What rights do employees accused of bullying have?
The news last week revealed that the number of children that the police are investigating for committing child sexual offences has almost doubled in the last four years. These figures relate to instances where the person alleged to have committed the offence and the alleged victim are both aged under 18. They were obtained by the children’s charity Barnardo’s following a freedom of information request.
According to Barnardo’s, the police recorded 9,290 accusations of sexual offences where both alleged perpetrator and victim were under 18 in 2016 compared with 5,215 in 2013 (a 78% rise). Barnardo’s did not release any information on the nature of the alleged sexual offences which could range from rape to sexting. This increase should also be considered against a backdrop of an increase in sexual offending more generally. Figures released by the Office for National Statistics show that over broadly the same period, both sexual offending and offending relating to indecent images have increased by more than 78%.
As far as youth offending is concerned, it is evident that one of the main causes behind the reported increase is the ubiquity of modern technology and smartphones and the increasing simplicity by which users, including children, can use it to interact with others. Whilst the ease with which people can interact with each other in the modern era is broadly perceived as beneficial to society it has also undoubtedly opened up a Pandora’s box when it comes to the commission of sexual offences. Taken together with the falling average age at which young people are first exposed to technology (recent research indicates that on average, children get their first smart phone aged 10.3 years, just in time to be criminally liable for any errors of judgement committed by these Digital Natives) Barnardo’s evidence confirms our experience as Youth Crime specialists that the use of this technology has led to many young people and children finding themselves in difficult circumstances. These can arise as a result of having committed an offence, having fallen victim to an offence, or in some cases, both.
In an age where a photograph or video of a sexual nature can be recorded and sent to others (or potentially published) at the swipe of a finger, it is no surprise that impulsive behaviour might cause problems for any individual, not just children or young people. It is however also true that young people might be more likely to act on impulse than adults. They are also clearly less able to appreciate the consequences of their actions in terms of:
Further it should be noted that it is not necessarily the case that the commission of sexual offences by children against other children will arise as a result of a malevolent or spiteful intention. A young person under 18 will be committing an offence when, for example he or she is in possession of an image of a sexual nature of their girlfriend or boyfriend who is the exact same age as them (aka flirting); a fact which, based on our experience, is often not immediately apparent to many adults let alone children. However, this does not in any way negate the offence itself.
The prevalence of smartphones is the likely cause of the increased incidence of “sexting” amongst children. This might in turn be a large contributory factor behind the reported increase in offending (Barnardo’s has not released any qualitative information to assess the extent of this), but in our experience it is not likely to be the only reason. We live in the age of information and it is as accessible as never before. One of the side effects of this accessibility is that the incidence of offences relating to indecent images of children has also risen. Large quantities of indecent images of children can be shared using laptop and desktop computers just as easily as self -generated content can be shared through smartphones. Similarly, children have found themselves in trouble purely by being curious about the kind of material that can be found in the darker corners of the internet.
Finally one should also note circumstances in which children might initially find themselves being a victim of an offence by being exploited by adults online but eventually end up committing offences themselves. Young people do not necessarily have the mental or emotional capabilities to deal with situations that they might find themselves in online. Whilst they might initially find the prospect of participating in conversations of a sexual nature with adults online exciting (whether that is in chat rooms or in webcam calls), they might quickly find themselves in much more difficult territory if they are subjected to coercion or pressure. They might for example be threatened with being “outed” on social media or being reported to the police for being in adult chat rooms whilst underage. From there it is very easy to find things spiralling completely out of their control, such that they find themselves having to share images of themselves and others, or committing other sexual offences. Unfortunately the law makes little concession for the diminished capacity of a child aged 10.3years in dealing with these coercive situations.
The first step in seeking to prevent the risk of a child committing a sexual offence against another child is through education on sexual relationships. Whilst the subject can be a difficult one for most children to talk about, it is important to have full and frank conversations about both sexual relationships and the risks that technology might pose within that context. As far as the use of technology is concerned, it is important for young people to understand both the legal and wider consequences of creating or possessing a “sexual” image of a person under 18. They should be aware that the impact on a person of having their image distributed, whether the person is under 18 or not can be devastating. Sending that image to a friend can amount to making and distributing an indecent image.
Finally it should also be noted that as technology makes increasing use of cloud services for backing up user’s data, images and other records it becomes harder and harder to manage and/or delete this information.
What if the police are already involved?
In the event that the risk does materialise it is important to bear in mind that the CPS and the courts treat young people differently than they do adults, for all except the most serious offences. A good solicitor dealing with allegations of youth crime will understand the importance of making detailed representations to the police and CPS to ensure that they make informed decisions about the investigatory strategy and disposal of allegations concerning young people.
The CPS’s publicly stated policy is that whilst it would not usually be in the public interest to prosecute the consensual sharing of an image between two children of a similar age in a relationship (even though it does constitute an offence), it may be appropriate in other cases where exploitation, grooming or bullying is involved. If a matter does proceed to a prosecution it is worth noting that the main aim of the youth justice system is to prevent offending by children and young people. If a young person is convicted, the focus is on establishing responsibility, promoting rehabilitation and preventing re-offending rather than imposing sanctions or retribution.
Within this context the involvement of a qualified and experienced legal professional can very frequently minimise the longer term impact of a young person’s conviction for child sexual (or indeed any other) offences.
However, and unfortunately, it appears likely that with the relentless advance of technology, the absence of any prospect of an increase in the age of criminal responsibility or review of our Sexual Offences legislation to recognise the impact of immaturity, the number of young people that find themselves either under investigation for, or charged with, the commission of a sexual offence against another child will only increase.
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