Impact of civil litigation process on child sexual abuse survivors
For survivors of child sexual abuse seeking justice, the process of civil litigation can be re-traumatising, and present complex barriers that are impossible to overcome, even with legal assistance. The national legal service knowmore has made a submission in response to the Royal Commission into Institutional Responses to Child Sexual Abuse Issues Paper about civil litigation systems, based on client feedback and experiences. knowmore provides free legal advice and assistance to people engaging with the Commission, or contemplating doing so.
knowmore has urged the Royal Commission to take a human rights perspective to ensure that survivors of institutional childhood sexual abuse, whose fundamental human rights have been grossly violated, are given accessible, effective and enforceable remedies in Australian courts and are able to obtain reparations where violations have occurred.
knowmore has submitted that the option of civil litigation, with appropriate reforms, should be maintained as an alternative for survivors seeking redress. However, knowmore has also noted that Australia’s civil litigation systems will never, even with the enactment of necessary reforms, be able to operate in ways that satisfactorily address or alleviate the impacts of childhood sexual abuse for the majority of survivors, either through providing appropriate compensation or delivering other outcomes sought by survivors.
Survivors decide to engage with the civil litigation system for a range of reasons. Aside from seeking financial compensation, many clients wish to obtain non-financial and/or therapeutic outcomes, including:
- to seek an appropriate award of financial compensation or redress;
- public affirmation that they were wronged;
- to seek a sense of justice, especially where an offender’s death means that the criminal justice system is not an option;
- to obtain a sense of closure;
- to secure an apology and a sense that the institution has been brought to account;
- to ensure that the specific institution implements policy and procedural reforms;
- to reduce the future incidence of child sexual abuse in institutional contexts; and
- to obtain personal retribution against their abuser(s) and the institution.
Unfortunately, the experience of many of knowmore’s clients is that for survivors of child sexual abuse, the civil litigation system is inaccessible, inadequate and non-therapeutic, and in some cases, highly re-traumatising. Many survivors will delay, avoid altogether or subsequently withdraw from a litigation-based process that by its inherent nature is extremely adversarial, costly, lengthy, public and re-traumatising. Additionally, the majority of knowmore’s clients who have had experience with civil litigation as a means of pursuing redress have encountered numerous practical and systemic barriers. In particular, survivors frequently experience huge barriers in accessing and retaining adequate legal assistance, and have often had negative interactions with the justice system.
One major barrier can be the institutions themselves, in which the prospective plaintiff suffered child sexual abuse. Sometimes they no longer exist, no longer hold assets and are unable to satisfy potential judgments – or their very structure gives them immunity from suit, as in the case of Trustees of the Roman Catholic Church v Ellis and Anor [2007] NSWCA 117, which gave rise to the so-called ‘Ellis defence’; i.e. that an unincorporated association, such as the Roman Catholic Church in the Archdiocese of Sydney, cannot, at common law, be sued in its own name as it does not exist as a juridical entity.
Current Australian law also makes it extremely difficult for a survivor to establish that an institution is vicariously liable for the criminal acts of its employees, such as child sexual abuse. Some offenders, such as volunteers and religious clergy, may not be regarded by the law as employees of an institution. These positions effectively limit the chances of a survivor recovering redress, given that many individual offenders are without assets, or beyond the jurisdiction, and may be ‘judgment-proof’ for all practical purposes.
A further array of procedural and evidentiary hurdles also undermines the chances of a successful civil claim. These include the expiry of limitation periods within which a survivor may sue; the onerous requirements of pre-action procedures; the difficulty in locating witnesses and obtaining historical records to support claims; proving that a survivor’s injuries and losses were caused by the abuse (given that many survivors suffer subsequent re-victimization, where abuse has been repeated and prolonged across multiple settings over their life); and the difficulty many survivors face in participating in early dispute or mediation processes with the relevant institution, in light of the power disparities that underlie sexual offending against children and the continuing adverse impacts of the resulting trauma.
Additionally, attitudes shown towards survivors by some lawyers and judicial officers do not always reflect an informed and appropriate understanding of the nature and extent of institutional child sexual abuse, and the nature of its impacts upon survivors. Many knowmore clients have related negative experiences regarding legal costs; receiving unrealistic advice about likely entitlements; and that participating in adversarial legal processes has minimalized, trivialized and invalidated their experiences of abuse. Indeed, participation in civil litigation places demands on individual plaintiffs that far exceed the capacity and emotional resources that most survivors can contribute, especially over a sustained period of time.
knowmore has identified a number of ways to reform and strengthen the civil litigation process to ensure more effective and just outcomes for survivors. One is to adopt an “enterprise risk” approach to issues of vicarious liability in cases of institutional child sexual abuse, so that where institutions are providing services to children that carry with them risk in the form of criminal conduct by employees, and that risk materializes and causes injury to a child, those institutions are held vicariously liable for that injury. Other reforms recommended include extending the vicarious liability of institutions to cover the conduct of persons in relationships akin to employment, and enacting a harmonious or national State and Territory legislative framework to exempt claims related to child sexual abuse from all statutory pre-action procedures and all statutory and common law limitation periods.
Improved digital records management standards and practices for government and non-government records likely to be relevant to claims of child sexual abuse is another important reform that would assist survivors to overcome a major barrier in the civil litigation system.
knowmore has also recommended that a publicly funded legal service should also be established to provide survivors of child sexual abuse with legal assistance to obtain compensation from institutions. Currently, survivors need to engage a private law firm to undertake their matter on a “no win, no fee” basis, with legal costs being recovered from any compensation paid. In the context of historic child sexual abuse matters, very few firms are prepared to undertake these matters, in light of all of the legal barriers outlined above.
knowmore also recommended too that, in addition to civil litigation reforms being implemented, an alternative, independent and national redress scheme be established to investigate and determine awards of compensation and other redress for child sexual abuse in institutional contexts and its harms and consequences.
knowmore’s full submission will be made public in due course by the Royal Commission on its website, under Issues Paper 5 and also on knowmore’s website.
knowmore’s advice line number is 1800 605 762.
Jenny Hardy is the Executive Officer of knowmore legal service.