Ensuring justice for survivors of child sexual abuse in an institutional context is an issue the Royal Commission into Institutional Responses to Child Sexual Abuse is currently considering.
Royal Commission consultation paper
The Royal Commission released a Consultation Paper in January this year, received a record number of over 250 formal submissions and has held a public hearing and private roundtables on how to ensure justice for victims.
A lump sum payment of compensation to survivors of child sexual abuse recognises the abuse and that the institution failed to keep the person safe as a child. Financial compensation may assist survivors to find secure housing, obtain medical treatment and compensation for loss of earnings resulting from the abuse.
The Royal Commission is looking at how the most effective redress or compensation can be provided.
A final report on redress and civil litigation is expected to be released in the middle of this year. The three options for compensation currently available are limited payments through NSW Victims Services, compensation through redress schemes and civil litigation. There are problems with each of these options.
A national redress scheme is seen by the Royal Commission as most likely to ensure a just, fair and consistent outcome for all victims.
A national redress scheme could provide a more transparent process and consistent coverage for victims of child sexual abuse across all institutions. Difficulties include determining which institutions should contribute, whether it would be voluntary, and claimants who have already received financial compensation.
In January this year the Royal Commission recommended a $4.37 billion scheme over 10 years with the government covering about $2 billion.
Strong support for a single national redress scheme led by the Australian Government has come from survivor advocacy and support groups.
The Truth, Justice and Healing Council, appointed to oversee the Catholic Church’s response to the Royal Commission, has recommended a national redress scheme, funded by institutions and administered by the Commonwealth Government.
The Commonwealth Government in its’ submission to the Royal Commission does not support a single national redress scheme.
It refers to the complexity, time and resourcing required to establish a national scheme. It says that institutions must accept legal, financial and moral responsibility for failing to protect children. It is concerned that it not be the ‘funder of last resort’ where institutions are insolvent or have limited resources.
There is also a concern that compensation payments in a national redress scheme would be capped, with a suggestion of an average of $65,000. Damages could be significantly lower compared to damages Courts can award if a civil litigation claim is successful.
There are several obstacles to successful civil litigation. Time limits within which civil claims should be brought in NSW are between 3 and 12 years. Claims cannot be made against institutions that are not incorporated or no longer exist. Another issue is whether an institution can be held liable for the abuse of an individual perpetrator. Some institutions may have no assets or insurance. Where individual abusers have died or do not have assets there is no one to pay any award a court makes for damages. The Royal Commission is also considering at civil litigation, legislative changes that might be needed and whether a civil claim should be available as well as or instead of compensation through a redress scheme.
Submissions made to the Royal Commission point to the special nature of sexual abuse cases including delayed disclosure, on average 22 years after the abuse, and that psychological injury can impair a victim’s ability to bring a civil claim. In these cases the usual time limits should be removed or extended. The impact of the work of the Royal Commission is already being felt.
In November last year the NSW Government announced changes to assist survivors of child sexual abuse while in the care of the State. State agencies will not generally raise time limits as a defence to a claim.
State government agencies will also now consider resolving claims without litigation and negotiating early settlements.
In the 2007 Ellis case the Catholic Church successfully argued that there was no legal entity able to be sued for child sexual abuse by an assistant priest. In May this year the Archbishop of Sydney Anthony Fisher said that the Ellis defence was no longer a legal tactic used within his Archdiocese.
The work of the Royal Commission may provide an historic opportunity for survivors of child sexual abuse while in an institution to receive adequate compensation.