An opinion piece by Stephen Roche
They say no good deed goes unnoticed. When you’re working hard someone is always watching. It’s a lesson hard to be mindful of. Not because we chug away at life aimlessly, but because sometimes, it’s easy to forget the significance and privilege a lawyer has in affecting change.
My reminder came out of the blue a few weeks ago - a call to catch up for coffee. It was Lorraine, the sister of an old school mate of mine. She was about ten years my senior. We hadn’t been close growing up but her younger brother and I are lifelong friends.
What she would tell me that morning would change everything.When we met, the first thing Lorraine blurted out was “thank you for your book”. My first foray into writing, 'Don’t Tell', was the story of the civil court case brought by an inspirational former client, Lyndal. Her courage to share her experience as a child abuse survivor paved the way for other victims to come forward.
Lorraine said the book was part of the catalyst to dealing with her own issues of childhood abuse. “I’m not going to name the perpetrator” she warned me, as I sat and listened. But she did want to share her experience. She told me of the broken relationships, the feelings of guilt, shame and the worthlessness –then rock bottom, the search for meaning, the meditation practice, the study. Abuse just peppered our conversation.
“I can hug men now,” she said, a huge stepping-stone for many victims of abuse.Caring for her aging mother in recent years gave Lorraine the opportunity to discuss these things with a captive audience. Her mother acknowledged 'the incident' (there were lots of incidents Lorraine said), but that single acknowledgment from her ageing mother - an earlier generation - was enough to validate her and what she had endured. The healing could begin. It was clear there had been at least one subsequent perpetrator, a teacher when Lorraine was at primary school. The first one, however, was clearly in her home – that perpetrator was a family member.
In early 2002, fresh from the jury verdict in the Toowoomba Prep abuse case (the basis for 'Don’t Tell') and the Boston Globe’s work on the Catholic Church abuse scandals, there was no talk of a Royal Commission. Finally, a decade later, when serious talk of a Royal Commission into Institutional Abuse was touted, I was asked for my opinion on whether it would do any good.
I have to admit I was sceptical. I genuinely feared the risk of forcing already traumatised victims to relive their fear and pain alongside the institutions that not only committed the crime but committed the cover up. How would it be helpful to a victim who had progressed in life to reverse that growth and tap into a period they had buried? I’m sure the pain of re-sharing the experience hurt many victims twice over. For others, the announcement of a Royal Commission offered hope - a platform in which to be heard. A stage where their story was welcome and told. A friendlier courtroom where their courage freed them of their grief. Vindication. And of course, asking questions of the leaders of our institutions.
I now see what the Royal Commission has offered survivors.The process, thoroughness, opportunity, understanding, insight and the framework of this investigation has been remarkable. The Royal Commission has investigated many institutions and heard from thousands of brave survivors and victims as they have come forward to tell their important stories. By contrast, in the UK, where a parliamentary inquiry into child sex abuse is underway, a few controversial setbacks have slowed the process, making it even more traumatic for survivors.
Now more than ever, Australians are aware of child sexual abuse issues – much of that is thanks to the formidable crusaders in this area. Journalists like Amanda Gearing and Hedley Thomas, campaigners like Hetty Johnson from Bravehearts and Cathy Kazelman from Blue Knot, and countless others have worked tirelessly (and often thanklessly) to raise much-needed awareness. The people who are trying to protect our children from this scourge, ought to be acknowledged and thanked.
I represent a part of the civil legal system. Many victims steer clear of it. Many survivor advocates don’t recommend it. I think that few understand it. One of the reasons for this is people believe what they see on television dramas is what actually happens. Often, they aren't familiar with the differences in say a real rape trial or sexual assault trial compared to a civil claim. They're frightened or dissuaded from ever attempting to make the wrongdoers accountable.
Those that do contemplate taking action are often advised by family and friends not to speak up. It's true that those who go against the tide and choose to pursue a claim experience different outcomes – some good, some not so good. It’s hard to be sure if any win is in fact a victory after this kind of trauma. I advocate that it's precisely the power of the civil system that, when it works, affects more change than anything else.
It was the jury verdict in the Toowoomba Prep case that became the Australian ‘Spotlight” and a catalyst for change, greater awareness and understanding.As a lawyer, I recall in about 1994 when a jury verdict awarded damages to a victim of ‘passive smoking’. Smoking was banned in government buildings across the country within 24 hours. Swift change brought about by ordinary people. That’s what I’m talking about.
The greatest triumph for any lawyer practicing in this space, would be to stop the perpetrators before they’ve offended. That, I’ve learnt, is a goal too far-fetched from reality. What lawyers can do is put legal safeguards, laws and rules in place to prevent it. This may work in institutions like religious organisations and government care facilities, but what can we do for the poor child whose home isn’t a safe haven? What do we do when a family member is the perpetrator? How do we stop that? Maybe that's the next frontier.
The first principle in fixing or solving a problem, is to know what the problem is. I’m not sure any of us can understand it; perhaps we never will.
But the power of the Royal Commission is that it makes abuse a part of our conversation.However uncomfortable the dialogue may be, the exposure, the acceptance, and the vindication that media coverage offers, are vital to the healing of many victims.
This knowledge and quest to liberate the oppressed has been the driving force behind my book, 'Don’t Tell', recently turned into a film of the same name. I hope very much that this movie sparks more conversations and more acceptance. We know some people never recover from the sexual abuse they suffered as a child. There's a stigma attached that stays with them for life. Even in my own extended family circle, abuse has been present. You’d think with all of my years of experience and intuition, I would have picked up on it but I didn’t. That’s why delving deep into this uncomfortable area is vital for the voiceless.
When I contrast the present day to the environment of 2001 when my client was first awarded compensatory and exemplary damages against the Anglican Church, the changes are startling.
Then, it was a very trying environment for the abuse sufferer. Statute of limitation periods were in place, meaning most people were out of time to launch civil action. People didn’t understand the effects of trauma and how it plays out in the survivor’s life for many years after the fact. Churches and institutions (and their insurers and lawyers) were taking a very tough stance. They hid behind technical defences when they knew what the plaintiff was saying was true. In other instances, information of prior complaints was withheld and perpetrators were moved to an unsuspecting new community.
The environment back then made it incredibly difficult for victims of abuse to come forward.Both community and police attitudes put up roadblocks towards victims' recovery and submissions. Attitudes are thankfully changing. It's anticipated that our Police authorities are about to apologise for how dismissive they were of reports of sexual abuse in the past. The Anglican Church has just apologised for their mishandling of complaints – although they still haven’t apologised to my client.
If victims weren’t afraid of public scrutiny, police rejection or even family rejection, there were other hostile forces to contend with. The environment of ‘deny and defend at any cost’ driven by our institutions, their insurance companies and their lawyers was too litigious and arduous, clouding the subject matter and the sincerity of each claim. Technical defences - such as limitation periods - were routinely taken, denying many people their legal rights. Fast-forward 15 years.
Due to the courage and tenacity of survivors and their advocates, the Royal Commission is now examining a wide range of institutions.Victims have a voice whether they are from the Australian Defence Force, the police service, or the Anglican and Catholic Churches. The nation is moving towards taking a firm stance of zero tolerance towards abuse.
There is finally knowledge and understanding of the plight of these survivors. There is greater awareness of processes. Some technical defences and limitations on claims have been removed. There is pressure on institutions to be accountable. There is also greater empathy and compassion, and to me, that can only ever be a good thing.
Lorraine, my old friend’s sister, wanted to see me for advice on a new business venture. She is about to rent some space in a medical centre and open her shingle to work in trauma counselling. At 62, she has finally found her calling and is excited to make a difference. She is certainly qualified, both on paper and because she has experienced it firsthand. She understands it better than most.
I think she will help make a huge difference in many lives, as sadly we both know there is unlikely to be a shortage of clientele.
Stephen Roche is an advocate for civil and social justice, the co-founder of Shine Lawyers and author of the novel 'Don't Tell'. In 2016, his novel was turned into an Australian film of the same name featuring Jack Thompson and Rachel Griffiths.
Written by Shine Lawyers on December 14, 2017. Last modified: September 25, 2018.