Any sexual activity between a child and an adult is generally regarded as abusive because of the lack of maturity, awareness of sexual matters and knowledge of ‘consent’ of the young person. What behaviours and events  ‘qualify’ as a crime to be put to a court will ultimately be decided by police and then the prosecutor. 

Much offending against children is dismissed as ‘child’s play’, or unprovable, without having proper regard for ensuring the child receives support and counselling if required. Not being able to be criminally investigated, or go to court does not mean the abuse did not occur.

Children are regarded as not being mature enough to understand criminality and intent until about the age of ten years, or even older in some cases.  In cases falling into this age bracket, irrespective of the actions, impact, or damage caused, it may be very unlikely that any criminal action would be taken against the offender by police. 

The issue of caring for the victim to promote healing and to remedy the impact is a different, perhaps an even more important one, unrelated to what the law can or can’t do.

Child = birth to age of consent (16 in NSW)
Very young children can be targeted, with perpetrators often blaming the baby, toddler, child or young person for tempting them with actions they found irresistible which they mentally recalibrated into implied consent and cooperation, claiming their sexual offending was wanted. 

Impacts according to the actual abuse, age and development vary between children, but generally a victim has no power, is easily coerced, threatened, silenced, disbelieved, feels guilty, dirty, used and manipulated, in addition to any physical impact.

Many do not realise that what has happened to them was criminal or abusive until years later when symptoms and illness appear and they become old enough to understand. Others may be deeply affected by what others may feel to be really not that ‘criminal’ – like touching a child on the genitals or breast.

Evidence
Not all sexual activity will leave physical proof of the abuse, or be of a violent nature (such as causing bruising, tearing, pain, infection) and so it is not always easy to tell or show tangible proof of whether a child has been sexually abused. Even when there is evidence – such as tearing around the anus or hymen – other explanations such as constipation causing straining, or a childhood fall are often preferred ‘logic’ by the law. 

Medical certification or certainty can be very hard to get; in fact parents suspecting abuse have themselves been ultimately seen to be abusive for taking their child for a medical examination in cases of suspected sexual abuse, particularly if it is the other parent who is suspected, or named by the child as sexually abusing them. 

Of course children rarely have the words to accurately describe sexual acts or the knowledge to supply accurate dates, times, places and circumstances when abuse has occurred, and the legal system is notoriously poor at acting in a child developmental focused way. 

Children’s evidence and memories may not fit easily into the requirement to prove, ‘Beyond a reasonable doubt’ the elements of an alleged crime, so many cases may never be investigated. Not only are children often not believed at the beginning of a case, instructions are given to a jury by the judge that if a case proceeds they are directed to ‘closely scrutinise the child’s evidence’, and the very high level of proof ‘Beyond a Reasonable Doubt’ is also repeatedly highlighted. The criminal system is about ‘proving’, not just believing it happened, and many a guilty person has been found ‘Not guilty’.