To guide child protection workers in responding to young people with whom the Department of Communities (the Department) has a role, who are, or may become, sexually active.
In Western Australia, section 321 of the the Criminal Code Act Compilation Act 1913 (the Criminal Code) stipulates that the age of consent for sex is 16 years. The age of consent refers to the age that an individual is considered capable of legally providing informed consent to sexual interactions with another person. Under the Criminal Code, children under 16 years of age are considered to not have the emotional maturity to consent to sexual activities.
Children 13 years or younger are considered incapable of consenting to sex (s.319(2)(c) of the Criminal Code) and those accused of engaging in sexual behaviour with a child 13 years or younger cannot use the defences available under the Criminal Code (s.321(9-10)).
Consent is where a person freely and voluntarily agrees to engage in sexual activities and this consent is not obtained by force, threat, intimidation, deception or fraud. Consent also requires that both parties are aware of the possible consequences of the sexual relationship, and are intellectually able and not drunk or drugged.
To determine if child sexual abuse has occurred, you should assess the children’s respective ages, developmental levels and the nature of the relationship. Sexual activities between young people are not considered as sexual abuse unless:
Where you identify that a child or young person may have been sexually abused or is likely to be, you must undertake the steps outlined in the Chapter 2.2 entries: Conducting and Child Safety Investigation and Child sexual abuse.
If you are concerned that the child has been sexually abused you must conduct a Child Safety Investigation - refer to Chapter 2.2 Conducting a Child Safety Investigation within the Signs of Safety Child Protection Practice Framework.
If the child is in the CEO's care, or we one we have contact with is engaging in sexual activities, consider the following factors to assist in determining whether the child may be sexually abused:
Talking about sexual issues with a child is a sensitive matter and best undertaken by someone who has a trusting relationship with the child.
You need to determine the extent of the child's sexual knowledge and behaviour. There are sometimes challenges in having these discussions with the child and you should discuss any concerns with your team leader as part of case practice supervision.
You should also explain to the child our responsibility to advise the WA Police if there is reasonable belief that a criminal act has occurred or is occurring in relation to the sexual activity.
Where it is believed that sexual activities pose a risk to the child’s wellbeing, you must discuss this with your team leader and, if appropriate, at care planning meetings. Where possible, you should inform the child that concerns regarding their sexual activity will be discussed before the meeting.
Where you have discussed the legal issue of consent with the child and the child still intends to be sexually active, you must provide information about:
Information should be provided in various ways, including:
You should also refer children to the Department of Health Get the Facts website which provides advice and accurate information for young people in WA on relationships and safer sex.
When you discuss sexual activities and behaviours with the child, you must maintain appropriate professional boundaries and be mindful of potential accusations that can be made by the child.
Use the following strategies to minimise the opportunity for false accusations:
Based on the assessment of the child's circumstances and through discussion with the child, you must decide on the most appropriate course of action or referral, or whether you need to pursue an action or referral. Record this information on the child's case file. Refer to Chapter 2.2: Child sexual abuse.