In an interview with the BBC, ex-Director of Public Prosecutions Keir Starmer has called for the creation of a criminal offence for teachers and other professionals in childcare positions who do not report suspicions of child abuse to the authority. Starmer's comments come after a long string of high-profile allegations of prolific child abuse by former celebrities - notably the TV presenter Jimmy Savile - as well as an historical backdrop of reluctance of childcare professionals to come forwards. Starmer stated that he expects the imposition of a criminal penalty - which could involve imprisonment - for failure to comply to "focus peoples' minds" on addressing the problem of child abuse within the UK.
The call to encapsulate a 'mandatory reporting' duty in the criminal law raises a whole host of questions, some of which I want to explore here. Firstly, though, it is noteworthy that Starmer's statements come in the face of government opposition, so it is unlikely that we are talking about more than a mere hypothetical for the time being. Rampant criminalisation of socially deviant activity was, to be fair, far more of an issue during the New Labour years, with some 3,600 new offences being put into the statute books between 1997 and 2010. Still, it's an interesting possibility, since the idea of mandatory reporting for child abuse throws up a lot of sociopolitical, legal and emotional ramifications.
On the one hand, child abuse is clearly a massive issue, whether it be physical, emotional, or sexual. I won't bother with statistics on this one because I assume we can take it as moral common ground that the abuse of even one child is something that is to be avoided by society where at all possible. It is true that reporting suspicions of abuse has tended to be under-reported, both in the high-profile cases that dominate the media at the moment, and in more ordinary settings. Encouraging more people to come forward when they suspect maltreatment would therefore seem to be a socio-moral good. Essentially, this is not a question of bullying people into taking action so much as it is about evidence - about making it easier for the proper authorities to investigate potential abuse, prove that it has taken place, and prevent it from going any further.
On the other, though, what constitutes a 'suspicion' of child abuse? Does seeing a parent yelling at a child in the school parking lot count? Whilst there is clearly some conduct that ought to clearly fall into the category, there will always be marginal cases. Even though statutory implementation would clear up some of the uncertainties, it is clear that child abuse covers a broad spectrum of activities, and so suspicion of it will likewise take a number of different forms, to various degrees. Absent a number of lengthy - and expensive - legal proceedings, a working definition of 'suspicion of child abuse' will be hard to obtain.
On top of this, the question remains the capacity of the police to respond to reported allegations. Obviously this would remain a question of police and prosecutorial discretion as to which allegations provide sufficient evidence to merit investigation, but even without having to investigate every allegation, a mandatory reporting requirement would involve a considerable drain on police time. After all, police would have to deal with an increased frequency of reports, in step with the broadness of the definition of 'suspicion'. If every passing concern is required to be reported to the authorities, this will add up to a lot of police time in terms of receiving reports and deciding whether or not to follow through on them. In other words, any legislation of a mandatory reporting requirement would mean a compromise between catching as much potential abuse as possible and maintaining (cost- and time-) effective police services.
Beyond that, there are broader issues with enshrining the mandatory reporting requirement in the criminal law. It raises all the old chestnuts about imposing criminal liability for omissions to do something, especially within what usually claims to be a liberal democracy (see Andrew Ashworth on this, especially 'The Scope if Criminal Liability for Omissions' (1989) 105(3) Law Quarterly Review 424 and Chapter 4.4 of Principles of Criminal Law (2009: 6th edn, Oxford: OUP). Generally speaking, in a liberal society, punishment should be reserved only for the most serious intrusions in other peoples' abilities to exercise their own freedoms, and not for failures to so intervene.
But it also raises two further issues: one of criminal law theory, and another of criminal justice. Firstly, to what extent are those who suspect, but do not report, child abuse complicit in the abuse; and secondly, to what extent do they deserve criminal (and potentially custodial) punishment?
Complicity is an interesting question. Generally the criminal law allows for liability for those complicit in the commission of a criminal offence where they are aware of the crime, solicit it in some way, or assist in the commission of the offence or the escape of the offender from justice (for more detail, see Ashworth, Principles of Criminal Law, Ch 10). However, someone who only suspects a crime is taking place and does nothing is generally not held responsible. Should the concept of criminal complicity be extended here?
Perhaps the best way to answer this question is to ask another: are suspicious bystanders morally complicit in the abuse of children? That's a hard question to answer, and one that ultimately comes down to one's personal ethics. Again, it also depends on fact and degree: what is the basis of the suspicion and what exactly is suspected? For my money, though, there probably is some level of complicity for the innocent bystander who has a reasonable (i.e. evidence-based) suspicion that a child is being abused, when they do nothing.
The next question, though, is what does that complicity deserve? Here we come to the question of criminal punishment. Even if one is morally complicit, does one deserve the consequences of criminal liability? To borrow a hackneyed example, one may be responsible for the death of a baby that one sees drowning in a foot of water when one does not come to its rescue, but does one deserve to go to prison over it?
Here I'm much warier. The criminal law is the last line of the defence of mainstream society from social deviance because the punishments that are authorised for breaches of it are the most severe treatment that the State is allowed to impose. Even something as seemingly-ephemeral as a fine can ruin lives, especially in financially-straitened times and in lower-paid professions such as teaching and nursing. A prison sentence can do so much more damage, to one's relationships, one's work prospects, one's housing and income. That seems to be too high a price to pay for the failure to report a suspicion - more likely than not based on only partial evidence of guilt.
Starmer has done well to highlight an historical problem, but the intervention of the criminal law would be too severe a penalty for those who fail to report reasonable suspicions of abuse. So what are the alternatives?
One alternative is the continental-European concept of the administrative offence - an intermediate response to wrongdoing that is less severe than the criminal law but carries more (social and legal) weight than the civil law. They are often used to punish traffic and parking offences, for instance - relatively 'low end' offending that nevertheless requires the intervention of public services. Introducing a middle category to contain offences such as breaches of any mandatory reporting requirement would go some way towards raising the profile of abuse in the minds of childcare professionals without imposing the stigma and suffering of a custodial sentence or a hefty fine.
Instead, one might try to argue for raising awareness and encouraging more people with reasonable suspicions to come forwards with the carrot, rather than the stick: educating professionals on the damage done by child abuse and the value of an early intervention by penal and welfare organisations. One need not make reporting mandatory to increase its incidence.
Ultimately, Starmer's comments highlight a very real problem, but the rush to the criminal law is misguided and far from desirable. Since it is unlikely that his proposals would ever see official enactment, the call for criminalisation may simply be a rhetorical device aimed at highlighting the complicity of the silent bystander. But ultimately, this is not something that criminal justice can currently, nor should ever, police.