In my previous article, I considered some problems with the present vogue for prosecuting stale allegations of historic sex abuse. The present article considers aspects of the compensation industry that accompanies it, and suggests that modern compensation culture is dependent upon some flawed concepts.
As Professor Philip Jenkins explains in his study of abuse claims against the Catholic Church, the present orthodoxy developed in part from the feminist campaign against rape in the 1970s. [i] This rejected the prevailing, liberal view that sex crime was relatively rare, and that victims of child sex abuse are not invariably ruined for life. That view was itself a reaction against a prevailing mood of public hysteria around sex offences, which dominated the 1930s and 1940s.
Whilst the liberal view in no way sought to condone sex offences against minors, it stressed: “the possible traumatizing of the individual is almost always a product of cultural and individual responses to the experience.” By contrast, the rhetoric of the new “survivorship” movement portrays victims of such abuse as undergoing ordeals comparable to natural disasters, or homicidal attacks.
The modern abuse industry maintains, as core beliefs, the propositions that child sexual abuse is always traumatic, and that it causes a multitude of ills in later life: indeed, so disabling are its sequelae that some sufferers can only get round to seeking legal advice decades later.
Various metaphors are used to describe this disabling tendency: claimants say (or are taught to say) that they have repressed, suppressed or “blocked” memories of abuse.
However, they have some explaining to do, because the notion of “traumatic amnesia” is, as Professor Richard J. McNally of Harvard University has explained, “a set of theories in search of a phenomenon.”[ii]
In 2012, the Supreme Court of Minnesota accepted a defence argument that the theory of “repressed or recovered” memory did not meet the Frye-Mack test for the admissibility of expert evidence.[iii] Thus, a claim was struck out for delay, although the claimant said that he only recovered memories of abuse later in life.
The problem, as defence experts explained to the American court, is that whilst research scientists accept that the idea of “repressed” or “recovered” memory is little more than wishful thinking, this damaging and discredited theory still holds sway amongst clinicians and therapists, who in turn propagate it amongst their clients.
In the UK, use of the titles “counsellor” or “psychotherapist” is unregulated. So anyone, no matter how unscrupulous, damaged or ignorant can sell such services to the vulnerable public.[iv] Some suggestive psychotherapy can create false memories of abuse.[v]
Remarkably, only a couple of weeks ago in Wales, the CPS prosecuted a case of alleged Satanic abuse against an elderly couple: the mature complainant invoked “repressed memories,” ostensibly recovered during counselling after a bereavement.[vi] The jury could not agree on a verdict.
Even if the abuse recounted is genuine, therapy culture’s fascination with the past means that instead of letting the experience go, many clients can never leave their past behind. Not surprisingly, this makes some very angry, and determined to find someone to blame for all the troubles they have encountered in life.
What price Paradise Lost?
A tiny number of historic abuse firms claim to undertake such cases worldwide. So lucrative has the market become that, in January this year, an international law firm announced its entry into the fray, arguing that English courts should emulate U.S.-style levels of damages. The BBC quoted its American founder: “We think there is some wisdom on the other side of the Atlantic about how to handle child protection cases….If people don’t pay real money to stop this problem, the problem is not going to end.”[vii]
Such claims do not acknowledge the obvious point that alleging abuse in the 1950s or 1960s is an exercise in futility: shutting the door decades after the horse has bolted. They also do not acknowledge the monetary motive for lawyers in seeking to inflate damages here: under the new costs regime in the U.K., damages-based agreements (DBAs) only allow lawyers a maximum “success fee” of 25% of damages recovered in personal injury claims, excluding damages for future care and loss.
Hence the focus on public school alumni, expected to do rather better career-wise than children in care or prisoners. Ex-public school “survivors” express their woes in shamanistic terms: “it is important for us to take our power back.”[viii] Nevertheless, some firms continue to advertise for less socially successful clients in prison newspapers, with messages like: “Do you want to claim for your lost childhood?”
Ordinarily, the time limit for an action for “negligence, nuisance or breach of duty” causing personal injury is three years: section 11(4) Limitation Act 1980, as amended. Time runs either from the date when the cause of action accrued, or the date of knowledge (if later). Courts have a discretion to extend time in personal injury claims under s. 33 (1), if equitable to do so.
Previously, a sexual assault had been seen as an intentional tort, subject to the six-year limit applicable to most other torts by section 2. That time limit was challenged unsuccessfully before the European Court of Human Rights in the case of Stubbings in 1996.
Ms Stubbings had alleged historic sexual abuse by her adoptive father between 1959 and 1971. She did not start her legal action until 1987, when she was aged 30. She had a torrid history of mental disorders, being variously diagnosed with schizophrenia, emotional instability, paranoia, depression and agoraphobia.
She claimed that it was not until 1984, when a consultant child and family psychiatrist treated her, that she first realized the connection between her mental health problems and the child abuse. Why, as an adult, she was referred to a child psychiatrist is not clear. How a psychiatrist could conclude that conditions such as psychosis are “caused” by childhood sexual abuse is also unclear.
When her case reached the House of Lords in 1993, Lord Griffiths said: “I have the greatest difficulty in accepting that a woman who has been raped does not know that she has suffered a significant injury.” When her case went to Europe, it was accompanied by three other cases. One appeared to be a classic case of suggestive psychotherapy creating a “repressed” memory. Another petitioner claimed that she had “blocked out” memories of abuse “as a means of survival.”
It was not until the House of Lords experienced a Pauline conversion in the case of Hoare in 2008 (involving a rapist who later won the Lottery), that rape and sexual assault were re-labelled as acts of negligence. In that case, the rapist’s unexpected windfall was a sufficient pretext to re-engineer the law, and facilitate a late claim.
A parody of justice
As Hardiman J. of the Irish Supreme Court stated in 2000, a long lapse of time will necessarily create inequity or injustice, and amount to an absolute and obvious injustice, or even a parody of justice.[ix]
However, the Oireachtas enacted a Statute of Limitations (Amendment) Act 2000, which legislates for a legal fiction: the incapacitated, yet capacitated adult. These partially-competent people can see doctors, claim benefits, earn a living, get married, have children, even commit crimes and (in short) do most things, save to take legal advice about one aspect of their lives. Thus, a person alleging historic sex abuse is deemed to:
|“be under a disability while he or she is suffering from any psychological injury that—|
|(i) is caused, in whole or in part, by that act, or any other act, of the person who committed the first-mentioned act, and|
|(ii) is of such significance that his or her will, or his or her ability to make a reasoned decision, to bring such action is substantially impaired.”||(ii) is of such significance that his or her will, or his or her ability to make a reasoned decision, to bring such action is substantially impaired.|
In addition, the proliferation of self-help books, misery memoirs, media coverage of historic sex scandals, and campaigning “survivor” charities means that the symptoms of abuse are widely known.
A typical survivors’ campaign website from the U.S. tells victims what to expect:
“In addition to the commonly know [sic] fact victims often resort to alcohol and drug abuse to try to deal with this devastating trauma, the following are common victim ‘costs’:
- Poor physical health (e.g., chronic fatigue, altered immune function, hypertension, sexually transmitted diseases, obesity);
- Poor emotional and mental health (e.g., depression, anxiety, eating disorders, suicidal thoughts and attempts, post-traumatic stress disorder);
- Social difficulties (e.g., insecure attachments with caregivers, which may lead to difficulties in developing trusting relationships with peers and adults later in life);
- Cognitive dysfunction (e.g., deficits in attention, abstract reasoning, language development, and problem-solving skills, which ultimately affect academic achievement and school performance);
- High-risk health behaviors (e.g., a higher number of lifetime sexual partners, younger age at first voluntary intercourse, teen pregnancy, alcohol and substance abuse); and
- Behavioral problems (e.g., aggression, juvenile delinquency, adult criminality, abusive or violent behavior).” [underlining in original] [x]
One objection to this determinist model is the problem identified earlier: the assumption that all child sex abuse is invariably traumatic. That assumption is flawed, as Susan Clancy and Richard J. McNally of Harvard University have both recently pointed out.[xi] In addition, the determinist model confuses correlation with causation: a basic error. The position, then, is not as simple as activists would have the public and policy-makers believe.
“these unhappy ladies”: a blast from the past
Historic abuse claims remind one of a vogue for traumatic neurasthenia accident claims in English courts, in the early twentieth-century. As Patrick Hastings, a leading silk of his generation, later recalled in his memoirs:
“it was practically impossible to prove, whether by cross-examination or otherwise, that the accident had not happened.”
Hastings acknowledged, as one must, that of course some accidents are genuine, “but there came a time when it began to be appreciated that such misfortunes could be extremely profitable.” Defendants “would far rather pay than fight and unscrupulous individuals began to take advantage of that tendency.”
Then as now, the system depended on experts willing to diagnose the symptoms of traumatic neurasthenia, for a fee. One of Hastings’ insurer clients decided to investigate the expert used in a typical case:
“The office boy employed by my solicitor paid him a visit…..Being an intelligent young man, he knew all about the symptoms of traumatic neurasthenia, having learnt them from a perusal of the plaintiff’s claim, and he informed the specialist that he was suffering from all of them.”
To be on the safe side, the solicitor sent a succession of his staff to this specialist, all of whom got the same diagnosis and treatment. The inevitable challenge to the expert made onlookers at court rock with laughter, and the claim was dismissed. Hastings, whose perspective was obviously coloured by his work for defendant insurers, regarded these types of claim as “mainly bare-faced frauds.”[xii]
Today, the Association of British Insurers is fighting similar battles, and regularly engages in wars of words with the claimant lobby. For example, the level of fraud in whiplash injury claims (for which there is no objective test) is said to be as high as 60%.[xiii]
Richard Webster, an authority on historic abuse claims following the Welsh care homes scandal, thought that the Irish Government’s knee-jerk response to RTÉ’s allegations of historic abuse in industrial schools, including an exceptionally generous compensation scheme (a maximum of £200, 000 per claimant), was bound to elicit “an unusually high number of false allegations.” [xiv]
How many is a very difficult question to assess precisely, though Webster believed that the rate might be as high as 90%.[xv] The problem, as he noted, is that there is no way of reliably filtering out the false claims from the genuine, in the absence of any objective test. Psychological reports cannot perform this function. The evidence is about as flimsy as it could be: one person’s imperfect recollections, decades after an alleged event.[xvi] In short: “the gates of the civil courts are already wide open to fabricated claims.”
A key difference between old ladies falling off omnibuses, with whom Hastings had to contend, and recent scandals alleging historic child abuse, is that the latter inflict a devastating reputational blow, fatally wounding the opponent before a formal claim is even initiated. The indiscriminate (and often inaccurate) use of the term “paedophile” or “predatory paedophile” is routinely deployed by the media to generate widespread public hostility and revulsion, thereby placing any prospective defendant under extreme moral pressure.
In this febrile atmosphere, accusations are readily taken as proof of guilt. The problems faced by those tasked with defending such claims are huge. Hastings would have been horrified.
The writer’s views are personal.
[i] Philip Jenkins: Pedophiles and Priests: anatomy of a contemporary crisis (Oxford, 1996) pp. 83-9
[ii] Richard J. McNally, Remembering Trauma (Harvard, 2005) p. 182
[iii] John Doe v Archdiocese of Saint Paul and Minneapolis and Diocese of Winona, State of Minnesota Supreme Court, A10-1951, filed July 25, 2012
[v] Katharine Mair, Abused by Therapy: how searching for childhood trauma can damage adult lives (Matador, 2013); Dr Kevin Felstead & Richard Felstead, Justice for Carol – the true story of Carol Felstead (2014); Mark Prendergrast, Victims of Memory: Incest Accusations and Shattered Lives (Harper Collins, 1998)
[xi] Susan A. Clancy, The Trauma Myth: the truth about the sexual abuse of children – and its aftermath (Perseus, 2009); Richard J. McNally, amicus brief in 2005 at http://www.religioustolerance.org/rmtmcnally.htm
[xii] Patrick Hastings, Cases in Court (Heinemann, 1949) pp. 6-13
[xiv] Richard Webster, The Secret of Bryn Estyn: the making of a modern witch hunt (Orwell Press, 2009) p. 546
Barbara Hewson, barrister, Gray’s Inn