The Gazette 1996

GAZETTE

JANUARY/FEBRUARY 1996

Civil Actions for Child Sexual Abuse - Statute of Limitations Problems

By David Goldberg B.L.*

against him; although for the victim, it might very well be therapeutic to obtain a vindicating damages award against the abuser, even if not recoverable. Where an abuser is not convicted, difficulties of proof of the abuse may arise in a civil law claim, particularly where the victim was very young when the incidents of abuse occurred and where no admission has been made by the abuser or where there is no independent corroborative evidence available.

employment. Therefore, it is unlikely, where the initial incident of abuse is carried out entirely in secret and no complaint is made to anyone by the victim, that vicarious liability could attach to the supervisory authority. But, if a supervisory authority, who has control, is made aware of the abuse or of the abuser's propensity to do wrong, and does nothing to remove or control him, liability does arise. Damages are recoverable against that institutional Church, its liability is dependant upon a true construction of the written documents, rules and orders of the Church, or by an investigation of the factual circumstances. A bishop, who is ultimately responsible for the priests in his diocese, is a corporation sole in law, and diocesan funds are under his control. Like any other corporation, the risks, liabilities, obligations and duties associated with the 'business' rest with the corporation and not generally with the individual. A claim against the named bishop of a diocese, as holder for the time being of that office, would lie if all the other considerations were resolved in favour of the victim. One of the most difficult areas in sexual abuse cases are the problems caused by the elapse of time between the beginning of the assaults and the commencement of proceedings. It is likely that a preliminary issue will arise as to whether the Statute of Limitations will be a bar. If victims are prevented from proceeding it is likely to create feelings reawakening the powerlessness and betrayal felt by them leading inevitably to immense frustration and even hopelessness. A claim must be brought within either three or six years of the alleged act (or acts) of abuse being the Effect of Statute of Limitations' supervisory authority. If the supervisory authority is the

The era of child sexual abuse as a civil law phenomenon is just beginning. The criminal law consequences have been widely discussed in recent times but the right of the victim to sue for damages, and whether the victim can be statute- barred because of lapse of time, have not been subjected to the same degree of public debate. A child sexual abuse victim usually suffers serious emotional and psychological injury, as well as physical. This can be permanent and require long-term therapy. Depending on the circumstances of the abuse, the victim's capacity to trust people may be inhibited, resulting in an inability to form or maintain a stable relationship in later life, be it a marriage, a parental or other relationship. Where the abuser was in a position of trust and abusing in secret, there is a likelihood that the victim will sublimate the memory of the traumas and not recount them to others until some other event, perhaps 30 years later. The victim needs the strength and capacity to consciously recall the abuse and to overcome any personal sense of guilt or responsibility. In recent times the focus has been on priests convicted of sexual offences against children. However, child sexual abusers can include parents, near relatives, sports instructors, child minders, teachers, doctors and other categories of people in positions of trust, as well as strangers. Subject to any Statute of Limitations issue, it is likely that there will be sufficient evidence to ensure that a convicted abuser can be sued successfully by the victim but such a convicted person would usually not be mark for any damages awarded Who can be sued?

David Goldberg, BL

The more difficult but more practical consideration is whether the abuser's employer or supervisory authority ("supervisory authority") can be sued as being vicariously responsible for the actions of the abuser. For example, in relation to an abuser who is a priest or a teacher, in what circumstances would the supervisory authority (e.g. the bishop of a diocese, the superior of a religious order, the board of management of a school) be vicariously responsible for the actions of the abuser? It is inconceivable that a person in a position of trust who is sexually abusing a child in his care or control would be acting within the course of his duties or within the scope of his

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