LEGAL PRESSURE MUST be combined with moral and political pressure to effectively share responsibility for sexual abuse in schools between state and religious organisations. The recent announcement by The Labour Party of draft legislation to ensure a financial contribution from religious organisations to redress comes amid growing interest in whether and how such organisations can be compelled to contribute.
The scoping inquiry into non-recent sexual abuses in schools released last month recommended that the Government consider a redress scheme for survivors and that it ‘approach the relevant religious orders about contributing to a redress scheme.’
In reflecting on these recommendations, the Government is likely to be concerned about the expected significant cost of potential redress. Although all forms and offers of redress are intended to serve as acknowledgement of the harm done to victim-survivors at a minimum, it remains important to provide context about the quantum of similar redress awards, to inform the expectations of survivors potentially eligible in the context of the Scoping Inquiry.
In comparable redress schemes, payments to individual victim-survivors of sexual abuse could extend up to €300,000 in the Residential Institutions Redress Board scheme, although the average payment was €62,250 and 85% of the awards were at or below €100,000.
In the scheme to implement the judgment of O’Keeffe v Ireland regarding the state’s failure in its duty to prevent child sexual abuse in schools, the payment was €84,000. These figures align broadly with global comparisons: in Canada, the Indian Residential Schools Settlement agreement paid out redress up to €300,000 and in Australia, the National Redress scheme regarding sexual abuse provides payments up to €90,000.
The scale of relevant and potentially eligible victim-survivors related to sexual abuse in day schools multiplies these figures considerably. The Scoping Inquiry report indicated that based on Central Statistics Office estimates among persons aged 35 years and older, some 15,300 men and 26,000 women are estimated to have experienced sexual violence as a child in a school, a total of approximately 41,000 victim-survivors. At anywhere between €62-300,000 per victim, the potential bill for redress related to sexual abuse in day schools could be anywhere from €2.5 to €12.3 billion.
Despite the windfall the economy has had from the Apple tax issue, such figures are likely to concern the government greatly and lead to a restrictive redress scheme that will seek to reduce the figures payable to victims and exclude categories of eligible victims as well. Nonetheless, the decision of the European Court of Human Rights in O’Keeffe v Ireland is clear: Ireland is liable for its failure to prevent child sexual abuse in day schools and owes victim-survivors an effective remedy.
It is in this context that discussions about the financial contributions of religious organisations to a redress scheme for abuse in day schools emerge. Prior practice demonstrates the taxpayer assumes the majority of the cost for state-administered redress, with religious organisations only contributing a minority of the bill for redress related to industrial and reformatory schools. Nothing in the context of Magdalene Laundries, and despite negotiations ongoing, likely nothing in the context of Mother and Baby Homes.
It is known that religious organisations have provided some forms of redress to victim-survivors directly, but the extent of this across all relevant organisations named in the Scoping Inquiry report remains unknown. Public disclosure of these figures is essential for an informed debate regarding redress and for effective taking of responsibility by both state and church to provide redress to victim-survivors. If religious organisations want to maintain they are not obliged to contribute, then at a minimum they should provide candour about their existing provision to survivors, if any.
In addition to the obvious moral and political pressure on religious organisations to contribute voluntarily, suggestions to compel religious organisations to provide financially for a state redress scheme would do well to consider the context of legal pressure employed for the last financial contributions of religious organisations to redress to the Residential Institutions Redress Board (RIRB) scheme in 2002.
In 2000, the state passed the Statute of Limitations (Amendment) Act 2000, which enabled victim-survivors of sexual abuse to pursue civil litigation in the courts, where they could evidence the abuse caused them a psychological injury that impaired their ability to bring proceedings. This amendment contributed to the growth of litigation against religious organisations involved in industrial and reformatory schools and arguably contributed to their decisions to contribute to the RIRB scheme, which indemnified them against further costs related to that context.
However, the subsequent decades have seen this measure of access to justice nullified by a restrictive judicial interpretation and successful applications by religious organisations striking out victim-survivor claims on the grounds of delay. In addition, the status of religious organisations as unincorporated associations has created difficulties for some victim-survivors. In recent years, for instance, the Christian Brothers have gained notoriety in the media for their legal strategy of electing not to name a nominee to represent their unincorporated association.
Legal pressure is often used and is necessary to incentivise contributions to redress from private actors. In Australia, broader legal reform to the statute of limitations and the law regarding the legal status of religious organisations created a strong incentive for many such organisations to provide financially to the Australian National Redress scheme. In Canada, the use of class action litigation against state and church actors was necessary to create the agreements regarding abuse in Indian Residential Schools.
Increasing access to justice, aligns with the stated needs of some victim-survivors in the Scoping Inquiry report, and strengthens the capacity of the legal system to provide meaningful accountability. Reform of our laws regarding the statute of limitations and unincorporated associations offers the means better to incentivise religious organisations’ financial contribution to state-administered redress.
The clock is ticking for government in providing redress for non-recent harms. The State would do well to draw from Scotland’s experience and provide advanced payments to victim-survivors while legislation for redress is prepared and financial contributions of all relevant organisations are established.
The harrowing accounts of abuse in the Scoping Inquiry report require a prompt, effective and meaningful justice response from both state and religious organisations. Redress must form a part of the state and church taking responsibility for the grievous harms done.
Dr James Gallen is an associate professor in the School of Law and Government at Dublin City University.
To embed this post, copy the code below on your site
have your say