Walker, Gayann; Ensor, Jane --- "Understanding the victims of child abuse" [2014] PrecedentAULA 51; (2014) 124 Precedent 46

---

UNDERSTANDING THE VICTIMS OF CHILD ABUSE

By Gayann Walker and Jane Ensor

As lawyers we need to understand the challenges facing clients who come to us seeking legal redress for child abuse. Gaining some understanding of the experience of survivors of abuse will allow us to optimise our interviews with them and, correspondingly, their prospects for compensation.

In this article we give an overview of what’s known about child abuse in Australia; then we discuss the sorts of evidence that can arise, including that from interviews with children; and we conclude with some practical considerations, including tips for ensuring that information obtained from your client is less likely to be challenged.

CHILD ABUSE IN AUSTRALIA

What does the maltreatment of children in Australia look like? Statistically, we know that an average of 286,730 notifications of child abuse per year have been made to child protection authorities Australia-wide over the past five years. In 2012, 40,962 children were on child protection orders, and 39,621 of those were in out of home care which includes foster care, care by relatives, and group homes.^[1] These figures are considered to be conservative due to the private nature of the crime, which results in its under-detection and under-reporting. They do not include non-child protection cases seen as police matters.

The types of child maltreatment reported, from most common to least common, are emotional abuse, neglect, physical abuse and sexual abuse. Girls are twice as likely to be the victims of substantiated sexual abuse Australia-wide, and three times as likely in Western Australia. Aboriginal children are eight times more likely to be the subject of substantiated reports than non-Aboriginal children.^[2]

With the Royal Commission into Institutional Responses to Child Abuse, the media spotlight has been on sexual abuse of children by persons, other than family members, in an institutional setting. It is significant and important that these experiences of child abuse are heard and acknowledged, so that not only can institutional care be improved for the future, but also so that others have confidence that when they disclose abuse, they will be believed. However, most abuse occurs in the family setting. Statistically, the typical offender in child sexual abuse cases is an adult male (90 per cent), who is a father or stepfather (13.5 per cent), other family member or relative (30.2 per cent), family friend (16.9 per cent), neighbour or acquaintance (15.6 per cent) or a person otherwise known to the child (15.3 per cent).^[3]

The causes of child abuse

Child abuse is thought to be caused by a number of factors, including the parent’s problems with coping and self-control, inadequate knowledge of child development resulting in unrealistic parental expectations, and poor ability to empathise with their child. Drugs, alcohol, poverty and social isolation of the family may contribute. The age of a child and their stage of development will also impact on their likelihood of being abused, with younger children being more vulnerable to abuse. With sexual abuse, a view of masculinity involving domination of a child may be an additional risk factor.^[4] For Aboriginal communities, a further underlying cause is believed to be ‘unresolved grief associated with multiple layers of trauma which has spanned many generations’.^[5] People have suppressed distress to survive, and a form of coping mechanism is expressed through trauma in the form of internalised dysfunctional family behaviour such as alcohol and drug abuse, suicide and family violence including child abuse.^[6] Factors contributing to high rates of violence include marginalisation and dispossession, loss of traditional culture, poverty, racism, alcohol and drug abuse, and the effects of institutionalisation and removal policies in Australia.^[7]

In understanding the reasons why child abuse is often under-reported or not disclosed for many years, it is critical for lawyers to understand its profound impact, and some of the difficulties this presents for lawyers trying to pursue civil claims for victims.

Sequelae of child abuse

Abuse does not have uniform effects on victims, and many variables, such as the child’s developmental status, coping style, family functioning and available community supports, will affect the impact that abuse will have on an individual.^[8]

It is clear, however, that childhood sexual abuse is a significant predictor of future poor health and social functioning, with poorer outcomes resulting from more severe and prolonged abuse. Additionally, those who have been sexually abused in childhood are two to three times more likely to be sexually abused in adolescence or adulthood.^[9]

There are obvious shorter-term effects. Physically, sexual abuse may result in sexually transmitted infections and pregnancy. Sexual abuse, unlike other types of abuse, often results in children acting out their abuse through inappropriate sexual behaviour or knowledge.^[10] In the long term, adults who have experienced childhood sexual abuse are more self-destructive, and have an increased risk of suicide attempts and ideation, deliberate self-mutilation, and chronic problems such as eating disorders, engaging in risk-taking behaviours, and substance abuse. A history of sexual abuse before the age of 18 is the single most important factor associated with serious suicide attempts in women. Psychologically, sexual abuse victims commonly suffer with anxiety disorders, post-traumatic stress disorder (PTSD), dissociation disorders, depression, and low self-esteem. An estimated 32–80 per cent of victims of childhood sexual abuse suffer from PTSD. Problems in interpersonal relationships occur frequently, and survivors may find it difficult to put trust in others. These problems can translate into later difficulties in parenting their own children.^[11]

There is increasing evidence that abuse can have lasting neurobiological effects. Severe prolonged abuse and neglect activates a prolonged biological stress response, which causes structural and functional brain changes to occur.^[12] These changes may impair decision-making, and cause impulsive behaviours and impaired ability to regulate emotions.^[13]

Delays in reporting abuse are unsurprising given the psychological impact of abuse. Studies in Queensland have indicated that in regard to disclosing abuse, 14 per cent of victims took 5–9 years to disclose, 15.5 per cent took 10–19 years, and 24 per cent took more than 20 years.^[14] The Royal Commission has identified, in its Interim Report, that survivors saw barriers to reporting at the time as fear that they would not be believed or would be seen as weak for permitting the abuse to occur. Even as adult survivors, they experience barriers to disclosure, which include ‘feeling shame, embarrassment, self-blame and self-doubt’ and a sense that others had it worse than they did.^[15]

In the context of what we now know about these sequelae, the limitation periods applicable to personal injury claims for child abuse seem too restricted. In Western Australia, Queensland and Tasmania the government response has been to establish ex gratia redress schemes to provide acknowledgment financially for past abuse in state institutions, but they have resisted embracing legislative change to the limitations periods for sexual abuse cases.

We need to be mindful that our client’s ability to progress their legal claims may be affected by the re-traumatisation that is likely to occur as a result of their contact with the legal system and the need to ‘relive’ their experiences to prepare their case.

PRACTICAL CONSIDERATIONS

While sexual assault against minors is commonly brought before criminal courts around Australia, civil claims are starting to become as frequent. Sexual abuse allegations can arise in the context of family law proceedings and it is in this area where we find most of the case law on using children’s statements in civil matters. Another large body of work is in abuse-in-care matters; that is, when a child is a ward of the state or territory or otherwise under the care of a particular organisation charged with keeping the child safe, and as a result of an act or an omission by the state, territory or organisation, the child suffers abuse of some type. Abuse-in-care matters can give rise to civil claims of negligence against the entity in charge of the wardship, as well as criminal injuries claims against the offender, depending on the legislation in the state or territory.

Ideally, a child subject to sexual abuse would immediately disclose it to the organisation responsible for their care which would then conduct a full investigation and report its findings immediately to the police, giving them a strong basis for a criminal investigation, and they would successfully prosecute the offender. But we live in a less than ideal world.

Why is it that children do not report abuse immediately? Children tend to develop coping strategies, rather than immediately disclose abuse. (This can lead to the child experiencing more prolonged abuse.) Other factors that commonly contribute to children not disclosing abuse include the child:

• being sworn to secrecy;

• being threatened by the offender;

• feeling responsible for the abuse;

• feeling shame and guilt;

• fearing family breakdown; and

• worrying that the offender will go to jail.

In some families, abuse is normalised and this will further contribute to a child’s failure to report abuse immediately.^[16]

Children are reluctant to disclose sexual abuse, and when they do, the fall-out and the unwanted attention can lead to the child becoming avoidant of the process. The child suffers the initial trauma, and then, during the course of (often bumbling) investigations, is re-traumatised. It is no wonder that the original disclosure can sometimes morph factually over multiple interviews by multiple individuals. By the time the police become involved the child’s story might have changed so many times that it is impossible, from a prosecutorial standpoint, to achieve the level of evidence needed for the ‘beyond reasonable doubt’ conviction.

Since so many negligence cases involving a child’s testimony settle out of court, it is nearly impossible to find one in a reported decision (if you know of one, please email us). However, a case in the Family Court of Western Australia is helpful. The case, Reisner v Reisner (No. 2),^[17] dealt with allegations by the mother that the paternal grandfather had interfered with her young daughter. The evidence of abuse included some fairly ‘smoking gun’ items such as blood spotting on the four-year-old’s underwear and the child’s disclosures of being ‘tickled on her bottom’. Interestingly, the Court noted that the child’s mother, who had been sexually abused herself, had heightened suspicions of, and receptiveness to the possibility of, sexual abuse of her daughter^[18] which may have affected her in examining and questioning the child about the events.

Each party had an expert in child-interviewing testify at the hearing. One of the experts criticised the police interview of the child. Areas of criticism included:

• failure to establish the cognitive ability of the child to give a statement;

• failure to obtain clarification of certain aspects of the child’s answers;

• failure of the officer to ask appropriate follow-up questions to gain clarification;

• failure to clarify inconsistencies when they arose; and

• the use of leading questions.^[19] (While we will see later that leading questions can be acceptable from a forensic standpoint, they must be used with care.)

In Reisner v Reisner, Judge Stevenson gave less weight to the statements of the child than to that of the paternal grandfather, citing a psychologist who assessed the child’s ability to give evidence in the criminal proceedings who said:

‘Overall [the child] could be capable of providing comment on personally experienced events; it is more a question of what she is talking about, the extent of the alleged events, and if the alleged event is abuse. As well, and in my professional expert opinion, it is a question of other emotional and cognitive factors which could influence [the child’s] comments.’^[20]

As practitioners, we need to take care to objectively analyse all the evidence we have before us. In the context of abuse cases, the horrifying conduct of third parties (that is, the perpetrators of abuse and others involved) can be so outside the realm of ‘normal’ human behaviour that we may need critical debriefing to stay composed.

In some cases, the parent may have ulterior motives. Occasionally a parent coaches a small child to report or disclose abuse that has not happened. The disclosure hurts the other party or puts them at a disadvantage in bargaining (for example, in a family court setting). In these cases, the damage to the child is the same as if the child had actually been abused.

When a child is coached in this way, the statement ultimately becomes the child’s reality. The child receives positive reinforcement for repeating what he or she is told which causes him or her to perpetuate the falsehood to obtain affection from an oftentimes dysfunctional parent. The child may also receive sympathy and attention from others as a result of the fake disclosure which, in an abuse context, is generally more motivation for the child to perpetuate the behaviour. Ultimately, this becomes the child’s reality when in fact the conduct did not occur at all.

It may be difficult to maintain a negligence claim against an agency when the alleged conduct is by the parent or guardian of the child. That is, of course, unless the manipulating individual is a registered foster carer, in which case you would have a potential claim that the agency did not properly screen the foster carer or left the child in a care arrangement that was unsuitable and likely to lead to psychological damage of the child. In circumstances such as this, it is important to have clarity on the objective documentation maintained by the agency, to corroborate that the abuse may have actually happened.

In addition to documentary evidence, in most cases you will have at least one interview of your client to review. When reviewing this interview, it is important to look for potential issues such as the order of questions, leading questions, the level of detail and signs of parental influence. The age of the child is also important as the question types should be tailored to the age of the child.

For children younger than about 10 years, most proper forensic interviews will begin by establishing that the child has the capacity to be interviewed. Trained interviewers will establish that the child knows the difference between truth and lie or may discuss the concept of secret. These questions are also important as they allow the interviewer to establish a rapport with the child. Then, the interviewer will generally move to more substantive questions, perhaps asking the child if he or she knows why the interview is taking place. Leading off with a question such as ‘Do you spend a lot of time with your father?’ might lead to an exchange such as the following:

‘Every weekend.’

‘Do you have fun with him?’

‘Sometimes.’

‘Does he do things to you that you don’t like?’

A ‘yes’ answer may be forthcoming in the event the child is not capable of understanding the gravity of the situation.

Obtaining details from children in this younger age group should be from short, easily answerable questions. For example:

‘My father licked me.’

Questioner shows body illustration and asks ‘Where did he lick you?’

Child points to between the legs.

‘Where were you when he licked you?’

‘In my room.’

‘What colour is your room?’

‘Blue.’

‘Where in your room?’

‘On my bed.’

‘Do you have a cover on your bed?’

‘Yes.’

‘What colour is it?’

‘Blue, red and green.’

‘Were you above or under that cover?’

‘Under.’

However, for older children leading questions should be avoided. For children older than about 10 years of age, it is best practice to use open-ended questions; for example, ‘Tell me about your time living with the Smiths.’ Based on the answers received, the interviewer can then formulate more tailored follow-up questions. If the child is reluctant to answer, it would be appropriate to ask a follow up question such as ‘Did you have good times with the Smiths?’ followed up by ‘Were there times at the Smiths that you didn’t like?’ This allows the child to have a modicum of control over the interview and can be empowering in the disclosure process. This is not to say that it is easier for children of this age group to make disclosures or be interviewed. If experience tells us anything, it is that this age group and especially early teenage years, are more likely to minimise the impacts of the abuse than their younger counterparts.

It is also important to mention that the age and gender of the interviewer are two crucial factors to consider when reviewing an interview. A teenage male is likely to have difficulty making disclosures of, say, being sodomised, to a young woman, while he might be more likely to respond to an empathetic older woman or man.

In the context of a negligence or criminal injuries compensation claim, it is highly likely that before interviewing your client you will have reviewed several volumes of information about their lives. You will know all of the incidents documented by the responsible agency. After reviewing the evidence available, you might recommend that the child be evaluated to determine whether the incidents of abuse suffered have caused psychological or psychiatric harm. If the interviews and statements in the documentary materials you have are not current, you might wish to interview the child yourself.

During this interview, you will need to assess what the child actually remembers about the specific incidents. But what happens if you ask the child about her time at the Smiths and all she has are positive memories of it, while you have just finished reading about how the Smiths have admitted to physically disciplining the child in an inappropriate way or making her stay in her room without food or water for hours on end, and Mr Smith has admitted watching the child in the bathtub while he masturbated? You are now in the territory of a repressed memory.

Repressed memories are a highly divisive topic in the realm of psychology. One group of psychologists believes that these memories will eventually percolate to the surface and that working through and discussing them is the most beneficial way to treat the trauma that most likely caused the memory to be repressed in the first place. Another group believes that the processes that the mind uses to perceive, store, retrieve and recount memories is not a perfect process, and techniques used to recover memories may be suggestive and result in confabulation and reporting of pseudomemories which can seem to be real memories.^[21]

From an ethical standpoint, if the child fails to remember incidents that could give rise to damages in a negligence claim, as practitioners, we would be prohibited from raising these issues directly with the child. In the context of obtaining a report from a psychologist or psychiatrist, it is appropriate to provide the practitioner with background reports of any prior mental health treatment. Those reports might contain previous statements made by the child about what happened that the child no longer remembers, and there might be documentary evidence that you can supply to the evaluator, but it is incumbent on the lawyer to advise the evaluator that the child, during a recent interview, did not recall the events as indicated. This allows the psychologist/psychiatrist to take into consideration the known events in terms of potential latent harm to the child, without the risk of re-traumatisation, especially in this non-therapeutic context.

A significant amount of psychological research has been done on appropriate protocols for forensic interviewing of victims of abuse. In this article we can only provide some practical guidance in dealing with the evidence that ends up on your desk, and how, if possible, you can obtain further information from your client.

Following the guidelines below will make it less likely that the information obtained from your client is challenged. These tips might also assist you in evaluating the quality of evidence contained in prior statements provided by your client.

• Tailor the interview to the individual, taking into consideration the age and gender of the client.

• Ensure the most appropriate gender and age of the interviewer.

• Have a second person present to act as a scribe, or record the interview (with the appropriate permission).

• Ensure the child is comfortable in the environment in which they are being interviewed. (You could, for example, ask the child whether they would be more comfortable in the boardroom, or if they would like to go for a walk or sit in the park.)

• Educate yourself to know what you are up against by having a thorough knowledge of the child’s history before the interview.

• Take care not to bring up repressed memories or remind the child of previous trauma they experienced.

• Ensure the child has the opportunity to attend a critical debrief after your interview.

• Take care of yourself; don’t underestimate the impact of the trauma exposure on your own psyche.

Gayann Walker is a lawyer in the US and WA with 12 years’ experience in litigating personal injuries. She practices within the general litigation department at Dwyer Durack in Perth, WA, focusing on civil claims arising from physical and sexual abuse and other personal injury matters. EMAIL [e-mail].

Jane Ensor is a senior lawyer with the Corruption and Crime Commission. Prior to her current role, she worked for the Department for Child Protection in Western Australia in its civil litigation area for 10 years, and had a leading role in establishing Redress WA, an ex gratia scheme to benefit the victims of historical child abuse and neglect in state care in WA. PHONE [phone] EMAIL [e-mail].

---

^[1] Australian Government, ‘Child Abuse and neglect statistics’, Australian Institute of Family Studies, May 2013, <www.aifs.gov.au/cfca/pubs/factsheets/a142086/index.html>.

^[2] Ibid.

^[3] Ibid.

^[4] Australian Institute of Family Studies, Issues in Child Prevention, No. 1, January 1994, <www.aifs.gov.au/nch/pubs/issues/issues1/issues1.html#cau>.

^[5] Janet Stanley, Katie Kovacs, Adam Tomison and Kylie Cripps, Child Abuse and Family Violence in Aboriginal Communities – Exploring Child Sexual Abuse in Western Australia for the Western Australian Government Inquiry into Response by Government Agencies to Complaints of Family Violence and Child Abuse in Aboriginal Communities, May 2002, National Child Protection Clearing House, Australian Institute of Family Studies.

^[6] Ibid.

^[7] Ibid at 18–19.

^[8] Vicky V. Wolfe and Jo-Ann Birt, ‘The Psychological Sequelae of Child Sexual Abuse’, in Advances in Clinical Child Psychology, Volume 17, edited by Thomas H. Ollendick and Ronald J. Prinz. Plenum Press, New York, 1995, at 233–63.

^[9] Australian Centre for the Study of Sexual Assault, Sexual revictimisation: Individual, interpersonal and contextual factors, May 2014, at 3.

^[10] Ibid at 238.

^[11] Dr Michael Dunne and Ms Margot Legosz (Ffrench), ‘The consequences of childhood sexual abuse’, Project Axis, June 2000, pp44–58.

^[12] Jennifer Delima and Graham Vimpani, ‘The Neurobioloical Effects of Childhood Maltreatment’, Family Matters, No. 89, 2011, Australian Institute of Family Studies, pp42–52 at 45-46.

^[13] Braquehais, Maria Delores, Psychological Sequelae of Child Maltreatment, Biological Psychiatry and Psychopharmacology, Vol. 13, No. 1, April 2011, pp21–2 at 21.

^[14] Queensland Crime Commission and Queensland Police Service, Project Axis – Child Sexual Abuse in Queensland: The Nature and Extent, 2000, Brisbane, p28.

^[15] Royal Commission into Institutional Responses to Child Sexual Abuse, Interim Report Volume 1, July 2014, at 50.

^[16] Benjamin P Matthews, ‘Judicial Considerations of Reasonable Conduct by Survivors of Child Sexual Abuse', University of New South Wales Law Journal 27(3), 2004, pp631-66 at (2).

^[17] [2010] FamCA 678.

^[18] Ibid at [130].

^[19] Ibid at [123]–[124].

^[20] [2010] FamCA 678, at p122.

^[21] Ian Freckleton, ‘Repressed Memory Syndrome: Counterintuitive or Counterproductive?’, Criminal Law Journal, Vol. 20, February 1996, pp7–24.