Survivors of abuse are failed by the legal process

The Royal Commission into Institutional Responses to Child Sexual Abuse has been inundated with thousands of Australians sharing their stories of abuse. Over 5500 people have attended a private session and a further 1500 are scheduled. Repeatedly, survivors have told not just the heinous stories about their abuse, but about the systems which allowed abuse to flourish. Despite all this, the processes for seeking redress frequently put survivors in an invidious position and the barriers to substantive compensation are overwhelming.

The Royal Commission has made over 1600 referrals to authorities, including police, but most perpetrators will never face justice in a criminal court. Survivors who wish to achieve redress are therefore only able to do so civilly under personal injury law, which is a poor fit for historical trauma.

A survivor of child abuse has very different needs to someone who has been injured in a car crash or fallen on a broken footpath; incidents that are the usual focus of personal injury law. When children are abused in their formative years by those in positions of power, it shapes their entire lives. Survivors often feel shame about what occurred and have been made to believe that the abuse was their fault, when nothing could be further from the truth. Countless victims have told of trying to seek help at the time and being shushed up or sent away, which compounds the trauma by demonstrating that those in authority can’t or won’t help them. Longer term, this makes engaging with the legal system problematic and stressful.

Importantly, those who have been abused often suffer from post-traumatic stress disorder – a condition which has an enormous impact on their lives. Many have been robbed of their ability to earn a living and cannot fund their own medical treatment. Seeking a monetary settlement is about replacing lost earnings so they can provide for themselves and their families, access the treatment they need, and obtain recognition of their suffering.

The process of pursuing redress through personal injury law, however, entails a power battle between the abused and the abuser. Institutions can aggressively fight claims and are almost always in a far more powerful position than the victim: they simply have more human and financial resources. As survivors try to rebuild their shattered lives, they bear the brunt of the system in which institutions manipulate this power advantage – the very same power which was exploited in the original abuse. Enduring this legal process is emotionally and financially draining; the process is re-traumatising. Many say that they feel like they are once again that powerless child: suffering, waiting, and hoping for it all to end.

Personal injury law does not adequately take into account how trauma works, nor the needs of those suffering PTSD. Most do not tell their stories until they feel safe to, which often takes many decades. Despite this, most jurisdictions imposes a statute of limitations which is usually only a few years after the victim reaches adulthood. Some victims have made the brave decision to come forward, only to be told that their chance to receive compensation expired decades ago. If the claim is statute-barred, that is a complete defence. The victim has no hope of a successful resolution. Some states, however, have recently abolished the limitation periods for institutional sexual and serious physical abuse, some have abolished it for sexual abuse only, and some other jurisdictions have committed to removing the time limit but have not yet passed the legislation. Abolishment of the statute of limitations nationwide is urgently needed to enable survivors to overcome the otherwise insurmountable challenges to seeking restitution.

Yet another barrier faced by victims is that they are required to shoulder the financial cost of legal action. ‘No win, no fee’ is a misleading term at best. If they wish to pursue legal proceedings, victims need to agree to pay the solicitors’ fees if the claim is successful, and to incur the burden of costs (such as professional reports and document lodging fees) regardless of the outcome. If a victim withdraws from the proceedings before a conclusion is reached because it is too distressing to continue, then the ‘no win, no fee’ does not apply and the victim is required to pay fees and other costs in full, which can easily run into tens of thousands of dollars.

In this battle between the victim’s lawyers and those of institutions, the bare truth of what happened is quickly swept away. Statutory declarations, medico-legal reports, earnings statements, cost agreements, insurance policies and legal loopholes dominate discussions, and frequently miss the key point. The raw, hard fact that children were abused and failed utterly by those who should have protected them is quickly forgotten by everyone except the victims and their families.

A national redress scheme is urgently needed to enable proper compensation for survivors. The key aspect of a national redress scheme is that victims would not be in a battle with the very institution and individuals that harmed them; their claim would be assessed by an independent body, focused on the needs of the victim. The removal of the power struggle is critical in minimising the re-traumatising effect of seeking justice. This would also give those who were abused in institutions which no longer exist the opportunity to seek redress, and would include direct personal responses and ongoing counselling and psychological care, as well as a monetary settlement. The Royal Commission has recommended that a national redress scheme be established no later than July 1 2017. It is critical that the nation’s politicians seize this chance to undo some of the harm that has been allowed to continue for so long.

In the meantime, victims and their families are left to fend for themselves. Some have criticised the proposed scheme for its limitations: it may only cover sexual abuse and not physical abuse, and the cap on payments of $200,000 is too low.

The Royal Commission is due to conclude at the end of 2017. It is critical to note that registration for a private session closes on 30 September 2016. Victims who have been considering coming forward are urged to contact the Royal Commission if they feel able, to ensure that their story is heard and that they are shown the respect and compassion they deserve. It is essential that all the recommendations from the Royal Commission are implemented in full. As a nation we have failed the victims of child abuse for decades. We must do all we can to make amends for the atrocities that were allowed to occur.


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Elizabeth Saunders

Elizabeth Saunders is a teacher, writer, advocate and reforming perfectionist.

Overland is a not-for-profit magazine with a proud history of supporting writers, and publishing ideas and voices often excluded from other places.

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  1. Hello,Do they not know that the whole true story if Neerkol in Rickhampton will never fully come out. We will all take the horror to our graves because no one would ever believe some things that happened are beyond belief, even though I for one know much much more find it hard to believe myself yet I know these things happened. If I find it hard to comprehend along with others how do we expect you normal people to believe it. My case is being investergated but will I get justice I don’t know , I do not trust the oddp nor do I trust those in higher places so I just have to go through a process which I feel is being drawn out I also feel they are taking to long to investergated my case, I also feel they are waiting for the only living abuser from this home will die and the case will never be herd so you see they think we are stupid but I can see what they are doing yet I cannot push them to move quickly. I am left in limbo and my 5 plus decades living just to get justice may never happen and my life is hell . Every day and every night I wake up and go to sleep with it torturing me, I’m afraid to leave my phone in case I miss a call from the police I am living the nightmare all over again only it’s much worse now but who care . No one they only pretend to care . I’ve only ever asked for justice but the only justice in this world is for the abusers and it will never change. Thank you for letting me vent my rage . Margaret have a nice day

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