In January 2013 the Australian Government established The Royal Commission into Institutional Responses to Child Sexual Abuse. Since its inception, numerous private and public hearings have been held across Australia, involving not only individuals affected by child sexual abuse whilst under the care of an institution, but also with members and leaders within the Church and other institutions.
Whilst the Royal Commission has been a catalyst for many victims of child sexual abuse to come forward and tell their stories, there are undoubtedly many more Australians affected by this terrible crime, but who, for various reasons, have not yet been able to come forward and be heard.
In our work representing victims of child sexual abuse, we find that in many, if not most cases, it can take a person many years to come forward and report what happened to them as a child. In some cases, they are unable to finally open up about their experiences for over 20 years.
Further, in many of these cases, the person themselves may not have made the connection between their ongoing psychological anguish (depression, anxiety, poor anger control, poor self esteem, feelings of guilt, shame and worthlessness, their inability to maintain relationships or stable employment etc) with the abuse they suffered as an innocent, defenseless child, until much later in their adult life.
There are a number of reasons why adult victims of child sexual abuse may not come forward. Based on our experience it appears that chief among these reasons are:
- Feelings of shame and guilt – many victims carry with them a constant feeling that they somehow deserved this, or it was in some way their fault. This feeling is often accompanied by extreme shame and embarrassment and, in some cases, self-loathing.
- Fear – victims also suffer from an intense fear, which manifests in many forms – a fear they will not believed, of what those closest to them might say or think, that people won’t understand or support them, or that they will in someway be punished. Many often also fear that once it is out in the open they will be stigmatised and treated differently by those around them. They may also be overwhelmed by the idea of having to authentically confront the reality of what has happened to them and the impact it has had on their life. For many, this fear is debilitating and can consume their life.
- Feelings of distrust and an expectation of betrayal – due to the fact most perpetrators are people in positions of power and authority, and who were supposed to protect and care for the children they ultimately abuse, many victims go through their lives finding it extremely difficult to trust others, even their immediate family. They often believe that that they will always be betrayed or let down by others, just as they were when they were young and vulnerable children.
Historically, and despite the presence of mandatory reporting laws across the various legal jurisdictions in Australia, child sexual abuse has all too often gone undetected and/or unreported by people within institutions or the community. This has in many instances lead to a failure of early intervention and support for those affected and a situation whereby innocent men and women have been forced to carry the pain and adverse psychological impacts of this abuse for decades, often without any support.
Our work with victims of child sexual abuse has shown us just how important and healing it can be for these men and women to have their stories heard by the institutions whose care they were placed in and for their experiences, feelings and frustrations to be validated. Further, and in many cases, it is also important for them to be financially compensated for their pain and lost opportunities in life.
Unfortunately, at present, the civil and criminal justice systems and the various state redress schemes are somewhat lacking when it comes to providing justice and recompense to these men and women.
In addition to the emotional barriers faced by victims in coming forward with their stories, many legal barriers still exist in most states of Australia. These include but are not limited to:
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.
Notwithstanding the legal barriers above, our firm has assisted numerous men and women to receive reparation and compensation in relation to sexual abuse suffered by them as a child, particularly against orders of the Catholic Church. Further, we have been able to have certain orders within the Church agree to re-open cases that have previously been resolved/settled, often for highly inadequate amounts of money.
We understand that no amount of money will ever turn back the clock and restore our client’s innocence or the opportunities that were taken away from them. However, we have leaned that financial compensation can go a long way towards providing them validation, closure and a chance to move forward with some financial security and the means to seek appropriate support.
We have also been able to secure other, non-financial forms of compensation/reparation, such as verbal and written apologies and ongoing counsel and/or social support.
If you or someone you know has been affected by child sexual abuse whilst in the care of an institution, there may be a way in which we can help you access compensation and obtain recognition, compensation and, most importantly, closure. Please telephone our compassionate and experienced lawyers on 1800 25 1800 or alternatively make an online enquiry for a confidential no obligation consultation.
Written by Ruth Hudson.
Ruth Hudson is a Practice Group Leader within Stacks Goudkamp. She has supported numerous clients with their claims against the Church and other institutions with respect to sexual abuse suffered by them as children whilst in their care.