Justice in limbo for sex abuse survivors

The Australian

December 26, 2020

By Paige Taylor

A Perth court’s decision to throw out a child sex abuse claim arising from the Royal Commission into Institutional Responses to Child Sex Abuse has raised questions about the viability of other pending cases.

The District Court of Western Australia has granted a permanent stay on the man’s claim against UnitingCare West and the WA government, meaning it will never be heard unless the man’s legal team can find grounds for appeal.

The accused abuser, a woman, died in 2012. The man came forward at the royal commission to give evidence he was abused repeatedly at a church-run children’s home in Perth in the late 1950s and early 60s. He was about to turn six when his “cottage mother” began abusing him at shower time.

“(The cottage mother) would soap us up and she would force slivers of soap up into our anus,” the accuser said.

“It felt sharp and it hurt. As time passed the size of the soap pieces (she) would push up our rectums became bigger, much bigger and more painful.”

The man’s claim reached the district court because in 2018, in direct response to the royal commission, the McGowan government passed laws allowing child sex abuse survivors to sue institutions in the name of their current office holders. The legislation included provisions to overcome difficulties survivors may face in identifying a proper defendant. Most significantly, the legislation wiped the six year statute of limitations on claims.

The man’s allegations included that the house mother introduced the boy to church men in regional WA and he stayed with them on numerous occasions. He said they gave him pink “medicine” and twice he woke up bleeding from the anus.

The court took into account the allegations were first made in September 2017, more than 50 years after the alleged abuse. The court found UnitingCare West was unable to make a meaningful defence.

“In circumstances where the allegation has never been made whilst (the house mother) was alive, neither (the house mother) nor the defendants had an opportunity to investigate,” the judgment states. “It is practically impossible for the first defendant to have any real opportunity to participate in the hearing, or contest the case or, if appropriate, admit liability.”

Justice Project director George Newhouse said the case was very disturbing “and the victim must be gutted by the decision”.

“No one would argue with the principle that court proceedings need to be fair but, where the allegations of child sexual abuse are serious, a survivor should be entitled to their day in court,” Mr Newhouse said.

“Perpetrators have been known to take their lives when their misconduct is exposed and many perpetrators die of natural causes in the period between the abuse and the commencement of court proceedings.

“I hope this decision doesn’t allow powerful organisations like governments and churches to escape accountability and responsibility for the harm done to children in their care, just because the perpetrator is dead.

“Court proceedings are re-traumatising for the survivors of sexual abuse and I hope that this decision doesn’t have a chilling effect on anyone brave enough to seek justice for being abused as a child.”

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