1. Difficulty identifying a defendant/legal entity capable of being sued.
In almost all cases a victim of child sexual abuse will be able to bring an action against the person who committed the abuse. However, in many cases, this person may have died in the time since the abuse occurred or may have limited or no assets. Accordingly, if the perpetrator was engaged or employed by an institution, the only alternative for a victim seeking compensation is to try and bring a claim against the institution as well or instead.
Unfortunately, and particularly in cases concerning abuse committed by a member of an order of the Catholic Church, victims may find it hard to establish a legal entity that existed at the time the abuse took place and which is capable of being sued or, they may find that the entity that existed at that time no longer exists.
2. Proving that the legal entity/institution should be liable for the actions of the individual who committed the abuse.
In Australia at present, it is very difficult for a person to bring a claim against an employer or institution in relation to the deliberate illegal/criminal acts of an individual engaged/employed by that institution.
Generally under Australian law, an employer is only held liable for the acts of their agents or employees when their agent or employee commits an act of negligence in the course of their employment. In cases involving deliberate illegal/criminal acts, in order to succeed against the employer or institution, the person needs to show that the perpetrator/employees actions were so closely connected with the perpetrators daily duties and responsibilities, or that the employer created a situation whereby this type of act cold could occur, that the employer reasonably knew or ought to have known that the criminal conduct was taking place, and they should have taken reasonable steps to prevent this and didn’t did nothing to stop this.
Sadly, those who perpetrate child sexual abuse are often in position of power and of trust, charged with the responsibility of taking care of or overseeing the welfare of children. This provides them with an opportunity to exploit vulnerable children, children who look to them for guidance and support.
Child abuse is often perpetrated by people who abuse their positions and the trust children have in them because of those positions. The reason they are often able to exploit and abuse children is by virtue of the power, respect and public standing their positions of authority afford.
3. Time limitations
In most jurisdictions, including NSW, time limits apply to bringing a case for compensation/personal injury. The court has some discretion with respect to extending these timeframes, including in circumstances has been laboring under a disability and unable to seek legal advice (including a psychological disability), or where the injuries have only just recently surfaced or been connected with a past tortious (wrongful/illegal) act.
When speaking with our clients who have been victims of child sexual abuse, often they have known for some time that their ongoing psychological distress and decreased level of functioning is related to the abuse suffered as a child, but for a whole host of reasons, they are still too afraid to come forward. Many victims have been so disempowered as a result of their experiences as a child that they try to avoid anything that forces them to talk about or deal with the traumatic events of their past.
This makes it very difficult to overcome the time limitations that apply to such claims. It is for this reason that there has been increasing pressure on the Government to amend the law on time limitations as it applies to victims of historical abuse. It is hoped this legislation will be one of the main outcomes of the Royal Commission.