelines 2/2010 "Reportable conduct: sexual offences and sexual misconduct".

The previous definition required that investigators fulfil two elements: 

1. Has the employee engaged in a pattern and /or range of behaviours toward a child and/or class/group of children and , if so, 
2. is that behaviour either aimed at the engagement and/or the involvement of a child/children in sexual acts (or for an inappropriate sexual purpose). 

The second component of the definition or "proof" of sexual misconduct was the most difficult in matters involving grooming allegations. 

Sometimes the sexual element can be readily established. For example in a recent investigation email, chat, twitter and face book communications between a teacher and a student were discovered that showed that the teacher was in a close and personal relationship with the student. There were emails by the teacher with declarations of "love" etc and promises that he would wait for the student to leave school before making public their relationship. in those matters, it is considered that the sexual element can be established via examination of that electronic communication. In another matter, a teacher had a sexual relationship with a student very soon after that student had left school and had turned 18 years. After the relationship was declared and made public, an allegation was made that the teacher had engaged in sexual misconduct whilst the student had still been at the school and under 18 years. The investigation showed that the teacher had engaged in a pattern of behaviour toward that student and as the teacher was currently involved in a sexual relationship with that student supported that that pattern had been for the involvement of the student in sexual acts. 

If the employees behaviour showed element that are tinged with seuxal and /or intimate connotations e.g. by physical touching, language used or the child  being exposed to inappropriate sexual materials then the "sexual element" can be established. The problem for investigators was when the employee's pattern of behaviour did not exhibit any of those elements yet the pattern of behvaiour did present a risk that: 

1. intentional grooming was in it's early stages or 
2. the employees methods of grooming were subtle and innocuouse or,
3. an employee's environment and employment situation with a particular child  made that emplyee vulnerable that child sexual abuse may occure though there is no evidence that it has occurred and /or that the employee has intended for that to ultimatley occur. 

Misconduct that may involve reportable conduct
Employee's patterns of behaviour that have come under notice as being of "concern" and a "risk" to a child/children (without any sexual element) have been previously notified by agencies to the NSW Ombudsman under the catagory known as allegaitons of "misconduct that may involve reportabel conduct" as opposed to sexual misconduct/grooming. The guidelines state that that category can be "used where the initial information suggests that the allegation may be part of a pattern of behaviour which may indicate misconduct which poses significant risk to children". If an allegation of "misconduct that may involve reportable conduct" is made and investigated and a "sexual element" cannot be established, the investigator was restricted to the finding of "not reportable conduct" and result in no report being submitted to the Commission for Children and Young People (CCYP). 

New definition
The new definition removes the need to prove a sexual component to the grooming  behaviour. 

"Sexual misconduct includes behaviour that can reasonably be construed as involving an inappropriate and overly personal and intimate:

  • relationship with;
  • conduct towards; or
  • focus on;
a child or young person, or a group of children or your persons"

The practice update (2/2010) goes on to explain that a single incident of behaviour that is "little more than 'poor judgement' "cannot be found to have engaged in sexual misconduct but "persistent less serious breaches of professional conduct or a single serious crossing of boundaries may constitute sexual misconduct".  

In all cases where a pattern of employee conduct is established during the "information gathering" stage of an investigation which on face value poses a risk that the employee is "grooming" a child/children, the investigator should no longer put that pattern of behaviour to an employee as 'misconduct that may involve reportable conduct' but as 'sexual misconduct'. The changes provide for earlier detection of grooming behaviour and, if 'sexual misconduct' is not found the report to the CCYP is 'not sustained - insufficient evidence' still resulting in a report to the CCYP and consideration on any future working with children checks of that employee.

Practice Update - NSW Ombudsman Reportable conduct: sexual offences and sexual misconduct 2010 Practice Update - NSW Ombudsman Reportable conduct: sexual offences and sexual misconduct 2010 (61 KB)