❓ The Attorney General highlights a recent $1.44 million judgment awarded to a child sexual abuse survivor, praising the government's legislation for removing limitation periods and the court's interpretation of 'sexual abuse'.
AnsweredQoN 183Legislative Assembly
QuestionView source ↗
CHILD SEXUAL ABUSE —
LIMITATION PERIOD
183. Dr
A.D. BUTI to the Attorney General:
I refer to the McGowan Labor
government's landmark legislation to remove the limitation period for
child sexual abuse. Can the Attorney General advise the house how these laws
are now helping survivors of historic child sexual abuse finally get justice?
LIMITATION PERIOD
183. Dr
A.D. BUTI to the Attorney General:
I refer to the McGowan Labor
government's landmark legislation to remove the limitation period for
child sexual abuse. Can the Attorney General advise the house how these laws
are now helping survivors of historic child sexual abuse finally get justice?
AnswerView source ↗
I would like to thank the member for
Armadale and my learned friend at law for the question. Seven days ago, John Lawrence, a victim of child sexual abuse at
Castledare Boys' Home, was awarded a judgment of $1.44 million . I would like to draw to the chamber's
attention two aspects of the case. The first concerns the definition of ''sexual abuse''. This was a matter raised during debate in this chamber
and His Honour who decided the case, the very learned Judge Mark Herron of the
District Court, determined —
Mr D.J. Kelly : Great bloke.
Mr J.R. QUIGLEY : A great
bloke said the member for Bassendean.
In
determining what constituted child sexual abuse—we were asked in this
chamber whether ''physical abuse'' fell within the ambit
of the legislation—His Honour said that the McGowan government was
prescient in not defining sexual abuse but
leaving it to the courts. I will briefly read paragraph 101 from the judgement
where His Honour said —
Therefore,
if in the context of an institution, or indeed any relationship where an adult
has power over a child, any conduct which heightens the child's
vulnerability and allows him or her to be exploited for purposes of sexual gratification may be considered to be sexual abuse. If, in an
institutional setting, a child is regularly physically beaten and threatened
which causes a child to be fearful, frightened and defenceless, or unable to
turn to anyone for help, thereby heightening or increasing the child's
vulnerability to do what the child is directed or forced to do, that conduct
may fall within the meaning of the expression ''sexual abuse''.
At paragraph 258, His Honour went on
to say —
In
my view, the physical and other abuse, including emotional deprivation,
perpetrated against Mr Lawrence when he was a young boy while he was
living at Clontarf and Castledare is so inextricably intertwined and associated
with the child sexual abuse that it cannot be separated from the sexual abuse.
The physical and emotional abuse, and other forms of maltreatment, to which Mr
Lawrence, and the other boys, were subjected while at Castledare and Clontarf,
aided the occurrence of the child's sexual abuse.
That is why the judge said that it was prescient of this
government to not define child sexual abuse, but to leave it to the court to
interpret in any given case.
The final aspect of the case I would
like briefly to refer to was the dreadful defence raised by the Christian
Brothers. After admitting liability for the abuse, they went on to say, ''He
didn't deserve a lot of damages because he was an orphan child who didn't
have much chance in life.'' That defence was referred to in court as a ''rubbing
the salt in the wound defence'', which was thoroughly rejected. I think
this Parliament can be very satisfied with the terms of the legislation that we
did not define child sexual abuse, but left that to their honours. The final
remark I would make is that from reading that judgement, it should be evident
to every member of this chamber that the judiciary does listen and does pay
attention to what happens in the Parliament. The judiciary does not sit in an
ivory tower ignorant of what happens in this
chamber; they read the Hansard of this chamber and apply the intent of
the legislation as we debate it here. This is a landmark case and will
set the course going forward.
Armadale and my learned friend at law for the question. Seven days ago, John Lawrence, a victim of child sexual abuse at
Castledare Boys' Home, was awarded a judgment of $1.44 million . I would like to draw to the chamber's
attention two aspects of the case. The first concerns the definition of ''sexual abuse''. This was a matter raised during debate in this chamber
and His Honour who decided the case, the very learned Judge Mark Herron of the
District Court, determined —
Mr D.J. Kelly : Great bloke.
Mr J.R. QUIGLEY : A great
bloke said the member for Bassendean.
In
determining what constituted child sexual abuse—we were asked in this
chamber whether ''physical abuse'' fell within the ambit
of the legislation—His Honour said that the McGowan government was
prescient in not defining sexual abuse but
leaving it to the courts. I will briefly read paragraph 101 from the judgement
where His Honour said —
Therefore,
if in the context of an institution, or indeed any relationship where an adult
has power over a child, any conduct which heightens the child's
vulnerability and allows him or her to be exploited for purposes of sexual gratification may be considered to be sexual abuse. If, in an
institutional setting, a child is regularly physically beaten and threatened
which causes a child to be fearful, frightened and defenceless, or unable to
turn to anyone for help, thereby heightening or increasing the child's
vulnerability to do what the child is directed or forced to do, that conduct
may fall within the meaning of the expression ''sexual abuse''.
At paragraph 258, His Honour went on
to say —
In
my view, the physical and other abuse, including emotional deprivation,
perpetrated against Mr Lawrence when he was a young boy while he was
living at Clontarf and Castledare is so inextricably intertwined and associated
with the child sexual abuse that it cannot be separated from the sexual abuse.
The physical and emotional abuse, and other forms of maltreatment, to which Mr
Lawrence, and the other boys, were subjected while at Castledare and Clontarf,
aided the occurrence of the child's sexual abuse.
That is why the judge said that it was prescient of this
government to not define child sexual abuse, but to leave it to the court to
interpret in any given case.
The final aspect of the case I would
like briefly to refer to was the dreadful defence raised by the Christian
Brothers. After admitting liability for the abuse, they went on to say, ''He
didn't deserve a lot of damages because he was an orphan child who didn't
have much chance in life.'' That defence was referred to in court as a ''rubbing
the salt in the wound defence'', which was thoroughly rejected. I think
this Parliament can be very satisfied with the terms of the legislation that we
did not define child sexual abuse, but left that to their honours. The final
remark I would make is that from reading that judgement, it should be evident
to every member of this chamber that the judiciary does listen and does pay
attention to what happens in the Parliament. The judiciary does not sit in an
ivory tower ignorant of what happens in this
chamber; they read the Hansard of this chamber and apply the intent of
the legislation as we debate it here. This is a landmark case and will
set the course going forward.
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