43 / 448
GAZETTE
JANUARY/FEBRUARY 1996
Civil Actions for Child Sexual Abuse -
Statute of Limitations Problems
By David Goldberg B.L.*
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.
Who can be sued?
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
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.
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
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
supervisory authority. If the
supervisory authority is the
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.
Effect of Statute of Limitations'
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
27