Dr. Ann Olivarius, The Devil in the Detail: Compensation for Survivors of Childhood Sexual Abuse in England and Wales

Childhood sexual abuse is becoming more openly discussed on both sides of the Atlantic, due (sadly) in large part to major scandals implicating prominent institutions such as the BBC and Penn State University. In both the UK (more precisely, England and Wales, which is where most UK solicitors practice) and the US, the culture of stigma and shame surrounding childhood sexual abuse is starting, albeit slowly, to melt away, meaning that more survivors feel able to seek justice in the criminal and civil courts. However there are still stark differences between the two legal systems in the way they treat survivors, and how they understand the damage done to survivors by childhood sexual abuse.

It’s never going to be easy for any survivor to use any court, either criminal or civil, in any country.  These cases deal with particularly intimate and difficult matters that often cause survivors shame and grief for years.  And defendants’ lawyers challenge survivors in the same way they would any other accuser in an adversarial system: trying to find inconsistencies in their testimony, attacking their credibility and questioning their motives. They don’t see their job as showing sympathy or concern for survivors rightfully bringing a claim.

But there are additional reasons why survivors may choose to stay out of court in the UK.  Chief among them is the low level of damages awarded.  A typical award in the UK for a child abuse survivor will range between $25,000 and $75,000 — perhaps one-tenth, or less, of what a comparable case would attain in the US.  There are various reasons for this built into the legal system.  Judges, not juries, hear civil cases in England, and punitive damages are not awarded.  The maximum available for psychological damage, even the most severe, is $150,000 – and courts very rarely award damages at this level.  The only way to obtain substantial damages is to prove that the abuse caused a lifetime decline in earning capacity.  While this is sometimes possible, as a general matter it is exceedingly difficult to prove to a judge’s satisfaction that a young person subjected to abuse was already demonstrating sufficient talent, drive and interest to soar in a high-flying career, and that the abuse was the “but for” cause of any downward deviation.

Fundamentally, I think the problem is that the English legal system still tends to treat childhood sexual abuse as a “normal” tort like a car accident, a single instance of harm and distress, without enough appreciation for the powerful ways in which it can affect, even define, a survivor’s entire life.

There is now ample evidence of how abuse can have the effect of actually rewiring the survivor’s brain. It can impair cognitive function and attention, making it difficult to progress with education and work. It can affect moods: for example, survivors of childhood sexual abuse are more likely to suffer from mental health problems like anxiety disorders and post-traumatic stress disorder. It can have lifelong effects on self-esteem, and the ability to trust and form close relationships. The British system offers compensation for the psychological distress relating to the abuse itself, but barely at all for the cascade of adverse effects it brings to the rest of a person’s life.

There are some reforms being discussed that may make the courts easier for abuse survivors.  Keir Starmer, the former head of public prosecutions, recently called for a new approach to victims’ rights in the courts.  What exactly this new approach will address – abolishing, for example, the requirement that a victim of personal or sexual attack report it at a police station, or allowing judges, as opposed to the defense, to question the most vulnerable witnesses – is yet to be seen, but the basic idea is a good one.

But more substantial changes are needed. Mandatory reporting to the authorities by institutions such as schools and churches when people in authority are suspected of sexual abuse would be a practical step forward that would also reinforce the idea that the law applies to everyone equally. The English civil courts should also recognize the true cost of abuse on the individual: not just the anguish suffered in the moment of the crime, but the post-traumatic effects that reverberate down the years. This means compensatory awards of six or seven figures, instead of four or five.  We also need stronger sanctions against institutions that protect child abusers.  Expanding punitive damages, which are nearly impossible to achieve in this country, would prompt institutions to be more active in policing themselves, as well as help survivors get compensation matching their damage.

A low damages regime is not only unfair to survivors, but I would argue it is also dangerous to society.  The Catholic Church and other large organizations that have had persistent problems with abusive officials have been known to move them from jurisdiction to jurisdiction to cover up scandal and avoid prosecution. If in Britain abuse is a “cheap crime,” why not send troublesome pedophiles there from tougher jurisdictions around the world?  Of course the goal is to turn child sexual abuse from a scourge to a rarity, everywhere in the world.  But the greatest progress in addressing this problem so far has come in countries that have made it costliest to perpetrators and the institutions that harbor them.  Raising damages to levels that more closely match the harm caused should help those who have already suffered, but can also begin a virtuous circle that will help children not yet born. The United States has a long-established damages regime that, while imperfect, creates important deterrents to the proliferation of abuse, and it is in this respect that Britain can profit from emulating the American model.