Legal Shield on Abuse 'Must Be Axed'

By Sarah Elks
The Australian
November 26, 2012

www.theaustralian.com.au/national-affairs/in-depth/legal-shield-on-abuse-must-be-axed/story-fngburq5-1226523822077

Chris Wetherall has rebuilt his life after the trauma of the child abuse he had experienced struck him about a decade ago. Photo by Lyndon Mechielsen

CHRIS Wetherall was just 11 when he was first sexually abused by his teacher -- later described by prosecutors as a "master pedophile" - at an Anglican school in the early 1980s.

But it wasn't until the general practitioner was 34, and then governor-general Peter Hollingworth was under pressure over his past handling of separate abuse allegations at Dr Wetherall's alma mater, St Paul's, and other Anglican schools in Queensland, that it dawned on him just how traumatised he was.

By then it was too late. The Anglican Church's Brisbane diocese invoked a legal defence to block Dr Wetherall's $3 million civil damages suit, arguing he had missed his window by failing to bring his claim by the time he was 21.

In a historic decision in 2008, a Supreme Court judge ruled Dr Wetherall could sue even though the statute of limitations had expired, but the Court of Appeal and the High Court backed the church's time-limit defence.

Now, Dr Wetherall wants to tell the federal government's royal commission that churches and other institutions should not be able to hide behind a legal loophole to avoid facing civil justice; he says all states and territories should abolish their statutes of limitation restrictions for child sexual assault victims.

"It's ridiculous to expect people to come forward at the age of 21, or younger," Dr Wetherall told The Australian. "It's so common that it's not until their 30s that people are ready to look at it. With child sex abuse, these things need to be aired in a civil court. The perpetrators may be found criminally guilty, but the systems and organisations in which these abuses occur have not been examined."

It was only in his 30s that Dr Wetherall's psychological hurt became apparent.

He began smoking marijuana and heroin, attempted suicide several times, and his marriage collapsed.

Now 44, Dr Wetherall has turned his life around; he is remarried and working in a medical practice on the NSW north coast. The Anglican Church eventually offered him a financial settlement, despite the court finding it was not legally required to do so.

His alleged abuser was convicted and jailed in the Northern Territory in 1994 and in Queensland in 2005 for abusing children in his care.

He was allowed to work in Queensland and the Territory in the 1980s and 90s after he was sacked from his South Australian teaching job in the late 70s for "disgraceful and improper conduct", but then reinstated.

Each state and territory has its own set of laws governing time limits on civil claims by victims of child abuse. In Queensland, it is three years after coming of age; in Western Australia, it is 25. In NSW and Victoria, the law differs if the perpetrator is a parent or close associate of a victim's parent.

In every jurisdiction, defendants can waive the time limit, or judges can grant an extension.

But lawyers, academics and survivors say victims are being blocked from civil justice all too often by the legal loophole.

Shine Lawyers partner Roger Singh, who has represented hundreds of sexual assault victims including Dr Wetherall, said governments should get rid of the statute of limitations for child sex abuse cases. "The churches must take responsibility for the hundreds and thousands of lives damaged," Mr Singh said.

"Rather than spending time and resources hiding behind legal defences, they need to take positive action to ensure people are properly compensated."

Legal academic Ben Mathews, at the Queensland University of Technology, said child sex victims often did not realise the extent of their injuries until years after the abuse. "The injuries are often things like depression and post-traumatic stress disorder, so they're psychological injuries which the person may not have diagnosed or may not understand the abuse caused it," he said.

"In cases where the evidence is fairly clear . . . for an institution to defend the claim by pleading the time bar, it compounds the abuse."

He said Canada had abolished the statute of limitations for child sex abuse cases.