Will the Proposed Government Redress Schemes for Victims of Institutional Child Sex Abuse provide the outcomes sought by the victims? Maybe not.
The Royal Commission into Institutional Response to Child Sexual Abuse has examined the extent to which ‘justice for victims’ has been, or can be, achieved through previous and current redress processes and civil litigation systems.
This report contains recommendations in relation to the provision of effective redress for victims through the establishment, funding and operation of a single national or separate state and territory redress scheme and the provision of a direct personal response to survivors by institutions.
The Royal Commission has identified that the appropriate redress for victims include three things:
- A direct personal response by the institution if the victim wishes to engage with the institution, including an apology, an opportunity for the victim to meet with a senior representative of the institution and an assurance as to the steps the institution has taken, or will take, to protect against further abuse.
- Access to therapeutic counselling and psychological care as needed throughout a victim’s life, with redress to supplement existing services and fill service gaps so that all victims can have access to the counselling and psychological care that they need
- Monetary payments as a tangible means of recognising the wrong victims have suffered.
The Recommended Scheme:
- The criteria for compensation under the scheme:
- A person who was sexually abused as a child in an institutional context
- The sexual abuse occurred, or the first incidence of sexual abuse occurred, before the cut-off date. This is the date when the Royal Commission’s recommended reforms to civil litigation in relation to limitation periods and the duty of institutions, commences in NSW.
- Child sexual abuse will be taken to have occurred in an institutional context where it happens:
- On the premises of an institution;
- Where activities of an institution take place;
- In connection with the activities of an institution;
- In circumstances where the institution is, or should be treated as being responsible for the contact between the abuser and the applicant that resulted in the abuse being committed;
- If the abuse is occurs in the sphere of an institution in circumstances where the institution has, or its activities have; created, facilitated, increased, or in any way contributed to, (whether by Act or omission), the risk of abuse or the circumstances or conditions giving rise to that risk;
- It happens in any other circumstances where the institution is, or should be treated as being, responsible for the adult abuser having contact with the applicant.
- The standard of proof for determining applications for redress is the ‘Reasonable likelihood’.
- Victims will not need to deal directly with the institution in which they were abused.Victims will not face pressure from the scheme or the institution to make and resolve their claims quickly.
- Transparent and consistent criteria for Victims.
- Victims will be able to seek a review of any monetary payment they are offered.
- Victims will get support making applications and deciding whether to accept an offer of redress.
- A redress scheme should fund, at a fixed price, a legal consultation for an applicant before the applicant decides whether or not to accept the offer of redress and grant the required releases.
- No confidentiality obligations should be imposed on Victims for redress.
- Offer and fund counselling during from the stage of application through to the acceptance/declinature of any offer from the scheme, including a session of financial counselling if the victim is offered a monetary payment.
- Funding a legal consultation at a fixed price for the victim before they decide whether to accept the offer of redress and sign the Deed of Release that accompanies the offer.
- An application for redress would be deferred if the institution advises that it is undertaking internal disciplinary processes in respect of the abuse which is the subject of the application. The scheme may also have the discretion to consider the outcome of the disciplinary process, it if is provided by the institution, in determining the application.
- If a monetary offer is accepted, the victim will be required to release the scheme (including the contributing government or governments) and the institution from any further liability for the abuse.
- Monetary payments to recognise the seriousness of the hurt and injury that a survivor has suffered, and is recommended to be:
- a minimum payment of $10,000
- a maximum payment of $200,000 for the most severe case
- an average payment of $65,000
- Medicare expenses are to be repaid (if required) as part of the administration costs of a redress scheme.
- Monetary payments are not income for the purposes of social security, veterans’ pensions or any other Commonwealth payments. Those who operate a redress scheme should seek a ruling to this effect to provide certainty for victims.
- The institution in which the abuse occurred would pay the compensation. Then the Australian Government and state and territory governments should provide ‘funder of last resort’ funding for the redress scheme or schemes so that the governments will meet any shortfall in funding for the scheme or schemes.
The future for victims of institutional child sexual assault
The Royal Commission has stated that the Australian Government should determine and announce by the end of 2015 that it is willing to establish a single national redress scheme. In the first half of 2017, the redress scheme or schemes should be established and should begin accepting applications.
It is little wonder that Schools and Churches have embraced the Royal Commission’s recommendations. The scheme, as recommended, potentially reduces a victims entitlements to a maximum of $200,000 for the most severe case. This could result in a massive reduction of a victim’s entitlement from potential claims in excess of $1,000,000.
For so many victims of institutional child sexual assault, their lives have been dramatically and irrevocably changed as a result of the sexual assault and their future is bleak. After being sexually assaulted, children experience feelings of fear, anger, disgust, betrayal, humiliation and confusion. These feelings continue through the most difficult part of anyone’s life, puberty. As a result, their development into adulthood is shaped by their trauma of being sexually abused.
A lot of victims do not reveal what happened to them and so don’t face their feelings at the time of the assault. In some victims this only makes the trauma and psychological damage worse, and once they are able to reveal that they were victims of abuse, they are forced to face all of the feelings as though the assault happened yesterday.
Koffels is one of many firms which believe that the best outcome for victims would be to improve the current civil litigation system. The Royal Commission has called for such recommendations, particularly:
- The removal of strict time limitations. Limitation periods are a significant, sometimes insurmountable, barrier to survivors pursuing civil litigation and are inappropriate given the length of time that many survivors of child sexual abuse take to disclose their abuse.
- Imposing a non-delegable duty on some types of institutions for the deliberate criminal act of a member or employee of the institution, as well as for the negligence of that member or employee. Institutions should be liable for child sexual abuse by their members or employees unless the institution proves it took reasonable steps to prevent abuse.
- Adopting guidelines for responding to claims for compensation and in effect, operate as a model litigant in the manner in which they deal with claimants. The guidelines should be to minimise potential re traumatisation of claimants and to avoid unnecessarily adversarial responses to claims.
The most common type of victim who is going to be drawn to the Redress Scheme is a victim abused decades ago where establishing the liability of the Institution is going to be arduous.
The report is at the heart of why the Commission came into existence in the first place. Let’s hope that the Australian Government take this opportunity to do something which should have been in place decades ago.
It is unclear whether the Royal Commission intends to have both the Redress Scheme and civil litigation available as options for victims, although providing recommendations for both avenues of compensation seems to imply that they this is what they envision for the future. Only time will tell. In the meantime our advice to all victims is to commence civil litigation immediately.