Survivors who have pursued criminal claims against their abusers have faced a number of significant legal hurdles to date.
In August 2017, the Royal Commission into Institutional Responses into Childhood Sexual Abuse made a number of recommendations to address those hurdles. The speed in which those recommendations have been adopted has been, quite frankly, disappointing.
Last year, Judge McGill SC, a then outgoing Judge of the District Court of Queensland had this to say about his time as the presiding judge in a number of criminal trials:
- that it is a terrible rule that in most cases, a sex offender accused of assaulting multiple victims should be tried one case at a time
- that the worst part of his job was having to watch defendants acquitted because the jury did not know what he knew, that there were to or four or a dozen or more other victims waiting in the wings who could say, but were not allowed to say, “he did it to me too”
- That the major problem was that most paedophiles do not confine themselves to one victim, at least when there is no prompt complaint from the first
- That if there are two or more children in a household, for a jury to be told, in effect, that only one was abused paints a misleading picture
The NSW Parliament has recently passed the Evidence Amendment (Tendency and Coincidence) Act 2020 to address some of these hurdles by creating a special set of considerations in criminal trials relating to child sexual assault matters. Despite the delay, it is encouraging to see progress on this front and we expect that other states will pass similar legislation in the future.
A number of positive changes have been made since the conclusion of the Royal Commission into Institutional Responses into Childhood Sexual Abuse:
- Institutions now have a duty to take all reasonable steps to prevent the abuse of a child by a person associated with the institution while the child is under the care, supervision, control or authority of that institution
- A National Redress Scheme has been established to provide Redress to survivors of sexual abuse
- There are no longer any time-limits restricting a civil claim for abuse of a child under the age of 18
- Legislation has been passed to negate the Ellis Defence, a defence which previously allowed institutions to escape liability on the basis that there was no legal entity to be sued