Published: 07 April 2017
The reasons behind a surge in sexual abuse enquiries
Over the past four years, Ryan Carlisle Thomas has received a large number of enquiries from members of the public who were sexually abused during their youth. Some have been prompted to take action by the Royal Commission into Child Sexual Abuse (“the Royal Commission”), and others by the legislative changes, particularly in Victoria, which have made it easier to pursue compensation.
Yet confusion exists about which types of redress are possible.
To date, we have handled more than 2,500 cases for survivors of abuse. Almost all survivors find it a difficult decision to make whether to reveal the abuse they have suffered, understandably.
As a legal team specialising in institutional abuse we can help clarify in a client’s mind what the benefits and challenges are in deciding to seek restitution for abuse suffered, so that they do so with a clear understanding of the legal, as well as the emotional, consequences.
Now that the work of the Royal Commission is drawing to the end, with public hearings now completed and a final report due to be handed down in December, it’s worthwhile reflecting on the some of the events which have so emboldened survivors of child sexual abuse to come forward in such large numbers.
What might affect decisions to bring a claim?
Undoubtedly the Royal Commission itself has been a major catalyst for change in this country.
The public broadcasting of its hearings, along with the numerous media releases and research papers it has released on topics such as grooming and organisational cultures, has clearly emboldened people to come forward with their stories.
This was especially evident during the Commission’s investigations into State-run institutions such as Turana, Baltara and Winlaton; and religious bodies such as the Catholic Church, the Christian Brothers and the Yeshivah.
The coverage given by the media to the removal of legal hurdles to pursuing legal action has also had the effect of encouraging people to come forward with claims of abuse against institutions. One of the most prominent events, at least in Victoria, was the Victorian Government’s decision to reform statue of limitations legislation.
Lifting the statue of limitations for abuse claims
Having advised abuse survivors for nearly 30 years, we are aware that it often takes a substantial amount of time for survivors to disclose the abuse that they have suffered in institutions. And that there are numerous reasons why clients do not disclose their abuse or seek advice from solicitors.
Undeniably, a turning point in encouraging survivors to take action was the introduction of the Limitation of Actions Amendment (Child Abuse) Act 2015 (“the Amendment Act”) which removed unreasonable time constraints and promoted access to justice.
Prior to the Amendment Act, the Statute of Limitations previously operated in a way that barred claims to historical child abuse. Consider this, that children had only 6 years from the date of the injury to bring a civil claim for compensation; and adults had just 3 years from the date of injury to bring a claim.
Changes within the Catholic Church
Changing attitudes within the Catholic Church have led to a shift away from their previous hard line position in pleading the Ellis Defence. In a nut shell, the Ellis Defence has been relied upon by the Catholic Church to defend claims of historical institutional child abuse. The Catholic Church has previously relied on the Ellis Defence in the case of Trustees of the Roman Catholic Church v Ellis & Anor  NSWCA 117 arguing that that there is no legal entity to sue when a perpetrator has passed away or is no longer part of the Church.
Statements made by representatives of the Catholic Church, such as Cardinal George Pell, acknowledge that genuine claims to institutional child abuse should be properly dealt with. Following examinations by the Commission into the Catholic Church, on 22 May 2015, Archbishop Anthony Fisher OP for the Archdiocese of Sydney stated in an ABC Radio National Breakfast interview that now the Ellis Defence should not be relied upon by the Catholic Church so that it can ensure survivors of religious abuse are treated with justice and compassion.
We also note that the Catholic Church’s Truth Justice and Healing Council announced that the Archdiocese of Melbourne, the Christian Brothers, the Marist Brothers and the De La Salle Brothers help plaintiffs identify the proper defendant to sue in cases of religious institution abuse. We encourage you to read our post on the Ellis Defence if you would like to know more about it: https://rctlaw.com.au/legal-blog/2014/is-the-ellis-defence-now-dead-or-alive-and-well.
Are sexual abuse class actions an answer?
A level of public confusion persists about what legal action survivors of abuse can take for redress. For example, most people know that class actions exist. What isn’t understood is how difficult class actions are to establish in cases of institutional abuse.
Class action rules under section 33C of the Supreme Court Act 1986 (Vic) require that the claims of all people in a class need to be based on similar or related circumstances and give rise to a substantial common question of law or fact. It is difficult to establish common factors between all cases of institutional abuse because experiences differ, as do memories of when specific instances of abuse occurred.
What about the Commonwealth Government’s proposed compensation scheme?
When the Commonwealth-led compensation scheme was announced, that too led to both optimism and to confusion as to how justice was to be made available.
The scheme, which is not intended to become operational until at 2018, is intended to run for 10 years and will be delivered with a trauma-informed approach.
But specific information about how the scheme will operate is sketchy. No eligibility criteria yet exist, and nor is it agreed which institutions, if any, will choose to opt in to the scheme. More information about the proposed redress scheme see our commentary here: https://rctlaw.com.au/legal-blog/2016/queries-remain-for-abuse-compo-scheme.
Ryan Carlisle Thomas continues to agitate for clarification of how the scheme will operate, and how committed the Commonwealth Government is to its implementation.
What can you do if you have suffered institutional abuse?
Ryan Carlisle Thomas continues to represent thousands of people those who have suffered abuse within institutions. If you or someone you know would like more information about the nature of institutional abuse claims, please contact our office on 1300 366 441.
We can also help you, a family member or a friend who may have been abused and who is deciding whether or not to publicly come forward, to arrive at a considered and supported decision.
In addition, survivors should be aware that private hearings with the Royal Commission closed on 30 September 2016. You can share your story by writing to the Royal Commission at GPO Box 5283, Sydney, NSW 2001.
If you are experiencing emotional difficulty as a result of institutional abuse, we encourage you to contact Beyond Blue on 1300 224 636 or Blue Knot on 1300 657 380.