Submission of
SNAP Australia
Issues Paper 6
Redress Schemes
Royal Commission into
Institutional Responses to Child Sexual Abuse
4 June 2014
Royal Commission into Institutional Responses to
Child Sexual Abuse GPO Box 5283
Sydney NSW 2001
By
email: solicitor@childabuseroyalcommission.gov.au
Dear Sir/Madam,
Issues Paper 6 – Redress Schemes
Thank you for the opportunity to provide this
submission to the Royal Commission into Institutional Responses to Child Sexual
Abuse.
SNAP Australia
SNAP, the Survivors
Network of those Abused by Priests, is the world’s oldest and largest support
group for clergy abuse victims. We’ve been around for 25 years and have more
than 18,000 members in 79 countries.
Support for submission by Tzedek
SNAP congratulates
Manny Waks and Tzedek on their excellent submission regarding redress schemes.
SNAP endorses the points made by Tzedek in their submission as an excellent
summary of the needs of survivors of institutional child sexual abuse.
We particularly wish
to state our full agreement with Tzedek’s core points as follows:
1.4. Tzedek submits that redress schemes
should not be established to the exclusion of any other forms of redress, but
that redress schemes could have a role to play as part of a multi-faceted
approach.
1.5. To the extent that Tzedek supports
the establishment of a redress scheme, Tzedek would support a scheme with the
following features:
(a) Institutions must fund schemes, with
government compensation as a “scheme of last resort”
(b) Institutional leaders must be personally
liable for the actions or omissions of the institution, especially in the event
that an institution is unable to meet a redress obligation
(c) All schemes must provide ancillary
support to victims
(d) All schemes must operate according to
standards and processes applying nationally
(e) An independent statutory authority
must be established to monitor and enforce compliance
(f) Complainants must not be
precluded from simultaneously or alternatively seeking remedies from a court
This submission
builds on the work of Tzedek with additional points SNAP wishes to empahise in
the consideration of how to deliver a just and effective redress scheme.
Abuse of Power/Power
Imbalance
Despite being sexual
crimes, the core of child sexual abuse is an abuse of power by adults in
positions of authority over children. Children are targeted because of their
vulnerability, powerlessness, lack of credibility, and ease of manipulation and
coercion.
Which particular child
is chosen as prey is often more closely related to special vulnerability than
any other factor, even availability. Many predators go to great lengths, and
expense, to groom a particular child.
Once successful in
manipulating the child into a position where the child feels unable to avoid or
stop the attacks, the abuse can continue for years, with little fear of the
child being able to understand they have a right to complain, far less of
actually making a complaint.
A particularly
poignant example of this is the US case of Father Lawrence Murphy, who sexually
abused at least 200 deaf boys, particularly targeting those unable to speak, and
thus even less able than most child victims to ask for help to stop their
abuse.
Once the sexual
contact has ended, often after years of torture, the abuse of power, inflicted by
the institution protecting and enabling the sexual predator, continues.
Additional harm is inflicted through minimisation, disbelief, community
ostracisation, threats, blaming and shaming, and denial of access to justice or
assistance to recover.
The significant
additional damage inflicted by this campaign of often deliberate re-abuse is
traditionally ignored or underestimated.
When the few victims
who manage to speak out about our abuse demand justice or redress, our needs
are once again subjugated by manipulative, authoritative, well funded attempts
to evade financial, moral and criminal responsibility, and publicity and public
scrutiny, by the abusive institution.
All of these
additional abuses of power push victims ever further along the path of self
destruction that the sexual abuse set us upon. Far too many reach the ultimate
destination of suicide.
Role of redress in child
protection
In our experience, one part of healing is often
overlooked or minimised. Many victims desperately and sometime unconsciously
want to know or believe their suffering has not been in vain and that their
courage has helped bring reforms and protect kids.
This happens best in many cases if wrongdoers are
forced to experience harsh consequences, because victims rightfully suspect
that harsh consequences will make other institution officials think twice
before stone-walling prosecutors, decieving victims, shredding evidence,
threatening whistleblowers, discrediting witnesses, and protecting or moving
predators.
So it's not helpful - and usually hurtful
- when redress schemes are "watered down" out of alleged concern for
the financial well-being and continuation of institutions that "do good
work." In other words, institutions that have enabled and hidden horrific
child sexual violence must be held responsible, regardless of alleged
"hardships" this may cause that institution.
We do this when assessing individual penalties for
wrongdoing. (Few judges are moved to give criminals lighter sentences because
their families will lose a "breadwinner.") We should do this when
assessing redress schemes for child sex abuse victims hurt in institutions run
by reckless, callous and deceitful officials.
A Fair and Just System
There will no doubt
be clever submissions put forward arguing for fairness and equality between the
competing needs of survivors and the institutions which abuse, re-abuse and
silence us.
But there has never
been fairness. There has never been equality. There has only ever been abuse of
power. The role of redress is to change a wrong situation to come to a final
position of relative fairness.
In a just society
the powerful protect the powerless.
We grew up in a society
where the powerful see the powerless only as prey to be exploited. Where no one
but the already damaged survivors are brave enough to speak the unbearable
truth, and even when we do speak, no-one wants to hear or to help us.
The human rights of
Australia’s most vulnerable have traditionally been infringed and neglected,
our needs ignored and the strident demands of powerful and wealthy criminal individuals
and institutions have been acceded to for decades.
Institutions have
been allowed far too many extra chances to prove, as they claim, to have
“learned from the past”, “made significant changes”, be “doing so much better
now” or have introduced “new guidelines” or “zero tolerance”.
Where these claims
have been independently verified they are invariably found to be baseless and
self-serving. Children continue to be endangered, criminals continue to be
protected and enabled to reoffend and survivors continue to be denied
assistance and further harmed.
This is consistent
regardless of country or institution. The lack of justice, lack of
accountability and lack of transparency inherent in “in-house” systems of
redress, or point blank refusal of redress never does change and will not
voluntarily change.
Financial contribution to a redress fund must be compulsory for all institutions with claims brought against them by survivors or their families.
Standard of Proof
The combination of
our existing criminal standard of proof, laws of evidence, statutes of limitations,
and a range of other serious problems result in a criminal system which is far
too heavily weighted in favour of protecting powerful criminals and denying
their victims access to justice. Statistics from Australia and overseas point
to between only 0.3-3% of these crimes ever resulting in convictions.
Not only does it
fail miserably in delivering justice for survivors and safety for the
community, this system brutally punishes those already damaged by the crimes
committed against us. And the fact that the job of defence lawyers is made easy
by a toolbox of legal loopholes which provide numerous options to obtain a
miscarriage of justice serves as a warning that even superhuman courage, even
clear evidence of guilt, is not enough to stop a wealthy or powerful predator.
This system rewards
and protects predators, leading them to consider themselves “untouchable”,
“above the law” and encouraging re-offending. Strenuous protection of the
reputations of predators kept unconvicted by legal loopholes makes them even
more dangerous as they claim to have been exonerated, and parents allow them
access to their favourite prey.
This is completely
unacceptable when we are talking about such serious crimes. It is even more
unacceptable when this results in a society where most victims don’t report
because of insurmountable barriers to justice, where because known but
unconvicted offenders are enabled to keep their reputations they are enabled to
keep offending, and most importantly, where large numbers of Australian
children are routinely exposed to danger.
The criminal
standard of proof and the supporting legal system is an almost complete misfit
for this type of crime. The usual time taken to report, features of the
offences and type of damage inflicted all cry out for a more appropriate means
of proving guilt.
For the purposes of
redress it would be fairer to turn such a system on its head. Denying the vast
majority of victims access to redress, as well as to justice, is untenable.
Statutes of limitations and other such unjust barriers must never be used.
The number of false
claims is miniscule, so initially believing survivors, which is beneficial to
healing as well as just, is recommended.
We suggest forcing
abusive institutions to hand over all relevant documents, which, if successful,
will prove the best vehicle to confirm the truth of a survivor’s claims.
The only method by
which such documents are currently made available in Australia is through
investigations such as this Royal Commission.
In the US, large
numbers of incriminating documents have been revealed through civil actions,
which are effectively denied to Australian survivors. Even more documents have
come forward recently as US survivors have sacrificed financial compensation in
their settlements in return for the full truth being revealed.
These US documents
fully support the claims of survivors and add to the proof of just how
deceitful respected institutional officials are prepared to be in order to
protect themselves, the offenders, and the institution.
Unfortunately, given
the scale and consistency of self serving deceit routinely seen from
institutional officials in countries around the world, even under oath, there
is little point in questioning them, except to delay justice and distress
survivors.
As an example, in
the Catholic Church there is mounting evidence of longstanding and still
current Vatican policy requiring Bishops to coverup child sex crimes, and a
policy of lying to those outside the church called Mental Reservation.
Questioning such
officials is pointless as they have sworn their loyalty to the Pope above all
others and simply will not reveal the truth.
Other institutions demonstrate
similar behavior, whether or not they have enshrined their culture of coverup
in specific written policies.
Properly experienced
counselors are capable of discerning whether a claim of child sexual abuse is
genuine or not. This, coupled with the independent verification of basic facts,
would produce a far closer approximation to justice than the current criminal justice
system.
Bearing the Cost
Bearing the cost of
our harm has been pushed on to us, our families and the Australian taxpayer.
The only ones not contributing, except in a powerfully negative way, are those
who created the harm.
Redress which
continues this injustice, and does not hold the abusive institution financially
responsible will not be nearly as healing for survivors as knowing that the
cost of our healing is being borne by those who knowingly and deliberately
inflicted or enabled our harm.
Redress is needed
not just for the original sexual offences, but also redress specifically for
the equally harmful re-abuse. There is absolutely no justification for giving
abusive institutions a free pass in relation to this cruel and unnecessary additional
harm.
Plus by forcing
redress to be paid for covering up crimes, re-abusing survivors and denying
access to justice, this behavior will finally be discouraged instead of encouraged.
Choice and Control in the
Hands of Survivors
Children who are violated are deprived of
choices. Control of our
bodies, our world, our lives was stolen from us by abuse. Taking control of our
own lives, and indeed feeling as if we have a right to make our own decisions,
is a key path to healing.
Choice is a crucial
issue for survivors of child sexual abuse.
While certain key
principles are common to the ability to heal for most survivors, exactly what
will help a specific individual heal is unique and certainly not predictable.
The last thing
survivors need is a restrictive redress scheme which offers no options for what
is available or how it is delivered. Redress programs
should try to give victims many choices and not be structured in a “one size
fits all” manner.
It’s Not All About the
Money
The lies that are spread to undermine survivors
and ensure we are denied understanding or assistance are yet another part of
our harm. The lie that survivors are making up stories of abuse to
underhandedly obtain money from innocent institutions is particularly harmful.
Because of this some survivors refuse to accept
“blood money” or “dirty money” no matter how badly they need financial
assistance as a direct result of their abuse.
Other survivors see money as the only language
abusive institutions understand and can only feel that they have received
justice if a sufficiently large sum is paid to acknowledge the enormous harm
they have suffered.
As a direct result of our abuse many survivors
are also lacking crucial life skills, including literacy and financial
management, or are vulnerable to being manipulated or to feeling betrayed.
Some survivors are not helped by a lump sum
payment. Some will fritter it away, feel unable to manage it, blow it on drugs
or other addictions, lose it or be conned out of it, and be no better off as a
result.
Any redress scheme should be offered via properly
trained trauma informed support personnel whose objective is to work with the
survivor to identify what will help their healing, and decide what form any
redress should be delivered in.
Many survivors are unused to having any form of
choice and are unable to plan ahead, or have spent their lives in chaos simply
responding to the traumas of a nightmarish world of abuse. Just realising that
they have new options opening up to them to shape a better future and finally
achieve some of their potential, will take some time to absorb.
Examples we have seen where survivors have
identified what they need to rebuild their life include: the ability to pay a
divorce settlement to a former spouse so a business did not have to be sold;
the ability to study, start a business or buy a home; the ability to move to
the country because the city is too traumatic; the ability to financially
assist their children, or to ensure a disabled child’s future needs could be
met; or for older survivors a legacy to leave to their children because they
feel they had not been a very good parent.
Counseling, legal and financial advice, healing
and medical services, education and training, vocational guidance, rehabilitation
and a range of other services should all be available, and should be paid for
by the institutions.
Protection from
Exploitation
In Ireland, the redress scheme required survivors
to utilise and pay for lawyers to complete application forms. Many lawyers
overcharged survivors, extracting large portions of already inadequate redress
payments, for a fairly routine task.
Officials of some Irish survivor support groups
also personally profited while the lives of survivors often did not improve.
Tragically, in Australia we are already seeing
vultures, such as lawyers and certain unprincipled support groups, circling
around ready to feed off vulnerable survivors.
If a redress scheme is announced, their numbers
would quickly multiply.
Protection against callous and opportunistic
“service suppliers” profiting unfairly and relieving unsophisticated survivors
of their precious redress is vital.
In particular, religions exploiting the
vulnerability of still devout survivors to claw back redress payments through
supplying self serving and potentially harmful services needs to be considered
and prevented.
No Limit on Counseling
There should be no limits put on counseling. Abusive
institutions commonly promise counseling on the basis of “meeting the survivors’
needs” but actually enforce a non negotiable cut off point to save money, for
some reason usually after a manifestly inadequate 10 sessions. This enforcement
is sometimes applied so brutally, to discourage further requests for
assistance, that irreparable harm is done, leaving survivors worse off than if
they had never received counseling.
Real healing leads to less need for counseling,
but only the survivor and their counselor are the best judge of that need.
Counselors and other service suppliers should
never be associated with or controlled by the abusive institutions. We have
seen far too many examples of those associated with the institution pretending
to help survivors but inflicting significant additional harm in their attempts
to manipulate survivors into not reporting, not seeking assistance, or to blame
themselves for the crimes committed against them.
Such, often untrained, self serving efforts can,
and have, resulted in suicide deaths of survivors. Survivors must be protected
from exposure to this very serious danger.
Survivor’s own choice of counselor is vital. Working
with the wrong counselor helps no-one, and survivors should be encouraged to
reconsider their options if they do not feel they are making progress or their
needs change.
The scale of the harm caused is huge, but with
enough work with the right counselor, and other support, many devastated lives
can be turned around.
Becoming Contributing
Members of Society
Redress should not be viewed purely as an
outpouring of cash and services towards survivors.
Many of the children targeted by predators were
our brightest and best. Many of the survivors we have turned into are the most
courageous and determined people you will ever meet.
While many drag ourselves only half alive through
lives marred by suffering, chaos and dysfunction, some manage to heroically overcome
suicide ideation, depression, addiction,
dissociation and other serious problems. Some achieve good or even spectacular
success in business or other fields of endeavor, often before everything falls
apart as the long term effects of our childhood abuse kick in.
But we should never consider survivors as
hopeless cases, and a financial drain, despite the damage we have suffered.
Survivors are tough and hard working as well as fragile. Offered the right
assistance, the assistance we always deserved but were deliberately, callously
denied, many survivors will be eager to get off the disability pension to earn
an income and pay taxes.
Offered the medical support and healing services
we always deserved but were refused, we can become more functional and
contribute more to society.
And if survivors are offered healing rather than
re-abuse and abandonment, many of Australia’s most destructive and expensive
social problems will become less common, including drug and alcohol addiction,
homelessness, prison overcrowding, family breakdown, domestic violence,
depression and other mental health issues, eating disorders, and suicide.
International Treaties
A just, adequate and functioning redress scheme
is necessary to meeting Australia’s commitments under international treaties
such as the UN Convention on the Rights of the Child and Convention Against
Torture. The Committee Against Torture accepts the child sexual abuse inflicted
by Catholic priests and other religious as falling within their definition of
torture.
SNAP’s work with these UN Committees in relation
to the Vatican has raised the Committees’ understanding of the lack of adequate
redress in States Parties where the Catholic Church has been allowed free reign
to sexually abuse children. While both Committees hold the Vatican responsible
because of control exerted over the offenders and those who coverup and enable
these crimes, that does not remove the responsibility of the States Party where
the abuse occurred.
Australia is not currently in compliance with
either of these treaties in relation to redress for all institutional child
sexual abuse, not just the Catholic Church.
A SNAP Australia representative visited Geneva in
May 2014 to speak to the UN Committee Against Torture, giving examples from
Australia that have raised that Committee’s specific interest in Australia’s
compliance.
International
Responsibility for Redress
Both the UN Committee on the Rights of the Child
and Committee Against Torture have indicated their intention to hold the
Vatican, which claims to be an independent state, financially responsible for
redress for the child sex crimes of its priests, no matter where in the world
the abuse occurred.
So even if the Australian Catholilc Church claims
poverty, goes into bankruptcy, shifts assets and takes other actions to shield
assets from the justified claims of survivors, the Vatican can and should be
held ultimately financially responsible.
This principle could also be applied to other
international institutions.
The form of redress
Survivors from
Ireland, QLD and WA, where limited forms of redress have been made available
under the auspices of the state, report that many survivors feel betrayed or
retraumatised by an inadequate system. In some cases, no redress would be
preferable.
On behalf of
Australian survivors we urge the Royal Commission not to support an inadequate,
underfunded, restrictive, or less than independent redress scheme.
Any redress scheme, to be of benefit to
survivors, should:
Be funded by the abusive institutions
Acknowledge and include re-abuse by institutional officials as well as
the original child sexual abuse
Be flexible, offering a range of choices to suit individual needs, and
be able to work with other options including civil and criminal legal actions
Treat survivors respectfully and recognise that redress is what we
always deserved but were previously unjustly denied
Never be delivered by anyone associated with abusive institutions, and
all those who have contact with survivors should be trained in dealing with
trauma
Be subject to independent national standards, regulation and audit
Include ancillary services which should be paid for by abusive
institutions
Protect survivors from exploitation by lawyers and other service
suppliers
Offer assistance to family members such as dependents, and those whose
lives are impacted by the behavior of survivors denied access to healing, or
have lost loved ones to suicide resulting from child sexual assaults
Be able to be extended to include abuse beyond the Royal Commission’s
Terms of Reference, such as abuse of vulnerable adults, torture, physical
abuse, psychological abuse, spiritual abuse, and abuse within the family
For Too Long Survivors
Have Been Deliberately Denied Our Right to Heal
As a final point, SNAP Australia would like to
emphasise our strongly held belief that the abuse of power manifested in the
deliberate campaign to silence survivors and prevent our access to justice and
healing is just as dangerous and damaging as the original child sex offences
and should be treated just as seriously.
This
campaign exposes more children to danger and has resulted in many, many
preventable child sex crimes being committed.
This
campaign exponentially increases the harm suffered by those already damaged by
child sex crimes, and means that if we are ever offered access to healing, we
have a much more complex and difficult task before us.
This
campaign exists because of the belief by criminal individuals and institutions
that they are above the law. Despite an existing law in NSW that recognises that
the coverup of child rape is a crime, and documentary evidence of such a
coverup in many cases, there has never been a conviction for this crime.
That
is a national disgrace.
As
is the fact that, until now, many thousands of Australian kids have been
subjected to horrendous crimes right under our noses, and almost nothing has
been done to stop the crimes or help the survivors recover.
Even
this Royal Commission was denied to survivors for decades, despite the existence
of a 30,000 strong petition asking for a Child Abuse Royal Commission.
As
little as one or two years before this Royal Commission was announced, SNAP
Australia was still being told by our State and Federal politicians “Forget
about it. It’ll never happen.”
Not
“There is no need for it”.
The
need was always there. And was always ignored.
This
is our one chance to provide a remedy for the hurts of the past, so that many
courageous survivors can finally emerge from our cocoon of childhood pain and
learn what it is like to live. And show the world what we have to give.
But
we should never forget that for far too many, it is already too late.
Thank you again for the opportunity to provide you
with this submission.
Yours faithfully,
Nicky Davis
Leader
SNAP Australia