A teacher in Bermuda who had consensual sex with a pupil would not commit the offence of “sexual exploitation by a person in a position of trust or authority” if the child is aged 16 or over — unlike in Britain.
It has been an offence there since 2001 for a person older than 18 in a specified “position of trust” to have sexual contact with anyone under the age of 18, even if the relationship was consensual.
Under Britain’s Sexual Offences (Amendment) Act 2000, those in positions of trust include people who look after children under 18 who are receiving full-time education at an educational institution, such as a school or college.
Adults who are convicted face a prison term of between six months and five years.
Bermuda’s Criminal Code has a section that makes it an offence for “a person who, being in a position of trust or authority towards a young person” sexually exploits them.
Although the code, after a recent amendment, now defines a child as being a person under 18, the section on sexual exploitation applies only where the “young person” is under 16.
Kathy Lynn Simmons, the Attorney-General, tabled a string of child-safeguarding measures in the Senate this year that she said would bring Bermuda into line with the international standards set by the Lanzarote Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse.
Article 18 of the convention requires countries to criminalise intentional conduct involving a person engaging in sexual activities with a child “where abuse is made of a recognised position of trust, authority or influence over the child”.
The Lanzarote Committee says, in most countries that have signed up to the convention, “teachers and other educators commit a criminal offence if they engage in sexual activities with a pupil under the age of 18 years”.
In England, a teacher who has sex with a pupil or a former pupil can be banned for life from teaching, as happened to former Bermuda teacher Matthew McGowan in 2017.
Mr McGowan, who taught at Warwick Academy between 2007 and 2010, was given a lifetime ban after he “engaged in sexual activity” with a former pupil at Wycombe Abbey girls’ boarding school in Buckinghamshire.
Britain’s Teaching Regulation Agency, an executive branch of the Department for Education, enforces teachers’ disciplinary regulations in all schools, sixth-form colleges, children’s homes and youth accommodation.
It investigates reports of serious teacher misconduct and can refer cases to a professional conduct panel. The panel then investigates whether a prohibition order should be issued.
Hearings of professional conduct panels must take place in public, except where it appears necessary in the interests of justice for them to be private, or where a teacher makes a request that a hearing should be private and the panel does not consider that to be contrary to the public interest.
The hearings can also be held in private to protect the interests of children or vulnerable witnesses.
A list of forthcoming hearings and hearing outcomes is available online.
Schools, local authorities and teacher supply agencies can check the record of any qualified teacher at no charge.
The Bermuda Educators Council has similar disciplinary powers for registered teachers, including the ability to issue a prohibition order, but it is not clear if it uses them.
Its investigating committee can launch an inquiry where it is alleged or it appears that a registered educator is guilty of unacceptable professional conduct or has been convicted at any time of a relevant offence.
The investigating committee can then refer cases to a professional conduct committee.
All hearings of the professional conduct committee must take place in public, with the same exceptions as in England.
The Bermuda Educators’ Council Act says the council “may publish” information about disciplinary orders “as they see fit”.
Delaey Robinson, a government backbencher when the law was passed in 2002, said at the time that much of the council’s business would be conducted in the open.
The Royal Gazette was unable to find any published results or reports of past professional misconduct hearings held by the Bermuda Educators Council.
A request for information to the council and the Ministry of Education did not receive a response by press time.