Child Sexual Abuse Reported by Adult Survivors

Legal Responses in England and Wales, Ireland and Australia

Sinéad Ring, Kate Gleeson, Kim Stevenson

• Publisher: Routledge
• Year: 2022
• ISBN:
  9780429886805
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

Child Sexual Abuse Reported by Adult Survivors is a wide-ranging and timely critical history and analysis of legal responses to 'historical' or 'non-recent' child sexual abuse (NRCSA) in England and Wales, Ireland and Australia, each of which represents an evolving and progressive approach to this important and complex issue.

The book examines the emergence of NRCSA as a distinctive social, political and legal phenomenon in each country and explores the legal responses developed to address its unprecedented challenges. Courts and parliaments in each country have reformed existing doctrine and practice and have created new ways of holding state and private actors accountable and new ways of addressing survivors' injuries. Criminal law, tort law, public inquiries and state reparations have all been to the forefront of these new legal responses, which have transformed law's engagement with NRCSA survivors and understandings of justice itself. However, despite this undeniable progress, the book identifies ways in which the legal responses developed in each country fail to deliver accountability and recognition to NRCSA survivors and argues that such failures betray the law's inherent ambivalence to delivering justice for these survivors.

Creating new insights into legal responses to this complex contemporary legal, social and political problem, this book will be of great interest to academic lawyers, political scientists and historians, as well as those working on related topics in criminology, sociology, social policy, cultural studies and gender studies.

1Introduction

DOI: 10.4324/9780429468162-1

Introduction

Adults seeking justice for the sexual abuse they suffered as children is one of the most important social, political and legal phenomena of the twenty-first century. Since the closing decades of the last century, Western countries have been faced with waves of revelations about sexual abuse perpetrated in past decades on large numbers of children by adults. Societies across Europe, North America and in Australia and New Zealand have been rocked by the gravity of the abuse revealed and by the sheer scale of the problem. Most shocking have been the actions of former pillars of society, including teachers, politicians, entertainers, clerics and politicians. Before the emergence of non-recent child sexual abuse (NRCSA)¹ as a social, legal and political issue, no country ever had to grapple with the challenges it poses, but today almost every Western country has been forced to face up to these challenges. Survivors of NRCSA have sought justice for the crimes they have suffered. Together with their advocates, survivors have come to law, demanding recognition of their abuse and for those responsible to be held accountable. This simple and legitimate demand in fact provokes unprecedented challenges to what were long-established norms of practice and doctrine in common law countries, such as historical hostility on the part of legal institutions, and legal doctrine, to recognizing sexual violence against children as a major social problem, or to seeing its impacts on victims as meriting a serious legal response. Significant challenges flow from the interval of time between the abuse and the survivor’s decision to seek a legal response. Traditionally, any ‘delay’ of the magnitude involved in NRCSA cases (usually over two decades, and sometimes as much as five decades) has been seen by lawyers as exceeding the institutional capabilities of the law; no court or jury or inquiry could ever judge events that were deemed too remote in time. However, parliaments and courts have been forced by survivors and advocates to reckon with these and other challenges inherent in NRCSA cases and to reform existing legal responses to address these challenges. Survivors have sought justice through each of the main legal domains. They have made complaints to the police, prompting a criminal investigation and possible criminal prosecution and trial. They have pursued individual abusers, abusive organizations and even state agencies through civil litigation. Survivors of sexual abuse in institutions have highlighted the roles of private organizations and the state itself in widespread child sexual abuse (CSA). Governments have responded using statutory public inquiries to write national official accounts and have established financial redress schemes and associated reparative measures underpinned by law. In each of these domains (criminal law/civil law/public inquiries/state reparations), courts and/or parliaments have introduced important reforms to how the law deals with the issues at the heart of NRCSA cases. The emergence of NRCSA as a distinct and significant legal, social and political phenomenon has come against the backdrop of important broader cultural shifts including: greater openness about domestic and sexual violence; heightened awareness of individual rights to be vindicated by the state (most pertinently rights to bodily integrity, dignity and privacy, as well as the right to a legal remedy for infringement of one’s rights); the rise of ‘the victim’ as a significant actor in legal and political discourse;² the increasing importance of testimony and memory as justifications for legal and political action;³ the neoliberal transformation of modern Western governance from the 1970s onwards;⁴ increased attention to individual and state responsibility for historical injustices; the changing role of organized religion and other institutions in society and changing social attitudes towards sex, sexuality and gender roles.

This book examines law’s engagement with NRCSA in three common law countries, England and Wales, Ireland and Australia. It argues that the reformed and new legal responses developed to address the legal and political challenges of NRCSA are truly revolutionary responses. Courts and parliaments in each country have reformed existing doctrine and practice and have created new ways of holding state and private actors accountable and new ways of addressing survivors’ injuries. Although the changes have not been straightforward or uncontroversial, we argue that they are unprecedented exercises in delivering justice to NRCSA survivors. At the same time, legal responses to NRCSA have transformed understandings of justice itself. However, despite this undeniable progress, the book identifies ways in which the legal responses developed in each country fail to deliver accountability and recognition to NRCSA survivors and argues that these failures betray the law’s inherent ambivalence to delivering justice for these survivors.

To appreciate why the reformed legal responses to NRCSA are so significant, and to understand the law’s continued ambivalence to delivering justice for NRCSA survivors, we need to understand where the problem of NRCSA originated, which is of course in the past. Hence, in this book, although we are concerned with NRCSA, we establish the conditions and parameters of the past that allowed CSA to occur and for welfare and justice responses to fail to address it at the time. Part I of this book explores how each country came to acknowledge the prevalence and significance of NRCSA, and how law and policy on child welfare and CSA have changed since the mid-nineteenth century in each. We highlight the pivotal role of survivors’ activism in prompting new forms of established legal responses, which we also situate within broader developments, such as the intense media and public focus on NRSCA and child protection ‘scandals’, the rise of victims’ rights discourse and seismic shifts in how governments perceived their role in child welfare and in how they perceived children. Child welfare in the past in each country has been shaped by a focus on class and race, a strictly policed gender order and nationalist ideas about the role of children in society. State intervention in children’s lives centred on institutionalization of children from colonized and marginalized families or forced migration (from England to Australia).⁵ Historically, the problem of sexual offending against children was known about and taken seriously in all three countries, but it was subordinated to other policy priorities. Children were not seen as rights-holders until late in the twentieth century with the adoption of the United Nations Convention on the Rights of the Child (UNCRC) in 1989, establishing that children have the right to protection from sexual and other forms of exploitation.⁶ Along with the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, the UNCRC was instrumental in shaping modern responses to child abuse. Rights discourse helped to re-frame children’s suffering as a criminal wrong requiring state action, and ultimately the foundation of political claims for recognition.

Part II of this book begins by focussing on what justice may mean in the context of NRCSA. Chapter 6 identifies the core components of justice for NRCSA survivors as involving accountability (of the abuser, the abusive organization or the state) and recognition of the survivor’s legal subjectivity and belonging to a broader community that take their experiences seriously. These insights underpin the analysis in the remaining chapters which explore key controversies at the heart of each form of legal response: criminal trials; civil litigation; statutory public inquiries and associated reparative responses of the state including financial redress. In each of these domains, survivors in each country⁷ have had to struggle constantly over years, sometimes decades, for justice. We do not provide a comprehensive coverage of all the relevant legal issues, which are complex, but instead, we focus on legal dilemmas that have faced the courts, legislatures and governments. We focus on the challenges posed by the passage of time inherent to NRCSA and how these have been met by legal responses.⁸ The defining legal concern in NRCSA cases is a significant interval of time between the abuse and the survivor’s decision to disclose their abuse and seek a legal response. Recent research conducted for the Independent Inquiry into Institutional Responses to Child Sexual Abuse in England and Wales (IICSA) indicates that two thirds of CSA survivors do not disclose contemporaneously.⁹ The Australian Royal Commission into Institutional Responses to Child Sexual Abuse found that on average, a survivor may take 23.9 years to disclose.¹⁰ NRCSA has presented important new challenges to both the criminal and civil justice systems where the interval of time is generally not a consideration in proceedings that do not involve NRCSA. Courts and parliaments in each country have come to understand this delay and its implications for evidence and procedure (and for the award of damages in civil litigation) through the ‘politics of trauma’.¹¹ Psychological trauma caused by abuse can cause enduring feelings of distress, shame and self-blame, and in some people, it may mean that they are not able to think about the sexual abuse until decades later. For others, the harms of the abuse, such as inability to work or form stable relationships, may not become apparent until well into adulthood. In examining public inquiries and state reparations for institutional abuse (Chapters 10 and 11), we draw on theories of transitional justice to consider broader political goals of truth telling, accountability, redress and non-repetition in this context. We are interested in how law may have been implicated in political efforts to construe NRCSA as a problem contained to the past rather than part of an ongoing present for survivors, their families and society. We also examine how a focus on institutional abuse in public inquiries has sidelined questions about other forms of NRCSA, most importantly, abuse within families.

Scope and structure of this book

The point of examining NRCSA and legal responses to it in England and Wales, Ireland and Australia is not to determine which country has provided the best or most preferable responses, but to explore, through comparative and historically contextualized discussion of legal doctrine, how they have developed in different ways and ask what insights and lessons might be gleaned from this comparison. Drawing on our respective disciplinary backgrounds,¹² we understand these countries as having connected histories,¹³ with circulations, exchanges and interactions of legal concepts and ideas about race, gender and sexuality linking them. Each is a common law jurisdiction and each professes a commitment to human rights.¹⁴ Each country has initiated important politico-legal responses in the form of landmark public inquiries. Ireland was the first country in the world to address ‘historical abuse’ on a national scale when it established the Commission to Inquire into Child Abuse (2000–2009) (‘the CICA’), which examined NRCSA alongside other forms of non-recent child abuse. Australia was the first federal state to deliver a national response and it established the first Royal Commission into Institutional Responses to Child Sexual Abuse (2013–2017) (‘the Royal Commission’). Informed by both these examples, the IICSA was established in 2015 in response to institutional NRCSA at local, regional, national and international levels and is about to publish its final report in 2022. Each country has also been confronted with the challenges of delivering state redress sch...

Table of contents

• Cover
• Half-Title Page
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• List of abbreviations
• 1 Introduction
• Part I The problem of non-recent child sexual abuse
• Part II Legal responses to non-recent child sexual abuse
• Appendix
• Index