How limitation periods harm survivors of childhood sexual abuse

 
 
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Most cases of sexual abuse of children are never disclosed let alone reported to the authorities. This silence is compounded when the very laws intended to hold perpetrators to account prevent survivors from seeking justice.

Limitation periods — time limits on how soon a case must be brought after the offence, harm or injury occurred — do just this. Many survivors understandably ask themselves: why go through the trauma of reporting abuse if there is no means of securing redress or bringing a perpetrator to justice?

But there is nothing necessary about this barrier and an increasing number of States are now abolishing limitation periods as they come to terms with the scale of childhood sexual abuse that has taken place within their borders.

Why have limitation periods at all?

There are sound reasons for limitation periods in some situations. It tends to be more difficult to find strong reliable evidence years after an event: witnesses’ memories fade, documentary evidence may not be available or may no longer exist, and the evidence that does exist may be less reliable because of its age. This is a problem for complainants alleging they have been abused, but also for defendants - after all, many people understandably couldn’t tell you where they were one Tuesday six years ago.

Limitation periods also allow for certainty and finality in legal disputes. For cases against government agencies, they mean that policies can be effectively implemented without the threat of never-ending legal challenges and they prevent contract disputes arising from business relationships that have long since come to an end.

But can these considerations justify denying justice to adults who were sexually abused while they were children when the nature of the crime means that many children will take years, if not decades, to come to terms with what has happened to them?

Reform in the face of scandal

The answer to this question in many countries coming to terms with a history of widespread childhood sexual abuse has been an unequivocal no.

In the wake of inquiries into sexual abuse of children that follow public scandals, reform of limitation periods is particularly common. The Royal Commission on child sexual abuse in Australia began public hearings in 2013 and subsequently dedicated a chapter of its final report to redress and civil litigation for sexual abuse to limitation periods. Following the inquiry, several Australian states and territories launched reforms. Victoria removed limitation periods for civil claims relating to sexual or physical abuse of children in 2015, while New South Wales and Queensland followed suit in 2016.

This is a common pattern. When allegations arose of sexual abuse within the Catholic church in Guam, the territory responded by enacting a law to end limitation periods for child sexual abuse claims. The reform allowed survivors to come forwards and they did so in staggering numbers. As of July 2018, more than 170 cases were pending on the island. To put this in context, if the same proportion of the population brought forward cases in the United Kingdom, that would mean more than 68,000 individual cases alleging sexual abuse by priests being filed in just under two years.

A simple and rapid amendment

Once an inquiry has exposed the scale of the problem, it quickly transforms into a desire for action, and once the will to carry out a reform has built, the reforms themselves can be achieved reasonably quickly and with relatively simple legislation.

The Act that ended limitation periods for sexual abuse in the Australian state of Victoria contains only five sections and fewer than 1,000 words. The law amounted to a series of small amendments to existing laws on limitation periods. The legislation is also retroactive, so it abolishes relevant limitation periods, even if the limitation period had expired before the new Act came into force.

Such reforms are not limited to one type of legal system or legal tradition. In 2015, Argentina amended its law so that criminal limitation periods in sexual abuse cases start running only when a survivor is an adult and files a claim themself or ratifies a report made on their behalf. The same year, El Salvador abolished criminal limitation periods for the sexual abuse of children following a high profile abuse case. The reforms themselves took the form of simple Bills to amend the countries’ penal codes.

But the fact that the reforms came about only after scandals and inquiries about widespread or systemic abuse raises the question: why must we wait for a scandal to break to enact reform? Why not reform unjust laws if we already know they leave individual victims without recourse?  

Why wait for a scandal to do the right thing?

People accused of sexual abuse are entitled to the most rigorous protections of the criminal justice system, but not to impunity. They have the right to challenge unreliable evidence, but not to avoid being accused at all. Time limits should never prevent survivors of sexual abuse from holding perpetrators to account.

Reforms of limitation periods are a common outcome of sexual abuse scandals, but survivors shouldn’t have to wait for systemic abuse to capture public attention to allow them to access justice.