New Bill To Reform Child Safeguarding Laws

A new Bill removes the only statute of limitations that remained for any sexual offence, increases the penalty for incest, provides for a new requirement that the DNA profile of a person who is registered as a sex offender be kept on the register, allows for the prosecution of local residents who molest children overseas, and makes a number of other changes designed to help keep children safe.

Speaking in the Senate, the Attorney-General Kathy Lynn Simmons said, “As a Government and as a community, we are all concerned about the safeguarding of our children. This Government is committed to doing everything that we can to prevent the maltreatment of our children and to protect their right to grow and thrive in a safe environment. I am, therefore, pleased to introduce the Child Safeguarding [Miscellaneous Amendments] Bill 2019. This important Bill will help to usher in much needed reform to our child safeguarding regime.

Minister Kathy Lynn Simmons with members of Bermuda Government Child Safeguarding stakeholders

“An important component of this Bill is that it addresses the circumstances of child sexual abuse that could not be prosecuted due to jurisdictional issues. These usually entail evidence implicating local suspects having molested local children while overseas. Given the frequency of travel of our population to foreign jurisdictions, this issue is of particular concern. This Bill will amend the Criminal Code to allow prosecution in these particular circumstances.

“One of the barriers to the prosecution of sex offences is that they often go unreported because the child victim does not feel they can report it or has been coerced into not reporting it. Child victims find that decades later, when they are adults, the statute of limitations for the particular offence has run out. I am pleased to inform Senators, Madam President, that the Bill removes the only statute of limitations that remained for any sexual offence.

“The Bill amends the Criminal Code to create the specific offences of: prostituting children; recruiting a child into participating in pornographic performances or causing a child to participate in such performances; coercing a child into participating in pornographic performances or profiting from or otherwise exploiting a child for such purposes; and knowingly attending pornographic performances involving the participation of children.

“The Bill introduces a new requirement that the DNA profile of a person who is registered as a sex offender be kept on the register,” the Attorney-General said. “The Bill increases the penalty for incest as suggested by the Court of Appeal.

“With reference to gender neutrality with regard to offences against children, it is important to note that there are currently many criminal offences prescribed in law that can only be committed against a female child. That is to say, if the same acts were committed against a male child, they would not be prosecutable.

“This is a long-standing omission in our laws attributable to social values and perceptions that pertained at the time these laws were enacted which are not in alignment with current realities and sensibilities. The Bill ensures equal protection under the law for all children with increased penalties for the offenders.

“I have no doubt that the Bill will provide Bermuda with the tools to ensure that we are among the most progressive nations in the world pertaining to our child protection regime. These measures attest to the value we place on our children and our appreciation that their proper development is indispensable to the future of our society.”

The Attorney General’s full statement follows below:

Madam President, as stated in the 2006 UN Global Study on Violence Against Children, “No violence against children is justifiable; all violence against children is preventable.”

Madam President, as a Government and as a community, we are all concerned about the safeguarding of our children. This Government is committed to doing everything that we can to prevent the maltreatment of our children and to protect their right to grow and thrive in a safe environment.

Madam President, I am, therefore, pleased to introduce the Child Safeguarding [Miscellaneous Amendments] Bill 2019. This important Bill will help to usher in much needed reform to our child safeguarding regime. The Bill amends the Criminal Code Act 1907, the Children Act 1998, the Young Offenders Act 1950, the Evidence Act 1905, the Education Act 1996 and the Proceeds of Crime Act 1997 to enhance provisions and measures for the protection of children and other persons from sexual exploitation and sexual abuse. In particular, the Bill aims to:

• prevent and combat sexual exploitation and sexual abuse of children;

• protect the rights of child victims of sexual exploitation and sexual abuse; and

• promote national and international cooperation against sexual exploitation and sexual abuse of children.

Madam President, this Bill will bring Bermuda into compliance with the internationally recognized standards set by the Lanzarote Convention. The ‘Lanzarote Convention’ is the moniker ascribed to the 2007 Council of Europe’s Convention on Protection of Children against Sexual Exploitation and Sexual Abuse. Its overarching purpose is to protect children against sexual abuse and to establish the various forms of sexual abuse of children as criminal offences.

It should be noted Madam President that the Lanzarote Convention is considered the universal gold standard for child safeguarding, and Bermuda can take pride that while preparing for this extension, it was ascertained that Bermuda’s current legislation was predominately compliant. The improvements we are seeking today with this Bill, will further strengthen our child safeguarding regime and modernize our approach to sexual offences in general.

One of the primary requirements for compliance with the Lanzarote Convention, Madam President, is for the designation of “Child” to be universally defined as a person under the age of eighteen years. Accordingly, the Bill seeks to amend the definition of “child” to reflect this new interpretation. We also took this opportunity to bring the language from older legislation, such as classifications of sexual offences, into the modern era, by repealing and replacing the use of what would now be considered offensive or inaccurate terminology or language, ensuring this new legislation will be in line with current sensibilities.

For instance, Madam President, the archaic language in current sexual offences to “unnatural” and “against the order of nature” will be repealed, and the offence will now be named for what it is meant to criminalize: non-consensual anal intercourse. However, it should be noted that no change has been made to the penalty or the age of consent as it relates to this particular offence.

In addition, Madam President, with the previous offence of “intercourse with a defective” we have modernized the terminology to refer to “severe mental impairment” and have defined this to mean a person suffering from a state of arrested or incomplete development of the mind. These updates to the language will not only modernize this legislation, but will also give the Government further latitude in prosecuting these types of criminal offences.

Madam President, there are many factors that a court needs to consider when faced with sentencing an offender for sexual crimes against children. This Bill will compel the Court to consider the following factors as aggravating, which will therefore, warrant more severe penalties:

• the offence seriously damaged the physical or mental health of the victim;

• the offence was preceded or accompanied by acts of torture or serious violence;

• the offence was committed against a particularly vulnerable victim;

• the offence was committed by a member of the family, a person cohabiting with the child or a person having abused his or her authority;

• the offence was committed by several people acting together;

• the offence was committed within the framework of “unlawful gang activity”; and;

• the perpetrator has previously been convicted of offences of the same nature.

Madam President, an important component of this Bill is that it addresses the circumstances of child sexual abuse that could not be prosecuted due to jurisdictional issues. These usually entail evidence implicating local suspects having molested local children while overseas. Given the frequency of travel of our population to foreign jurisdictions, this issue is of particular concern. This Bill will amend the Criminal Code to allow prosecution in these particular circumstances.

Madam President, one of the barriers to the prosecution of sex offences is that they often go unreported because the child victim does not feel they can report it or has been coerced into not reporting it. Child victims find that decades later, when they are adults, the statute of limitations for the particular offence has run out. I am pleased to inform Senators, Madam President, that the Bill removes the only statute of limitations that remained for any sexual offence.

Additionally Madam President, the Bill amends the Criminal Code to create the specific offences of: prostituting children; recruiting a child into participating in pornographic performances or causing a child to participate in such performances; coercing a child into participating in pornographic performances or profiting from or otherwise exploiting a child for such purposes; and knowingly attending pornographic performances involving the participation of children.

Madam President, the proposed amendments extend beyond natural persons to bodies corporate. In particular, upon sentencing a body corporate for the offence of making or distributing child abusive material or child pornography, the Bill makes provision for the Court, in addition to imposing a fine, to recommend the following with respect to the body corporate:

• exclusion from entitlement to public benefits or aid; or

• judicial winding up order.

In addition, Madam President, provision is made for any money forfeited from persons convicted of child pornography offences to be paid into the Confiscated Assets Fund. The Bill proposes that the forfeited money be used for education and training of officials in the effective implementation of the new special measures provisions in relation to child witnesses in criminal cases relating to sexual exploitation of children and related measures, and for prevention and assistance programmes.

Madam President, the Bill introduces a new requirement that the DNA profile of a person who is registered as a sex offender be kept on the register. It also makes the penalty for the following offences against children 50% higher than the penalty where the offence is committed against an adult:

• Procuring unlawful carnal connection of a person by threats, or fraud, or by administering drugs;

• Obtaining prostitution from a child;

• Exercising control over a child or other person with a view to prostitution; and

• Intruding upon the privacy of women or girls.

Further, the Bill increases the penalty for incest as suggested by the Court of Appeal.

Madam President, with reference to gender neutrality with regard to offences against children, it is important to note that there are currently many criminal offences prescribed in law that can only be committed against a female child. That is to say, if the same acts were committed against a male child, they would not be prosecutable. This is a long-standing omission in our laws attributable to social values and perceptions that pertained at the time these laws were enacted which are not in alignment with current realities and sensibilities. The Bill ensures equal protection under the law for all children with increased penalties for the offenders.

Madam President, in keeping with the Throne Speech initiative to better assist children before the courts, child safeguarding has been a priority of the Ministry of Legal Affairs. Those familiar with cases involving the sexual abuse of children are aware of the complications faced by our current investigative and court procedures. Unfortunately, these procedures may have a detrimental effect on the children who are required to endure those processes through no fault of their own. As such, the Bill requires the courts to treat all criminal proceedings for sexual offences relating to a child as priority for case management purposes. The Bill advocates for investigations for sexual offences, and any subsequent prosecution, to be progressed and concluded with as little delay as possible.

Madam President, it is important to note that in order for the child safeguarding regime to be effective, it must also provide for amendments to the Children Act 1998 so as to ensure that awareness of the protection and rights of children is a priority – particularly among persons who have regular contact with children in the education, health, social protection, judicial and law-enforcement sectors and in areas relating to sport, culture and leisure activities. To achieve this objective Madam President, the Bill gives the Minister additional responsibility of promoting and supporting the coordination of all Government departments responsible for managing, protecting, preserving and reducing the serious personal injury offences committed against children. To that end, the Bill empowers the Minister to establish the National Child Safeguarding Committee to make policy recommendations to the Minister regarding the safeguarding and welfare of our children. The purpose of the Committee also includes:

• The development of a national plan of action to include making recommendations on effective mechanisms to enable the authorities in Bermuda to coordinate with each other concerning the development of policies and activities with respect to combating sexual exploitation and abuse of children;

• Coordinating activities to identify, assess and better understand Bermuda’s risks in relation to sexual abuse of children, and taking the necessary steps to ensure that such risk assessments are kept up-to-date; and

• Educating the public on, and increasing the public awareness of, the need to safeguard and promote the welfare of children.

Provision is also made for the Director of Child and Family Services to arrange for the delivery of physical and psycho-social assistance to a child that may be a victim of a sexual offence, as well as to a child who may have committed a serious personal injury offence. This includes those who are below the age of criminal responsibility [8 years old] with the aim of addressing any sexual behavioral problems.

As such Madam President, this Bill ensures that training is provided on children’s rights and sexual exploitation and sexual abuse of children for the benefit of all persons involved in court proceedings including judges, lawyers and law-enforcement officers.

Madam President, child victims are particularly vulnerable especially with regard to reporting their victimization after the fact. Their innocence often blinds them to the harm caused to them. The influence and control of adult perpetrators is often decisive. And the fear factor is predictably likely to be more enhanced than for adult victims. This warrants exceptional legal measures to ensure the protection our children deserve. This Bill specifically states that investigations or prosecution of offences where the victim is a child, shall not be dependent upon the report or accusation made by the child victim, and that the proceedings may continue even if the victim has withdrawn his or her statements.

Madam President, the Bill also amends the Education Act 1996 to require every aided and maintained school to provide children with appropriate information on the risks of sexual exploitation and sexual abuse, and how to protect themselves. This will ensure that our children receive information on the risks of sexual exploitation and sexual abuse, as well as on the means to protect themselves as the first line of defense. Furthermore, consideration will be given to adapting this information to the child’s evolving capacity.

Madam President, the requirement for corroboration, evidence that confirms or supports the evidence of children, has been abolished in most western countries, and Bermuda is behind in this regard. The prosecution process itself, especially the trial, can be daunting and stressful for children. There are risks of re-traumatizing the child or causing the child unnecessary worry and distress. Bermuda’s protections for children in the Court are outdated. Comparable jurisdictions such as Cayman Islands, Jamaica, Australia, Canada and the UK have all modernized their evidence legislation to more adequately reflect the importance of achieving the best evidence from children. Bermuda’s laws in this regard have not been reviewed or updated for 25 years. Presently, as an example, where a twelve-year-old is sexually exploited and cannot demonstrate that they understand the seriousness of a criminal trial and the particular responsibility to tell the truth, that twelve-year-old will not be allowed to testify under oath. This means that the accused person cannot be convicted unless there is independent evidence to support what the child has alleged. This is a major stumbling block to justice in these cases, as by the very nature of these offences, there may be no witness to the acts, and forensic evidence is often no longer available when a child makes the disclosure. Therefore, the Bill removes the requirement for corroboration of a child’s evidence.

Madam President, the Bill also provides for an entirely new and modern approach to Special Measures available to the Court to receive the evidence of Children. The Bill permits a child’s evidence to be pre-recorded in the absence of the jury and the accused, and that recording may be accepted as evidence during court proceedings. By so doing, child victims will be afforded the protection of being heard in the courtroom without being present, through the use of appropriate communication technologies.

The new special measures provide that where the child witness is a person other than the accused in criminal proceedings relating to a sexual offence, the child’s evidence is to be pre-recorded. In the event that the pre-recording for some reason cannot occur, the child’s evidence is to be given with the use of an audio visual link or with the benefit of a screen. The Court also retains the power to exclude the public from the court room. At all times, the fairness of the trial procedure, the rights of the accused, and the interests of justice are to be considered by the Court.

Madam President, the Bill creates a new regime that protects the privilege of sexual assault counselling communications. Presently, such communications are automatically disclosable to the court and to counsel for the defence. This causes distress and discomfort to victims who, consequently, either do not seek counselling and remain in a traumatized state, or choose to withdraw their complaint rather than expose themselves to questions about their counselling. The Bill, therefore, prevents automatic disclosure and requires the leave of the court hearing the proceedings to be obtained to:

• Compel another person to produce a protected counselling communication;

• Produce to a court, adduce evidence of or otherwise use, a protected counselling communication; or

• Otherwise disclose, inspect or copy a protected counselling communication.

Madam President, the current sexual offender provisions in the Criminal Code are designed for adult offenders. This Government is not blind to the fact that sometimes it is a child who assaults other children. In such cases both children are causes of concern warranting systemic intervention relative to each child. Therefore, the Bill amends the Young Offenders Act 1950 to ensure that intervention programmes or measures are developed or adapted to meet the developmental needs of children who sexually offend.

It is also of note Madam President that this Bill ensures that those professionals who have regular contact with children have not been convicted of acts of sexual exploitation or abuse of children. The listening public is invited to take note that this means that no person whose name appears in the Child Abuse Register or the Sex Offender Register will be employed as a health care professional; a school principal, teacher, counsellor, social worker, youth or recreational leader, member of the clergy or child care worker; or a police officer, probation officer or youth care worker.

Madam President, I have no doubt that the Bill will provide Bermuda with the tools to ensure that we are among the most progressive nations in the world pertaining to our child protection regime. These measures attest to the value we place on our children and our appreciation that their proper development is indispensable to the future of our society.

With those remarks I conclude and thank you, Madam President.

The Child Safeguarding [Miscellaneous Amendments] Act 2019 follows below [PDF here]

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