SA Notifying the Police of Non-consensual Sex - Am I Liable?

Discussion in 'Criminal Law Forum' started by DadyO, 30 October 2018.

Tags:
  1. DadyO

    DadyO Well-Known Member

    Joined:
    9 July 2014
    Messages:
    31
    Likes Received:
    0
    Hi,

    It has come to my attention that a 15-year-old boy had non-consensual sex (rape) with a 15-year-old girl several months ago.

    I want to get the girl to contact the school councilor. Due to her family issues I don't want to go to the mother if I can avoid it. I have been told she just wants to move on but I feel this should not be just left at that for many obvious reasons.

    I primary question is am I criminally liable if I fail to notify the police, now that I know?
     
  2. Scruff

    Scruff Well-Known Member

    Joined:
    25 July 2018
    Messages:
    65
    Likes Received:
    1
    Depends on the law in your state. In NSW for example, any offence with a maximum penalty of 5 years or more is called a "serious indictable offence", and the vast majority (maybe even all) sexual offences fall into that category.

    Under the NSW Crimes Act, it is an offence (punishable by imprisonment) to fail to report information that could lead to the apprehension or conviction of a person for a serious indictable offence unless you have reasonable cause for not doing so.

    So in NSW, the answer to this kind of question basically depends on what the penalty is for the offence that has been committed. You'll need to check SA legislation or maybe someone here from SA may be able to clarify for you.

    Personally, if I had any suspicion at all that it was actually rape, then I'd report it - regardless of any requirement to do so.
     
    Stop hovering to collapse... Click to collapse... Hover to expand... Click to expand...
  3. DadyO

    DadyO Well-Known Member

    Joined:
    9 July 2014
    Messages:
    31
    Likes Received:
    0
    Thanks but as you probably know life is not that simple, and to toss the victim into the legal mincer against their will is not an easy one.
     
  4. Scruff

    Scruff Well-Known Member

    Joined:
    25 July 2018
    Messages:
    65
    Likes Received:
    1
    You are absolutely correct. Unfortunately though, you can't only consider the victim here - you also need to consider the perpetrator. The fact is that once a person gets away with this kind of thing once, there is a very high chance that they will do it again.

    It's admirable that you put the one known victim first, but in my view, it is the unknown potential future victims that must come first with kind of crime. Maybe it's just me, but considering that the victim is under age (as is the perpetrator but his age is irrelevant really), the decision as to whether or not to report it should be obvious.

    Some people may think that I'm not considering the victim at all. To that, I say "What if you don't report it, and it does happen again?" What do YOU say to that new victim? Can you live with the fact that you could have prevented it and did nothing?

    It's a lot to consider, but the chance of this happening again is a lot higher than the chance of it not happening again.
     
    Stop hovering to collapse... Click to collapse... Hover to expand... Click to expand...
  5. Scruff

    Scruff Well-Known Member

    Joined:
    25 July 2018
    Messages:
    65
    Likes Received:
    1
    I've done some digging around and found some info (and didn't find some other info).

    1. I can't find anything for SA that is the equivalent of NSW's "Concealing a serious indictable offence", however it is possible that failing to report could be covered under section 241 of the SA Criminal Law Consolidation Act 1935, which is "Impeding investigation of offences or assisting offenders". Section 241(1) states:
    Whilst this offence is aimed at people who intentionally help offenders, it is obvious that a side effect of not reporting an offence would "assist the principal offender to escape apprehension or prosecution". It is therefore possible that section 241 could apply - it's a bit of a grey area. (It's sort of along the lines of whether or not hindering an active Police investigation constitutes perverting the course of justice. I don't think the arguments on that subject will ever end.)
    The maximum penalty varies - it's basically scaled according to the maximum for the offence committed by the principal offender. In this case, rape carries a life sentence, which puts the penalty for section 241 into the highest category, which is 10 years. But like I said, this offence is really aimed at people who directly help offenders. Failing to report may not fall into that category even if helping the offender is a side effect.

    2. I haven't specifically looked into this one, but most states now have laws that require people in certain professions to report situations of children at risk. It's possible that this would include incidents involving two minors. If SA has such a law and you are in one of those professions and came by this knowledge during the course of that profession, then it could be an offence not to report it.

    3. Finally, here's the info relating to the incident itself and how serious it is.
    In SA, the offence of "Rape" is section 48 of the SA Criminal Law Consolidation Act 1935. There is no restriction on age for either the victim or offender - it is stricly a matter of consent or no consent. The maximum penalty is life imprsionment.
    If you take away the issue of consent, then there is section 49 "Unlawful sexual intercourse" - which is sexual intercourse with any person under the age of 17. The maximum penalty is 10 years imprisonment, or life imprisonment for sexual intercourse with any person under the age of 14.

    I know you have a tough decision to make, so I hope this information is helpful in some way. I guess no matter how you look at it, there's a down side either way.
     
    Stop hovering to collapse... Click to collapse... Hover to expand... Click to expand...
  6. DadyO

    DadyO Well-Known Member

    Joined:
    9 July 2014
    Messages:
    31
    Likes Received:
    0
    Thanks Scruff
    Thanks very much for you reply.
    Yes you pretty much are right on my situation and I have considered what you have said already. It is also exasperated by the fact that I am once removed from the victim and have no knowledge of the perpetrator.
    I am trying to feed these argument back to the victim and am also trying to get them to contact kids help line.
     
  7. Scruff

    Scruff Well-Known Member

    Joined:
    25 July 2018
    Messages:
    65
    Likes Received:
    1
    It sounds like you personally know the girl and are even possibly related to her. If that's the case, then you are in a position to provide some good support and advice. Here's a few things to consider, both in relation to reporting and not reporting (in no particular order):

    1. She is in a position to possibly prevent this from happening to somebody else. I know that sounds blunt and possibly even harsh when stated up front like that, but it is a reality that all involved need to accept. With that said however, no-one should feel compelled into taking action solely for that reason. There are too many other things to consider.

    2. If the matter is reported, she will have to give a very detailed statement to the Police. If the boy is charged and pleads not guilty, then she will also most likely have to give detailed evidence in a court or possibly (hopefully) via video link. This will all be very daunting and extremely difficult, especially for a 15 year old girl. It's important to remember that there is plenty of help available - but she does need to seek out that help, it won't just come knocking at the door. It's best to get this help beforehand to ensure that she is emotionally up to it and also prepared for the legal processes that will follow. A good counselor can not only provide the emotional help, but can also usually provide a wealth of information about the legal process and the emotional impact of taking action.

    3. Regardless of whether or not the matter is reported (but especially if it is), it is most important that she has a strong support base around her (definitely family and possibly close friends). If it is reported, she will definitely need this, especially if she does end up having to testify. Without it, there's a good chance that she will eventually crash, especially at that age.

    4. If the matter is reported, be prepared for all possible outcomes. I can't tell you how important this is. A conviction is never guaranteed, so she needs to know going in that she can cope with an acquittal if that's how it plays out. Obviously no-one wants to consider this, but you all really should because it is always a possibility. Being prepared for the worst will ensure that she can cope with it, and will make a victory all the more sweeter. Don't ever be negative - just prepared. This part is all about emotional strength - not only hers, but her support base as well. Make the decision now, that once it's over, you are all going to walk away without regrets - no matter the result. Knowing this now, makes everything much easier later on if need be.

    5. If the matter is not reported, she will most likely regret it later on in life - whether it be 6 months from now or 20 years from now. Wanting to move on is admirable and in itself, shows a certain strength and resolve. But it won't make it go away. What happened, happened; and it will stay with her - it's not something you just "forget". You therefore need to consider future regret and weigh up acting now versus acting later. The longer you wait, the more diminished the chances of success.

    It's all about support and her own emotional strength - and that strength will grow with the right support around her, especially from family. With the right support she will get through this regardless of whether or not any action is taken. Without it, there's a good chance that she won't.

    Finally, before anything else, it is very important that she speak to a rape counselor. Even with family and friends, it is rare that anyone fully understands the impact that something like this really has unless they've been through something similar themselves, and that can make it very difficult for the victim to fully open up and get the help that they need specific to their situation. No matter what happens from here, her chances of getting through this are greatly improved if sees a counselor as early as possible, so I would recommend that you make this your first priority.
     
    Stop hovering to collapse... Click to collapse... Hover to expand... Click to expand...
Loading...

Share This Page

Loading...
gt;