The Royal Commission into Institutional Responses to Child Sexual Abuse winds up today when the last of its reports is published. The commission has rightly focussed the attention of the nation on the appalling consequences of child sexual abuse for victims, their families and communities. But while the royal commission may have brought a sense of justice and healing to many of those who have encountered abuse, when it comes to ensuring justice for the accused as well as the accuser, there have been some troubling recommendations. To be blunt, the rights of persons accused of child sexual abuse may be substantially undermined by this royal commission, and false accusations against individuals and institutions may increase as a consequence.
To be accused of child sexual abuse is obviously reputation-destroying and career-ending for most individuals. In our society, there is today arguably greater anger and community outrage at accused persons in this category of alleged offending than there is for those who are accused of murder or manslaughter. The royal commission surely knows this, yet its proposed national redress scheme provides no safeguards and protections to ensure that false accusations are limited.
The royal commission is proposing what is called a low proof, low threshold national redress scheme for survivors of child sexual abuse. On October 25 this year, Social Services Minister Christian Porter tabled a bill that sets out in detail how that scheme works.
Under this proposed ten year scheme there will be informal conferences and meetings, but no rights of external appeal to, for example, the Administrative Appeals Tribunal, from any findings made. Cross examining alleged victims will not be possible and nor will there be an opportunity to test the veracity of claims by, for example, forensically examining evidentiary material, as one would do in a court setting. But the most disturbing element is what evidence and proof is required for a claim to be accepted.
Under the national redress scheme the minimum requirement for an applicant in terms of evidence is a statutory declaration. No supporting material is required from applicants but they may present other evidence if they wish. The applicant merely has to show that there was a “reasonable likelihood” that the abuse occurred. This is a low threshold for an applicant to get over. In criminal cases a case must be proven beyond reasonable doubt and in civil cases the test is balance of probabilities. “Reasonable likelihood” is below both those commonly accepted standards of proof.
When an application is made under this informal process the institution involved — a church for example — will be asked to respond but a decision can be made without a response being received. When an application is approved an award of up to $150,000 can be made, and the institution must apologise, irrespective of its view about the claim.
There are times when speedy, non legal claim processes are appropriate. Consumer complaints are a prime example. But what we are talking about here is making findings against individuals and institutions which, as noted earlier, attract more opprobrium than murder accusations today. Yes, the process will be confidential, but unfortunately confidentiality is difficult to maintain in such schemes.
This royal commission has failed to respect the rule of law. In its zealous quest to deal with the undoubted problem of institutional child sex abuse it has jettisoned fundamental principles of fairness and justice.
The result of the proposed national redress scheme process may be that innocent individuals will find themselves fending off false allegations. This is no exaggeration given the low requirements in terms of evidence and standard of proof.
When a person or institution is hit with a claim under the national redress scheme, their legal rights are severely compromised. This is a palpably unfair and unjust state of affairs and one that could have been avoided if the royal commission had taken more care to ensure the rights of the accused.
No one cavils with the proposition that victims of sexual abuse are entitled to redress. But, in according justice to victims, great care needs to be taken in protecting fundamental human rights and legal principles. The royal commission has failed this test when it comes to how claims are to be dealt with going forward.
From the article: “To be blunt, the rights of persons accused of child sexual abuse may be substantially undermined by this royal commission, and false accusations against individuals and institutions may increase as a consequence.” – this is a disgraceful statement without basis in fact, it is nothing more than cheap and nasty conjecture and Crikey should call on an expert in this area to respond.
The Australian Institute of Family Studies addressed this issue in 2013: and the report discusses the reasons why police and lawyers persist in believing that there is a high incidence of false reporting although the evidence suggests otherwise.
A Canadian study from 2008 states: http://bit.ly/2j4FTRo
“On the basis of a representative sample of 7672 cases of abuse investigated by child protection authorities in Canada … only 4% of the 35% of unsubstantiated cases were deemed to be the product of intentionally fabricated false allegations. The rate was slightly higher in cases of sexual abuse (6%) compared with cases of physical abuse (4%), neglect (4%), and emotional maltreatment (2%). However, none of the false allegations of sexual abuse had come from the children themselves.”
Given that members of the legal profession have only been too willing to hold out their hand for their thirty pieces of silver from institutions such as the Catholic Church and then set about to aggressively defend sex offenders at the expense of the well-being of victims, it is only fair to react with scepticism to the claims made by Greg Barns that the Royal Commission “could create new victims”. His use of the word “victim” is in very bad taste and an insult to the work of the Royal Commission and the 8,000 or more personal stories submitted to the Commission. His accusation that the Royal Commission was engaged in a “zealous quest” and has “failed to respect the law” is a deliberate attempt to undermine the work and reputation of Justice Peter McClellan and his staff.
I accept that Greg Barns has some important points to make, but his deliberate use of the old myth of false accusations and his emotive and offensive language disqualifies his arguments from further consideration.
I hope that Greg Barns and Crikey see fit to issue an apology to those of us offended and disgusted by this article.
With respect Pjp, the Canadian report you reference discusses only false accusations of child sexual abuse when the victims are still children. It is regrettable but understandable that adults my misinterpret and claim sexual abuse when in fact none happened. But even in the Canadian study up to 6% of allegations were false. I assume you’d prefer the 6% of accused blokes’ lives be destroyed rather than have justice be done?
Greg Burns is, I believe, talking here about adult accusers. To believe that adults will never falsely claim to have been victims of child sexual abuse or that innocent men will be smeared by false allegations is, I think, wrong. People misremember things that happened long ago, people look for reasons why their lives have not turned out well and some bastards might actually want to make money out of it. Not all priests are mongrels and not all adults who claim to have been victims are angels.
Pjp, how would you ensure that allegations are truthful? Or do you believe that all allegations of child abuse are always true?
To allow a statdec to be proof of sexual abuse, with no avenue of appeal, is simply awful. To force an apology is Maoist.
I’m not a lawyer but this feels to me like an assault on our legal system.
What a spin doctor! The Catholic Church and many other institutions demonstrated no respect for the law of this country or the victims. To now claim the victims must be further traumatized to protect alleged perpetrators reputations is outrageous given that even if they personally did not commit the act, they certainly knew what was going on and participated in the cover up.
Sorry but they aren’t entitled to be considered even as collateral damage, just criminals.
What you said!
Greg Barne’s proposition is fair and reasonable and calls simply for justice for all parties. A more rigorous process is required before any individual is publicly accused. This may still allow payment of the compensation to a professed victim but a fair process which results in any doubt should entitle the accused to anonymity, unless a criminal case based on our law is raised.