An Illawarra high school teacher has pleaded guilty to two charges of sexual intercourse with a person under care, after he had sexual relations with two 17-year-old students at his school on separate occasions approximately four months apart. The teacher is due to appear in court to set a sentencing date.

While the relevant teacher was not specifically charged with grooming offences, the prevalence of language surrounding grooming in news reports on the matter, and the allegations of repeat offending, make this case an incredibly important one for schools in remaining aware of the indicators and prevalence of grooming.

The facts

Mr M was a ‘popular’ 25-year-old physical education teacher who spent two years as a casual teacher in the high school’s PE Department. He had recently been promoted from his casual position into a permanent teaching role when the behavioural indicators outlined in the facts commenced.

First Victim

Late in 2016, Mr M messaged one of his students online, asking her why she had been absent from school. The teacher reportedly groomed the student on Instagram for weeks; the pair exchanged messages 1-2 times a week, with Mr M telling the student he ‘would always be there for her’.  In November 2016, the student became stressed and requested a conversation with Mr M, causing him to pick her up and take her on an evening drive to Corrimal Beach.

Mr M and the student played ‘truth or dare’ parked at the beach, progressively removing items of clothing. The pair had sexual relations shortly afterwards, before Mr M drove the student home.

Second Victim

Four months later, Mr M befriended another of his students on social media, connecting with her on both Facebook and Snapchat. The chain of correspondence is alleged to have started after the student broke up with her boyfriend, prompting him to assure her ‘I’m here if you need me’. Mr M requested that the student delete the message after reading it to avoid getting into trouble.

Mr M began communicating with her on Snapchat.

On the morning of February 13, the two agreed to meet and allegedly had sexual relations in the sand dunes.

Mr M reportedly told the student “I want this to be really quick,” and requested she keep the encounter quiet and behave normally. The teacher gave the student a lift back to school, dropping her off a few streets away to avoid suspicion.

Rumours began circulating at the school after the victim told her friends about the encounter that morning. Both denied the rumours but the victim later revealed the incident to her parents and subsequently filed a complaint with the Police.

Mr M was arrested, sacked by the Department of Education and refused bail. Prosecutors later revealed that Mr M’s first victim had also come forward alleging inappropriate behaviour, causing him to plead guilty.

Grooming and the law

Before Mr M entered guilty pleas to both charges, the key issue at trial was to be whether the two students had been under his ‘care’ for the purposes of the Crimes Act 1900 (NSW).

Under section 73, it is a criminal offence for any person to have sexual intercourse with someone at or above the age of 16 and under 18, while the victim is under the special care of the offender. A victim is taken to be under the special care of the offender in a limited number of scenarios, most relevantly if the offender is a school teacher and the victim is their pupil.

Mr M was not charged specifically with procuring or grooming of his victims, as in NSW the offence only applies to procuring a child under the age of 16. If one or both of the victims were under 16, then his conduct would have been caught by section 66EB of the Crimes Act (NSW): it is an offence to engage in any conduct that exposes a child to indecent material, with the intention of making it easier to procure the child for unlawful sexual activity.

Other jurisdictions have equivalent grooming offences that would have captured Mr M’s conduct. For example, under section 61A of the Crimes Act 1900 (ACT), it is an offence to commit an act of indecency on a young person who is under the person’s special care (which also extends to the teacher-student relationship). An ‘act of indecency’ is not defined under the Act, but likely broadly covers any act which is sexual in nature which a reasonable person would consider to be unacceptable conduct against community morals, likely covering the grooming of a student by a teacher.  The law has also recently changed in Victoria to increase the number of offences involving encouraging a child to engage or be involved sexual activity - refer to our previous School Governance article.

The Federal Criminal Code Amendment (Protecting Minors) Bill 2017 (Cth) is also subject to review by Federal Parliament.  In other words, criminal legislation is constantly changing to broaden the types of conduct which will amount to criminal offences.

What should schools do?

As explained previously on School Governance, grooming is intrinsically difficult to identify at the time it occurs, since the classification of behaviour as ‘grooming’ depends on the motivation of the alleged offender. While grooming may not be completely preventable, an understanding of contributing factors, indicators and techniques of grooming will enable schools to recognise and respond appropriately to the threat of grooming in their context.

It is important to be on the lookout for indicators of grooming regardless of a teacher or staff member’s established character, popularity, or the fact that they have not previously exhibited inappropriate behaviour. In Mr M’s case, he had significant community involvement prior to these incidents; online profiles suggested he taught holiday sports programs for primary school students, participated in local cricket clubs and also volunteered as a lifeguard.

The line between teacher and peer may appear blurred where the teacher in question is themselves a young adolescent and proximate in age to his/her students. But sexual misconduct between a teacher and young student breaches professional ethics and is likely a criminal offence, regardless of the student or teacher’s age or whether there was consent.

With all this in mind, schools must ensure they have strong child protection and welfare policies and procedures in place to ensure that all indicators of child abuse, including grooming, are monitored and can be identified by school staff. They should also maintain and clearly communicate a child safety code of conduct, clearly stipulating the professional boundaries that staff are expected to maintain.

Schools looking for information on how to create or improve upon a culture of child safety should consult the paper ‘Compliance with Current and Future Child Protection Laws – Embedding a Child Protection Culture.  How can this be achieved?’ by James Field, Managing Director of CompliSpace.