LSP-I Appendix 4 - Definitions of Abuse

PART A

Prelature Safeguarding Policy (PSP)

Art. 262 (PSP Art. 3)

In this Policy, unless the context excludes it, vulnerable persons are to be taken as equivalent to minors, even if they are not expressly mentioned.

a) “Minor” means any person under the age of eighteen years. A person with an habitually imperfect use of reason is equivalent to a minor (cf. Motu Proprio Sacramentorum sanctitatis tutela, – as revised – Art. 6, 1°).

b) “Vulnerable person” means, for the purposes of these directives, any adult in a state of infirmity, physical or psychological deficiency or deprivation of personal liberty, which in fact limits his or her ability, albeit occasionally, to understand or want or otherwise resist an offence (cf. VELM Art.1 §2 a-b).

PART B

Regional Safeguarding Policy (RSP)

The Crime of Child Sexual Abuse in Church and State Law

Art.  263 (RSP Appendix IA)

MOTU PROPRIO SACRAMENTORUM SANCTITATIS TUTELA

Issued April 30, 2001, with the revision of May 21, 2010, further revised by the Rescriptum ex Audientia of 11 October 2021 and published on 7th December 2021 as the “Norms Regarding Delicts Reserved to the [Dicastery] for the Doctrine of the Faith”

SST Article 6 

§1 The more grave delicts against morals which are reserved to the judgement of the [Dicastery] for the Doctrine of the Faith are: 

i. the delict against the sixth commandment of the Decalogue committed by a cleric with a minor below the age of eighteen years or with a person who habitually has the imperfect use of reason; ignorance or error on the part of the cleric regarding the age of the minor does not constitute an extenuating or exonerating circumstance;

ii. the acquisition, possession, exhibition, or distribution, for purposes of sexual gratification or profit, of pornographic images of minors under the age of eighteen years, in any manner and by any means whatsoever, by a cleric.


THE PROCEDURE AND PRAXIS OF THE DICASTERY FOR THE DOCTRINE OF THE FAITH

SCICLUNA, Msgr. Charles J.

Section A - Delicta contra mores

Regarding the offence of sexual abuse of minors, some considerations of the Procedure and Praxis of the CDF are relevant:

a) The motu proprio speaks of a “delictum cum minore”. This does not mean only physical contact or direct abuse but includes indirect abuse also (for example: showing pornography to minors; lewd indecent exposure in front of minors). Included also is the possession of, or downloading from the internet of, paedophilic pornography. (…)

b) Can. 1395 §2 CIC speaks of a delict with a minor under 16: “cum minore infra aetatem sedecim annorum”. The motu proprio, on the other hand, speaks of a delict with a minor under 18: “delictum … cum minore infra aetatem duodeviginti annorum”. Therefore, the classification of the delict becomes more complex. Some experts, in fact, speak not only of paedophilia (the sexual attraction to prepubescent children) but also of ephebophilia (the sexual attraction to adolescents), of homosexuality (the sexual attraction to adults of the same sex) and of heterosexuality (the sexual attraction to adults of the other sex). Between sixteen and eighteen years of age, some “minors” may indeed be perceived as objects of homosexual or heterosexual attraction. Some civil jurisdictions consider a person of sixteen years as capable of giving consent for sexual activity (whether hetero- or homosexual). The motu proprio, however, stigmatizes as a delict every violation of the Sixth Commandment with a minor under eighteen years of age whether based on paedophilia, ephebophilia, homosexuality or heterosexuality. This differentiation has, nevertheless, an importance from the psychological, pastoral and juridical points of view. It helps, no doubt, both the Ordinary and the judge in grasping the gravity of the delict and choosing the path necessary for the reform of the guilty cleric, the reparation of scandal and the restitution of justice (cfr. Can. 1341).

PART C

Local Safeguarding Policy – Ireland

C-I | Ecclesiastical

Art.  264 (NBSCCCI Guidance)

C-II | Civil (Republic of Ireland)

Art.  265 (Physical, Emotional, Sexual Abuse and Neglect in Children First Guidance)

Physical Abuse is when someone deliberately hurts a child physically or puts them at risk of being physically hurt. It may occur as a single incident or as a pattern of incidents. A reasonable concern exists where the child’s health and/or development is, may be, or has been damaged as a result of suspected physical abuse.

Physical abuse can include the following:

o Physical punishment

o Beating, slapping, hitting or kicking

o Pushing, shaking or throwing

o Pinching, biting, choking or hair-pulling

o Use of excessive force in handling deliberate poisoning

o Suffocation Fabricated/induced illness

o Female genital mutilation

The Children First Act 2015 includes a provision that abolishes the common law defence of reasonable chastisement in court proceedings. This defence could previously be invoked by a parent or other person in authority who physically disciplined a child. The change in the legislation now means that in prosecutions relating to assault or physical cruelty, a person who administers such punishment to a child cannot rely on the defence of reasonable chastisement in the legal proceedings. The result of this is that the protections in law relating to assault now apply to a child in the same way as they do to an adult.

Emotional abuse is the systematic emotional or psychological ill-treatment of a child as part of the overall relationship between a caregiver and a child. Once-off and occasional difficulties between a parent/carer and child are not considered emotional abuse. Abuse occurs when a child’s basic need for attention, affection, approval, consistency and security are not met, due to incapacity or indifference from their parent or caregiver. Emotional abuse can also occur when adults responsible for taking care of children are unaware of and unable (for a range of reasons) to meet their children’s emotional and developmental needs. Emotional abuse is not easy to recognise because the effects are not easily seen.

A reasonable concern for the child’s welfare would exist when the behaviour becomes typical of the relationship between the child and the parent or carer.

Emotional abuse may be seen in some of the following ways:

o Rejection

o Lack of comfort and love

o Lack of attachment

o Lack of proper stimulation (e.g. fun and play)

o Lack of continuity of care (e.g. frequent moves, particularly unplanned)

o Continuous lack of praise and encouragement

o Persistent criticism, sarcasm, hostility or blaming of the child

o Bullying

o Conditional parenting in which care or protection of a child depends on his or her behaviours or actions

o Extreme overprotectiveness

o Inappropriate non-physical punishment (e.g. locking child in bedroom)

o Ongoing family conflicts and family violence

o Seriously inappropriate expectations of a child relative to his/her age and stage of development

There may be no physical signs of emotional abuse unless it occurs with another type of abuse. A child may show signs of emotional abuse through their actions or emotions in several ways. These include insecure attachment, unhappiness, low self-esteem, educational and developmental underachievement, risk taking and aggressive behaviour.

It should be noted that no one indicator is conclusive evidence of emotional abuse. Emotional abuse is more likely to impact negatively on a child where it is persistent over time and where there is a lack of other protective factors.

Sexual abuse occurs when a child is used by another person for his or her gratifcation or arousal, or for that of others. It includes the child being involved in sexual acts (masturbation, fondling, oral or penetrative sex) or exposing the child to sexual activity directly or through pornography.

Child sexual abuse may cover a wide spectrum of abusive activities. It rarely involves just a single incident and in some instances occurs over a number of years. Child sexual abuse most commonly happens within the family, including older siblings and extended family members.

Cases of sexual abuse mainly come to light through disclosure by the child or his or her siblings/friends, from the suspicions of an adult, and/or by physical symptoms. It should be remembered that sexual activity involving a young person may be sexual abuse even if the young person concerned does not themselves recognise it as abusive.

Examples of child sexual abuse include the following:

o Any sexual act intentionally performed in the presence of a child

o An invitation to sexual touching or intentional touching or molesting of a child’s body whether by a person or object for the purpose of sexual arousal or gratification

o Masturbation in the presence of a child or the involvement of a child in an act of masturbation

o Sexual intercourse with a child, whether oral, vaginal or anal

o Sexual exploitation of a child, which includes:

o Inviting, inducing or coercing a child to engage in prostitution or the production of child pornography [for example, exhibition, modelling or posing for the purpose of sexual arousal, gratification or sexual act, including its recording (on film, videotape or other media) or the manipulation, for those purposes, of an image by computer or other means]

It should be noted that in criminal law the age of consent to sexual intercourse is 17 years for both boys and girls. Any sexual relationship where one or both parties are under the age of 17 is illegal. However, it may not necessarily be regarded as child sexual abuse.

Neglect occurs when a child does not receive adequate care or supervision to the extent that the child is harmed physically or developmentally. It is generally de ned in terms of an omission of care, where a child’s health, development or welfare is impaired by being deprived of food, clothing, warmth, hygiene, medical care, intellectual stimulation or supervision and safety.

Emotional neglect may also lead to the child having attachment difficulties. The extent of the damage to the child’s health, development or welfare is influenced by a range of factors. These factors include the extent, if any, of positive influence in the child’s life as well as the age of the child and the frequency and consistency of neglect.

Neglect is associated with poverty but not necessarily caused by it. It is strongly linked to parental substance misuse, domestic violence, and parental mental illness and disability.

A reasonable concern for the child’s welfare would exist when neglect becomes typical of the relationship between the child and the parent or carer. This may become apparent where you see the child over a period of time, or the effects of neglect may be obvious based on having seen the child once.

The following are features of child neglect:

o Children being left alone without adequate care and supervision 

o Malnourishment, lacking food, unsuitable food or erratic feeding 

o Non-organic failure to thrive, i.e. a child not gaining weight due not only to malnutrition but also emotional deprivation

o Failure to provide adequate care for the child’s medical and developmental needs, including intellectual stimulation

o Inadequate living conditions – unhygienic conditions, environmental issues, including lack of adequate heating and furniture

o Lack of adequate clothing

o Inattention to basic hygiene

o Lack of protection and exposure to danger, including moral danger, or lack of supervision appropriate to the child’s age

o Persistent failure to attend school

o Abandonment or desertion

Art.  266 (Child Pornography)

The Child Trafficking and Pornography Act 1998, which is amended by Section 6 of the Criminal Law (Sexual Offences) (Amendment) Act 2007, makes it an offence to possess, produce, distribute, print or publish child pornography.

Art.  267 (Sexual Abuse in Criminal Law)

Children First Act 2015, as amended by Section 55 of the Criminal Law (Sexual Offences) Act 2017: –

Section 2: – “sexual abuse” means, in relation to a child — (a) an offence against the child, specified in Schedule 3.

Schedule 3 of the Children First Act 2015 as amended specifies ‘offence against the child’ for the purposes of paragraph (a) of the definition of ‘sexual abuse’ in Section 2 of the Act as:

1. Rape.

2. Rape under section 4 of the Criminal Law (Rape) (Amendment) Act 1990.

3. Sexual assault.

4. Aggravated sexual assault within the meaning of section 3 of the Criminal Law (Rape) (Amendment) Act 1990.

5. An offence under section 1 of the Punishment of Incest Act 1908 (incest by males).

6. An offence under section 2 of the Punishment of Incest Act 1908 (incest by females of or over 17 years of age).

7. An offence under section 6(1) of the Criminal Law (Sexual Offences) Act 1993 (soliciting or importuning for purposes of commission of sexual offence).

8. An offence under section 2 of the Criminal Law (Sexual Offences) Act 2006 (defilement of child under 15 years of age).

9. An offence under section 3 of the Criminal Law (Sexual Offences) Act 2006 (defilement of child under 17 years).

9A An offence under section 3A of the Criminal Law (Sexual Offences) Act 2006 (offence by person in authority).

10. An offence under either of the following provisions of the Child Trafficking and Pornography Act 1998: 

a. section 3 (child trafficking and taking, etc., child for sexual exploitation);

b. section 4 (allowing child to be used for child pornography);

c. section 4A (organising etc. child prostitution or production of child pornography);

d. section 5A (participation of child in pornographic performance).

11. An offence under section 5 of the Criminal Law (Human Trafficking) Act 2008 in so far as it relates to a child who has been trafficked for the purpose of his or her exploitation (soliciting or importuning for purposes of prostitution of trafficked person).

12. An offence under section 176 of the Criminal Justice Act 2006 (reckless endangerment of children).

13. An offence under section 249 of the Children Act 2001 (causing or encouraging sexual offence upon a child).

14. An offence under any of the following provisions of the Criminal Law (Sexual Offences) Act 2017:

a. section 4 (invitation etc. to sexual touching);

b. section 5 (sexual activity in the presence of child);

c. section 6 (causing child to watch sexual activity);

d. section 8 (use of information and communication technology to facilitate sexual exploitation of child).

C-III | Civil (Northern Ireland)

Art.  268 (Physical, Emotional, Sexual Abuse, Exploitation and Neglect in Co-operating to Safeguard Children)

Abuse: Harm can be suffered by a child or young person by acts of abuse perpetrated upon them by others. Abuse can happen in any family, but children may be more at risk if their parents have problems with drugs, alcohol and mental health, or if they live in a home where domestic abuse happens. Abuse can also occur outside of the family environment. Evidence shows that babies and children with disabilities can be more vulnerable to suffering abuse.

Although the harm from the abuse might take a long time to be recognisable in the child or young person, professionals may be in a position to observe its indicators earlier, for example, in the way that a parent interacts with their child. Effective and ongoing information sharing is key between professionals.

Physical abuse is deliberately physically hurting a child. It might take a variety of different forms, including hitting, biting, pinching, shaking, throwing, poisoning, burning or scalding, drowning or suffocating a child.

Sexual abuse occurs when others use and exploit children sexually for their own gratification or gain or the gratification of others. Sexual abuse may involve physical contact, including assault by penetration (for example, rape, or oral sex) or non-penetrative acts such as masturbation, kissing, rubbing and touching outside clothing. It may include non-contact activities, such as involving children in the production of sexual images, forcing children to look at sexual images or watch sexual activities, encouraging children to behave in sexually inappropriate ways or grooming a child in preparation for abuse (including via e-technology). Sexual abuse is not solely perpetrated by adult males. Women can commit acts of sexual abuse, as can other children.

Emotional abuse is the persistent emotional maltreatment of a child. It is also sometimes called psychological abuse and it can have severe and persistent adverse effects on a child’s emotional development. Emotional abuse may involve deliberately telling a child that they are worthless, or unloved and inadequate. It may include not giving a child opportunities to express their views, deliberately silencing them, or ‘making fun’ of what they say or how they communicate. Emotional abuse may involve bullying – including online bullying through social networks, online games or mobile phones – by a child’s peers.

Exploitation is the intentional ill-treatment, manipulation or abuse of power and control over a child or young person; to take selfish or unfair advantage of a child or young person or situation, for personal gain. It may manifest itself in many forms such as child labour, slavery, servitude, engagement in criminal activity, begging, benefit or other financial fraud or child trafficking. It extends to the recruitment, transportation, transfer, harbouring or receipt of children for the purpose of exploitation. Exploitation can be sexual in nature.

Neglect is the failure to provide for a child’s basic needs, whether it be adequate food, clothing, hygiene, supervision or shelter that is likely to result in the serious impairment of a child’s health or development. Children who are neglected often also suffer from other types of abuse.

Art.  269 (Child Pornography)

The Protection of Children Order 1978, with the Criminal Justice and Immigration Act 2008, makes it an offence for anyone to take, allow to be taken, possess, show, distribute or publish any indecent image of a child. For the purpose of these Orders, a child is defined as anyone aged under eighteen.

Art.  270 (Sexual Abuse in Criminal Law)

Child Sexual Exploitation is not a specific criminal offence in itself. It does, however, encompass a range of sexual offences and other forms of serious criminal misconduct. 

The legal age of consent is 16 years, although the relevant age in relation to indecent images is 18 years. It is a crime to possess, take, make, distribute or show anyone an indecent or abusive image of a child or young person under 18 years of age. 

Any sexual activity with any child or young person under the age of 16, whether they consent or not, is a criminal offence. It is an offence for a person to have a sexual relationship with a 16 or 17 year old if they hold a position of trust or authority in relation to them. 

Non-consensual sex is rape, whatever the age. If the victim is incapacitated through drink or drugs, or the victim, or his or her family, has been subjected to violence or the threat of it, they cannot be considered to have given true consent and, therefore, offences may have been committed.

The Sexual Offences (Northern Ireland) Order 2008 introduced a range of offences that recognized the grooming, coercion and control of children – 

o Arranging or facilitating a child sex offence (under 16) 

o Meeting a child following sexual grooming (under 16) – see note below.

o Paying for the services of a child 

o Causing or inciting child prostitution or pornography 

o Controlling a child prostitute or child involved in pornography 

o Arranging of facilitating child prostitution or pornography 

o Trafficking into, within or out of the UK for sexual exploitation. 

Grooming – In July 2015, the Sexual Offences (NI) Order 2008, was amended – 

o Article 22 reduces the number of times an adult has to have communicated with a child before meeting them, or travelling to meet them from two to one occasion, and 

o Article 22A introduced the offence of ‘sexual communication with a child’ by an adult, where the content is sexual or is intended to cause or incite a child to communicate sexually.