Prosecutorial Discretion in Cases of Persistent Child Sexual Abuse

Abstract

In this article we examine the operation of laws in New South Wales ('NSW'), Queensland and South Australia that make it an offence to maintain an ‘unlawful sexual relationship’ with a child or young person. Our article draws on interviews with prosecutors and analysis of a sample of case files in each jurisdiction, as well as data on convictions. We identify three different approaches to prosecutorial discretion. The first is that the charge should only be used where the victim cannot give sufficient particulars to charge individual offences. The second is that the charge should be used in circumstances where charging individual incidents of abuse does not properly capture the level of criminality involved in the conduct of the accused in sexually abusing the complainant. The third is that the charge may be used whenever it provides an appropriate description of the nature of the accused’s offending behaviour towards the child. These different approaches help explain the widely different levels of usage of the charge between NSW and the other two States.