Published: 20 December 2018
Author: Kate Malone and Jessica Steele
For those abused as children, the first step is the hardest
In seeking legal advice for the abuse you suffered as a child, the first step is the hardest.
In this blog we answer common questions and misconceptions about this process.
Many survivors of childhood abuse will understandably only recount their experiences of abuse years after it occurred and discussing the details of the abuse they have suffered can be incredibly difficult to discuss, even with close family or long-term counsellors.
We understand that taking this information beyond this circle and seeking advice from a law firm can be incredibly daunting and intimidating. However, it can also be the beginning of a very rewarding journey, both emotionally and financially, for those victims who can finally obtain compensation and recognition of the abuse they have suffered.
Survivors should also be aware that there are numerous legal avenues available to them, which may provide them with recognition of their lived experience, financial compensation and access to counselling, as well as a formal apology from the responsible organisation – for more information on the different legal options see our previous blog.
Often survivors are unsure whether it is worthwhile bringing their story forward, as they may be unsure whether their claim has any likelihood of success, and this can contribute to the time it takes survivors to come forward.
Through this blog, we wish to acknowledge and clarify some very common questions which we hear from clients during our first contact with them. We do so in the hope that it will address the reluctance of other survivors to come forward to have their stories heard sooner.
I have never spoken to the Police about the abuse I went through. Will this affect my ability to proceed with a civil claim?
You can still proceed with a civil claim if you have not previously reported the abuse to the police, including if you do not intend on making a police report in the future. However, if you have been sexually abused by a friend, relative, priest or another person, we would strongly encourage all clients to report it to the police for two reasons if they comfortable doing so. First, a police investigation could bring the perpetrator to justice. Second, a criminal charge or conviction could help to uncover relevant evidence that may make it more likely that you will be successful if you intend to pursue a civil claim for compensation.
If you do not know the name of your perpetrator or your perpetrator is now dead, the police are unlikely to be able to undertake a criminal conviction. Nevertheless, we encourage clients to make contact with police to obtain further advice about this.
There were never any witnesses to my abuse, and I do not know of anyone who knew about it while it was occurring. Does this mean I won’t be believed?
The very nature of historical childhood abuse, particularly sexual abuse, often meant that it took place in secrecy; behind closed doors and when victims were alone and isolated. Therefore, it is not a barrier to your claim that you cannot bring forward any witnesses. Furthermore, we find that many perpetrators did not just attack the one victim and we may have acted for other victims of the same perpetrator.
We have extensive databases on the various settings in which child abuse took place, from children’s homes to foster care homes, youth training centres to juvenile detention, primary schools to parishes and beyond. We can combine information from our databases based on both publicly available information, findings of the Royal Commission into Institutional Responses to Child Sexual Abuse, and from statements of our previous clients (with their permission), to show that there was a prevalence and systemic issue in the place in which you were abused.
For example, you may have been abused by a school teacher and are unsure about bringing a claim as you do not know of any other victims. You do not know if the teacher is still alive, and you never reported the abuse to anyone in authority at the school, or to police. From your perspective, you might feel that your chances are slim.
However, upon investigation of your claim, we may discover that we’ve previously assisted several other students from your school, as well as other schools where the teacher was employed. We obtain statements from other victims, and from their families, who might be able to establish a pattern of the teacher’s predatory behaviour. Other victims may also have made complaints to the school board during their time as a student or may have made statements to the police resulting in criminal charges. From our perspective, you may, therefore, have a very strong case.
I spent time in numerous children’s homes, or foster placements, but I don’t know the names of all of the placements – can I still proceed with a claim?
It’s understandable and very common for survivors of abuse not to know a lot about the institutions in which they suffered abuse, either because they were very young at the time, or they might have gone through so many different institutions that they all blurred together.
Identifying the organisation who was responsible for your care, and whose negligence led to the abuse occurring, is a very important aspect of bringing an institutional claim. This process is referred to as identifying the ‘proper defendant’. You might have resided under the care of numerous organisations, but only seek to hold one organisation responsible for the abuse.
One of the first things we will do after opening a file for you will be to obtain records on your behalf from various institutions. This may include the Department of Health and Human Services, Berry Street and Anglicare, medical records such as those from hospitals or counselling services. This may also be from Victoria Police or a court if criminal investigations or proceedings occurred. These records might be 100 pages or 10,000 pages; it depends on the institution and how long you were in their care.
Then we complete the hard yards for you; we read through everything, construct a detailed summary of your placements over time and conduct thorough research into the various institutions to understand which organisation it was operated via and which organisations were tasked with overseeing your care.
We can then provide you with detailed advice on which institutions you were placed in, who the proper defendant is for those institutions, and how best to proceed with your matter.
What if I don’t know much about the person who abused me, or it was a complete stranger?
Previously, in order to bring an institutional abuse claim, victims were required to provide a significant amount of identifying information about the person that abused them, in order to progress their claim. This is no longer necessarily the case.
While it is helpful to be able to identify a survivor’s perpetrator, it is also possible to bring a successful claim if you were abused by a stranger, or a staff member or other person whose name you cannot identify.