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May 2013 Responding to child sexual abuseChild sexual abuse is a serious concern for the community and the criminal justice system. It covers a broad range of sexual activities perpetrated against children, mostly by someone known and trusted by the child. Often this is a family member or family friend, or someone in a position of trust with a duty of care for children in institutions such as schools, churches, and sporting or recreational organisations. Less frequently the perpetrator is someone who works in an ancillary role as a cleaner or a driver or visiting professional. The underlying secrecy and betrayal of trust inherent in child sexual assault is a key element of the abuse and contributes to the often very long-lasting impact on the victims. In cases of institutional abuse, the betrayal of trust and failure to exercise the inherent duty of care for children goes beyond the deeds of commission by the perpetrator and extends to acts of omission by those in positions of power within the institutions and in the community who fail to protect the child from abuse when it is discovered and fail to act to stop abuse from continuing. The circumstances in which children have been and are sexually abused within societal institutions, the impact of this abuse, and the responses to disclosure of their abuse by those involved in these institutions is now the subject of three major inquiries in Australia. These are, in order of their establishment over the last year, the Victorian Parliamentary Inquiry under the aegis of the Family and Community Development Committee; the NSW Special Commission of Inquiry into matters relating to the police investigation of certain child sexual abuse allegations in the Catholic Diocese of Maitland-Newcastle, headed by Margaret Cunneen SC; and the national Royal Commission, headed by Justice Peter McClellan together with five other commissioners.
The purpose of this article is to provide some context to these inquiries and recent developments in NSW law reform and policy. In particular, it addresses the issue of delayed reporting by children who have been sexually abused—delays that frequently extend into adulthood—and the difficulties the criminal justice system has in dealing with this. All three inquiries are receiving evidence from those who are willing and able to speak of their experiences and knowledge of child sexual abuse in a range of institutions over a number of decades. An unknown but probably large number of victim/survivors of abuse are unlikely to come forward to such inquiries; nevertheless the media reports about the inquiries and the stories told by others may trigger memories for them and cause them pain and distress. A robust body of research indicates that delayed reporting is common among children who have been sexually abused, with many taking years to report. Some may never tell anyone of their experience though their mental health and lack of well-being may indicate the adverse effects (Cutajar et al. 2010; De Bellis, Spratt & Hooper 2011; London et al. 2005; O’Leary & Gould 2009, 2010). There is considerable evidence that males are more likely to delay their disclosures of abuse than females; for males abused as adolescents by clergy, the average time to report the abuse in several studies is reportedly about 25 years (see, for example, John Jay College of Criminal Justice 2004; Parkinson, Oates & Jayakody 2010). If child sexual abuse is not reported soon after it occurs and during childhood, it appears that various factors may prompt disclosure later in life—for example, the birth of a child, the break-up of a relationship; receiving support, counselling and recovery; and media publicity about other cases. The impact of child sexual abuse is often long-lasting and includes a range of adverse consequences for mental health and adjustment in childhood, adolescence and adulthood. Not all victims experience these difficulties. Teasing out the effects of child sexual abuse is complex and may be complicated by other adverse experiences in childhood and adulthood (including being victimised again). Aspects of the abuse, including the relationship with the perpetrator and the betrayal of trust, the age and gender of the child, and the particular form of abuse as well as others’ reactions to and handling of any disclosures, appear to be important factors. Family support and strong peer relationships have been found to be important in buffering the impact (Cashmore & Shackel 2013). The way the complainant is treated by the institution and by the criminal justice system, if the complaint proceeds to a prosecution, is likely to be a crucial aspect of the complainant’s experience. What do those who decide to come forward need and expect from the institution and from any prosecution or systemic process? Likely to be high on the list are understanding and compassion, acceptance of responsibility, and some means of restitution, compensation, and action to ensure that it does not happen to others.
There is strong evidence, however, that the experience of complainants following disclosure and formal reporting is often highly unsatisfactory, adding further injury and insult to the original abuse (Colton, Vanstone & Walby 2002). Complainants report that giving evidence and being subjected to detailed and gruelling cross-examination, despite legal reforms to contain the most egregious aspects, is a secondary form of abuse. The courts often have difficulty with delayed reporting and a number of rules of evidence and other provisions and misconceptions about children’s response to child sexual assault cast doubt on the reliability and credibility of such evidence (Connolly, Price & Gordon 2009; Cossins 2010–11; Flatman & Bargaric 1998; Shackel 2009). Even where rules of evidence, for example, allow for the introduction of expert evidence as to the reasons why a complainant, and particularly a child, might delay telling anyone, often for years, about their abuse, such evidence is usually not utilised or is deemed inadmissible (Australian Law Reform Commission 2010). The Victims Rights and Support Bill, legislation currently before the NSW Parliament, as well as other proposed changes to policy and practice, have been causing considerable anxiety among victims, their lawyers and advocacy groups. Changes to the Victims’ Compensation Scheme will reduce the maximum compensation payout to victims of crime from $50,000 to $20,000 including legal fees, although the government claims that the changes will allow earlier payments and avoid the delays of the current scheme. Meanwhile, Legal Aid NSW has announced that it will not fund any new compensation cases for victims of institutional abuse. (The Bill’s proposal to require child victims to make a complaint within ten years of their eighteenth birthday was removed by amendments proposed by independent MLCs following public outcry. If this requirement had been legislated, many historical child sexual assault matters currently being prosecuted, and many of the abuses revealed by complainants who are likely to come forward to the Royal Commission, would have been barred from any compensation following the investigation of their complaint.) These changes come in the wake of the establishment of the Royal Commission and in the absence of systematic evidence about the trends or the outcomes of criminal proceedings in historical child sexual assault matters, though it is clear a substantial number of cases involve long delays in disclosure and reporting. There is very little reliable information about the likely outcome of a criminal prosecution if it proceeds to guide both the complainant and the professionals involved. There are no statistics on the profile of historical child sexual assault matters in the prosecution process and no information about the likelihood of a conviction. There is no research that maps the prosecution process with varying degrees of delay in reporting and identifies the unique dimensions of ‘long delayed reporting’ or ‘historical child sexual abuse’. There is no statistical information about the prevalence, trends and length of delayed reporting. The NSW Director of Public Prosecutions reports anecdotally an increase in these cases and that they now constitute a substantial proportion of their caseload but reliable information is needed to establish the facts.
In light of these changes, it is all the more important that there are other avenues for restitution and recovery for those who have been harmed as a result of child sexual assault at the hands of those who should have been their carers, protectors, teachers and their spiritual and community leaders. It is critical that there are processes to prevent or at the very least to minimise the risk of further abuse of children in these circumstances. This includes children with disabilities who are more likely to be abused and less likely to be heard and believed (Stalker & McArthur 2012). As Children with Disability Australia pointed out, the risk of abuse is higher for children who
These are precisely the circumstances in which institutional abuse occurred and was able to go on unchecked in the past (Cashmore, Dolby & Brennan 1994; Irenyi et al. 2006). What have we learnt about preventing institutional abuse and supporting those who have been subjected to it? What improvements can be made in the way such matters are prosecuted so that complainants are not subject to secondary victimisation? What forms of restitution might be helpful? How reliable is the evidence base for treatment and interventions for children and adults who have been sexually abused in childhood? To what extent are measures such as Working with Children checks for employees and volunteers working with children, as well as programs that aim to teach children protective behaviours, effective in protecting children? Are these and other preventive measures able to prevent, not just respond reactively years after the event, to the opportunistic behaviours of abusers who exploit opportunities to access and groom children for abuse? To what extent do the ‘new institutions’ which are much more diffuse in form and governance, allow access to children and grooming behaviours, for example via social media and online measures that are difficult to detect and control? These are a few of the questions facing the various commissions of inquiry and governments and agencies working with children and responding to those who have been harmed. REFERENCESAustralian Law Reform Commission 2010, A National Legal Response (ALRC Report 114). Cashmore, J., Dolby, R. & Brennan, D. 1994, Systems Abuse: Problems and Solutions, NSW Child Protection Council, Sydney. Cashmore, J. & Shackel, R. 2013, The long-term effects of child sexual abuse, CFCA Paper No. 11, Australian Institute of Family Studies, Melbourne. Colton, M., Vanstone, M. & Walby, C. 2002, ‘Victimization, care and justice: Reflections on the experience of victims/survivors involved in large-scale historical investigations of child sexual abuse in residential institutions‘, British Journal of Social Work, vol. 32, no. 5, pp. 541–551. Connolly, D.A., Price, H.L. & Gordon, H.M., 2009, ‘Judging the credibility of the historic child sexual abuse complainants: How judges describe their decisions’, Psychology, Public Policy, and Law, vol. 15, no. 2, pp. 102–123. Cossins, A. 2010–11, ‘Time out for Longman: Myths, science and the common law’, Melbourne University Law Review, vol. 34, no. 1, pp. 69–91. Cutajar, M.C., Mullen, P.E., Ogloff, J.R.P., Thomas, S.D., Wells, D.L. & Spataro, J. 2010, ‘Psychopathology in a large cohort of sexually abused children followed up to 43 years’, Child Abuse & Neglect, vol. 34, no. 11, pp. 813–822. De Bellis, M., Spratt, E.G. & Hooper, S.R. 2011, ‘Neurodevelopmental biology associated with childhood sexual abuse’, Journal of Child Sexual Abuse, vol. 20, no. 5, pp. 548–587. Flatman, G. & Bagaric, M. 1997–98, ‘Problems in prosecuting cases involving historical child sexual abuse: The Victorian experience’, Deakin Law Review, vol. 4, no. 1, pp. 1–20. Irenyi, M., Bromfield, L., Beyer, L. & Higgins, D. 2006, ‘Child maltreatment in organisations: Risk factors and strategies for prevention’, Child Abuse Prevention Issues No. 25, Australian Institute of Family Studies, Melbourne. John Jay College of Criminal Justice 2004, The Nature and Scope of Sexual Abuse of Minors by Catholic Priests and Deacons in the United States, 1950–2002, United States Conference of Catholic Bishops (USCCB), Washington, DC. London, K., Bruck, M., Ceci, S. & Shuman, D. 2005, ‘Disclosure of child sexual abuse: What does the research tell us about the ways that children tell?’, Psychology, Public Policy and Law, vol. 11, no. 1, pp. 194–226. O’Leary, P. & Gould, N. 2009, ‘Men who were sexually abused in childhood and subsequent suicidal ideation: Community comparison, explanations and practice implications’, British Journal of Social Work, vol. 39, no. 5, pp. 950–968. O’Leary, P., & Gould, N. 2010, ‘Exploring coping factors amongst men who were sexually abused in childhood’, British Journal of Social Work, vol. 40, no. 8, pp. 2669–2686. Parkinson, P., Oates, K., & Jayakody, A. 2010, ‘Breaking the
long silence: Reports of child sexual abuse in the Anglican Church of
Australia’, Ecclesiology, vol. 6, no. 2, pp. 183–200
[Online], Available: Robinson, S. 2012, Enabling and Protecting: Proactive Approaches to Addressing the Abuse and Neglect of Children and Young People with Disability, Children with Disability Australia [Online], Available: http://www.cda.org.au/_literature_132659/Enabling_and_Protecting_Issues_Paper [2013, May 28]. Shackel, R.L. 2009, ‘Understanding children’s medium for disclosing sexual abuse: A tool for overcoming potential misconceptions in the courtroom’, Psychiatry, Psychology and Law, vol. 16, no. 3, pp. 379–396. Stalker, K. & McArthur, K. 2012, ‘Child abuse, child protection and disabled children: A review of recent research’, Child Abuse Review, vol. 21, no. 1, pp. 24–40. Judy Cashmore AO is an Associate Professor in the Faculty of Law at The University of Sydney. Her research concerns children’s involvement in civil and criminal proceedings and other processes in which decisions are made about children’s lives. Rita Shackel is Associate Dean (Teaching & Learning) and a Senior Lecturer in Law at The University of Sydney. Rita has been working and conducting research on child sexual abuse both in Australia and internationally for many years and has published widely in the field. |
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