The inherent problem with child sex abuse cases is that there is invariably a significant time gap between the abuse complained of and the victim initiating proceedings.
The usual scenario is that the victim was abused as a child, when vulnerable in every sense of the term, who then suppresses their memories of what happened. There are invariably feelings of guilt, shame and embarrassment. The history of abuse is often kept hidden from spouse and family. Their memories of the abuse are suppressed, and often very effectively. The mask, however, sometimes slips, perhaps, through what we call the triggering of memories. A common experience is for the unpleasant memories to be rekindled as a consequence of watching a television programme, or reading an article in a newspaper or, maybe, through being contacted as a result of a police investigation.
The “triggering” can have a dramatic effect. A victim may actually suffer a nervous breakdown and become very ill. Against such a background a victim will seek advice which culminates in them consulting a solicitor.
As a result of this rather circuitous route the solicitor has to form an opinion as to whether there is a viable case to pursue. Leaving to one side the issues of liability and causation, the question every lawyer has to ask him/herself is if a claim is going to be made will it fail because it is “statute barred”?
What do we mean by “statute barred”?
This is a serious question and one the victim and his/her lawyer needs to understand.
In the UK, and many Commonwealth countries, and fifty US states have limitation laws which effectively provide a cut-off date for when a claim for compensation can be brought before a court.
The purpose behind such laws is to prevent old and stale cases coming before courts which would find it difficult to do justice, and to provide commercial certainty.
A very simple example is that a victim who is run over by a careless motorist and injured will have a set period of time to bring a claim for compensation before a court, and this is usually three years (“the limitation period”). If the claim is brought after three years the victim is likely to be barred from pursuing it – “statute barred”, no matter how good a case it might be.
The same principle broadly speaking applies to sexual abuse claims.
A case brought in England and Wales will be governed by the Limitation Act 1980, and this says that it must be brought before a court within three years of the event complained of. By way of example this means that if the victim was sexually assaulted on the 1st May 2014 then a claim must be brought within three that is by the 30th April 2017. If the victim waits until 1st May 2017 he or she could find themselves “statute barred” in other words they have run out of time.
For an adult abused as a child the three year period runs from when they attained their majority (usually the eighteenth birthday).
If we left the position at that then hardly any victims would ever succeed in bringing a claim because the vast majority will not come forward until well after three years have expired.
In Ablett & Others –v- Devon County Council and the Home Office (December 2000) Sedley L.J. said:
“ Inevitably there is a problem of limitation in these proceedings. I say “inevitably” because it is the nature of abuse of children by adults that it creates shame, fear and confusion and these in turn produce silence. Silence is known to be one of the most pernicious fruits of abuse. It means that allegations commonly surface, and they do, only many years after the abuse has ceased”.
Against that recognition of reality Sedley LJ went on to say: where a defendant pleads limitation as a defence: “…In consequence two main groups of issues will form part of litigation. First, what was the date of each claimant’s knowledge for the purposes of Section 14 of Limitation Act 1980? Second, if that date of knowledge fell beyond the limitation period, ought the time bar to be lifted by virtue of Section 33 of the Act [should time be extended] ?”.
The courts recognise that victims are often prevented from coming forward because of the abuse they suffered, and so it would be unjust to deprive them of justice simply because they are out of time.
The Limitation Act 1980 allows a claim to proceed out of time in limited circumstances. The victim has to persuade the court he/she had good reasons for the delay in coming forward, and that a fair trial is still possible.
It maybe that the victim was suffering from a psychological condition as a result of the abuse that prevented them from coming forward before, and the court will examine this.
The court will have to be sure that it can do justice between the parties in spite of the passage of time. If key witnesses are dead, for example the alleged abuser, the court could be very reluctant to allow the case to go ahead. If on the other hand the key evidence is available and clear in spite of the passing of the years then the court may be persuaded to allow the case to proceed.
The key message is that limitation can stop a case in its tracks and that is why a victim should seek legal advice without delay.
The solicitor at the first meeting will ask the victim these questions:
- When and where did the abuse occur, and who were the abusers?
- Why have you come forward now?
- Have the police been involved?
- Are records available e.g. social services?
- Has the victim sought legal advice before, and what were they told?
The answers to these questions will help the solicitor advise the victim whether their claim is “statute barred”, and if it whether this can be overcome?
Some countries do not have laws that permit a claim to proceed “out-of-time”, others do but only in limited circumstances. This is a complex area of law and specialist legal advice is necessary.
For the individual State jurisdictions in Australia the limitation period is three years, but the time when it starts to run varies. Generally, the commencement of the period is either the date the action accrues which is likely to be the date of the assault, or the date of its discoverability which could be when the victim discovers they have been injured. These could be widely differing dates for an abuse victim.
All the Australian sates permit an extension to allow a claim to proceed “out-of-time” but the legislation differs from jurisdiction to jurisdiction.
In California there is a special provision for “childhood sexual abuse” victims which includes a cut-off date of their 26th birthday, unless they sue the abuser and they have three years to do so from when they realise that they have been injured.
This is a complex area of law and specialist legal advice is vital.