Sydney, New South Wales

Saturday 30 September 2017

The Hon. Justice Peter McClellan AM
Chair, Royal Commission into Institutional Responses to Child Sexual Abuse

The sexual abuse of a child is a terrible crime. It is perpetrated against the most innocent in our community. It is the gravest of personal violations.

Countless thousands of children have been abused in many institutions in Australia. Many institutions have had multiple abusers who sexually abuse children. We must accept that it has been occurring in every generation. We know that the risk to children remains today. Although as our institutional structures evolve, and our means of social interaction change, the circumstances of risk may vary, it is a mistake to assume that abuse in institutions will not occur. There is a need for continuing development of effective government regulation, improvement in institutional governance and increasing community awareness of the problem. There is a need for the education of the community with respect to the risks to children. We must also develop our understanding of the needs of those who have been abused and be prepared to respond to those needs.

Over the past three decades there have been many inquiries in Australia which have been concerned with the sexual abuse of children. Inquiries have looked at institutional care, foster care, child migration, the child protection system in some of the states and territories as well as issues in Indigenous communities.

At least 80 previous inquiries have looked at issues directly relevant to the Royal Commission’s work. That number reflects the difficulty the community and its institutions have in confronting and dealing with these issues.

The Royal Commission which I chair is the first inquiry to investigate institutional responses to child sexual abuse at a national level. Our work has been conducted through three pillars: private sessions, public hearings and policy and research.

As many of you would be aware, a Royal Commission typically works through a formal hearing process and commonly receives evidence in public. Conscious of the trauma and suffering associated with child sexual abuse and the difficulties many survivors have in telling their stories, the Commonwealth Parliament amended the Royal Commissions Act 1902 to create a process called a private session.

Through this process a Commissioner receives the story of a survivor in private. It allows the Commissioner to bear witness on behalf of the community to the abuse the survivors suffered and the consequences in their lives.

By the time we finish in December this year we expect to have heard from about 8000 survivors in private sessions. For some survivors, the private session is the first time they have disclosed their abuse. For others, it is the first time in their life their story has been accepted. Many have been re-traumatised in seeking acknowledgement, justice or redress from the institutions in which they were abused. For many survivors, a private session is a powerful and healing experience.

It will be obvious to this audience that sharing their story of abuse has the potential to re-traumatise a survivor. For that reason, we were careful in developing our approach to private sessions. We sought professional advice from psychiatrists and psychologists on the likely impacts to survivors of telling their stories.

The initial contact with the Royal Commission is generally by telephone. The recipient of the call has been trained in responding to the survivor and our support processes are then engaged to assist the survivor. It is of primary importance that survivors clearly understand the steps involved in sharing their story. Sessions are tailored to meet individual needs. Privacy and confidentiality is ensured for all attendees.

Survivors can bring a support person with them to their session. They may opt for someone to speak on their behalf. They are invited to tell their story in a way that suits them, with minimal questioning or interruptions.

Our counsellors are available to work with people who need assistance to prepare for their private session. After the session, a counsellor is available to provide a debrief for all attendees. They check in again with the survivor a week after the session. If necessary counsellors will refer survivors and their families to external support and counselling services.

The Commission has now concluded its public hearings. We have conducted 57 in all. They have been extensively covered in the media and you will be aware of many of them. They have been important in allowing Commissioners to explore institutional and systemic issues. They are also the means by which the community can gain an understanding of the failures of the past and the challenges presented into the future.

The Commission’s research and policy program has also been completed. We have published 50 research reports. The research explored many subjects, ranging from preventing institutional child sexual abuse to improving responses to victims and survivors. The reports are a resource which I hope other researchers will build upon in future years.

As many in this audience will know, the impacts of child sexual abuse can be profound and lifelong for survivors, their families, and communities. These issues do not necessarily develop immediately. Problems may emerge at later stages in life, and be triggered by significant life events.

The most commonly reported impacts described by survivors attending private sessions concern behaviour and mental health functioning. Many people report experiencing post-traumatic stress disorder, depression and anxiety. Some survivors have experienced episodes of dissociation during their private sessions with us. Other diagnosed disorders and symptoms such as nightmares, sleep disturbances, flashbacks, and dissociation, were frequently mentioned by survivors.

Survivors may use alcohol and other drugs to cope with the trauma of abuse. Substance abuse can cause other issues such as physical illness, relationship breakdown, problems with employment, and criminal behaviour. Some survivors described other addictive behaviours, including high levels of gambling as adults. 

Survivors told us about episodes of self-harm, suicidal ideation and suicide attempts. Family members and partners spoke of a number of victims who had died by suicide.

Many survivors spoke about how abuse had impacted on the way they thought about their sexuality. Some survivors said it had interrupted their process of understanding their gender identity.

Research suggests that child sexual abuse may have impacts on the sexual behaviour of victims, both at the time and as adults. As well as having difficulties with physical intimacy, some survivors have told us that as a result of abuse they became sexually active early, engaged in unprotected sex, had multiple sexual partners, or exchanged sex for money, accommodation or drugs. 

It will come as no surprise that sexual abuse may negatively affect not only survivors but their family members, partners, and others in the community.

Parents who learn that their child has been abused may be shocked and confused, and feel guilty for placing them in the care of the institution. It may affect their relationship with the child or partner, confidence in parenting, mental health, social connection, trust, and faith. In some cases it brings up memories of abuse they themselves experienced as children.

Many survivors told us their first disclosure was to their partner, who then became a primary source of strength and support. Partners can feel shock, grief, and distress, and the disclosure may cause insecurities in the relationship. A survivor’s reluctance or refusal to participate in physical and sexual intimacy can also cause tension. In some cases relationships may become strained or break down.

Child sexual abuse can also have intergenerational impacts, affecting victims’ children and grandchildren. We have been told how fears for their own children led to overprotective behaviours, and of concerns about their ability to parent. Some male survivors express concern about physical contact with their children, fearing they may become perpetrators themselves.

People abused in institutions may became distrustful and fearful of authority, including schools, police, welfare and government institutions.

Abuse may have long-term negative impacts on education, employment and economic security. Particularly if abuse happened at school, children may play truant, find it hard to learn, and leave school early. This lack of educational achievement can discourage or prevent them from pursuing other study or training.

Survivors may have trouble maintaining employment because of mental and physical health issues, problems with addiction, or trouble working under authority or with other people.

Mental health impacts, substance abuse, and poor education have led survivors to financial hardship and problems with housing. Some have experienced homelessness after running away to avoid abuse.

We have been told by Aboriginal and Torres Strait Islander survivors, and some survivors from culturally and linguistically diverse backgrounds about the impacts of child sexual abuse in an institutional context on their knowledge and practice of culture.

Child sexual abuse can be associated with a decline in faith or spirituality. This is particularly the case if the abuse occurs in a religious context, and in many cases will result in spiritual disengagement.

Speaking about sexual abuse, whether at the time it is happening or as adults, can be difficult for victims and survivors. The most common barrier mentioned by survivors in private sessions was feelings of shame and embarrassment. Victims may feel guilty and responsible for what happened to them. Other negative emotions such as fear, low self-esteem, humiliation, confusion, anger, hate, disgust, and rage may prevent both children and adults from speaking about abuse.

Young children may lack the knowledge or capacity to understand the abuse as being wrong or reportable. Low levels of education and knowledge about sex, sexuality and sexual abuse may also cause victims to doubt the nature of the abuse. For some victims this uncertainty may last into adulthood.

Children may not possess the skills to communicate abuse for a number of reasons, including age and having limited English language skills.

Decisions around disclosure may be further complicated for victims with disability. Problematic attitudes and myths may position people with disability as asexual, promiscuous, and likely to exaggerate. They may also be thought of us unable to give reliable and credible accounts, and as unlikely victims of sexual abuse.

Attitudes towards sexuality and gender may also affect disclosure. Beliefs about female sexuality, including expectations and limitations on sexual activity, may act as a barrier to disclosure for girls and women. The victim may be blamed for the abuse, and for disgracing themselves and their families. The loss of virginity may cause the girls and their families a loss of prestige and prospects.

Cultural norms around masculinity may impact on how boys view sexual abuse. Male victims have told us they feared that disclosing their abuse would lead others to think of them as feminine, subordinate and weak.

Both male and female victims who were abused by a perpetrator of the same gender may fear being labelled as homosexual and experiencing homophobia if they disclose, regardless of their actual sexual orientation. Some male victims who were abused by women feared the abuse may be mistakenly viewed as desirable or unlikely, and so minimised or denied.

Victims often assess the potential risks and benefits of disclosure before speaking about their experiences. They may not expect to be believed, or that disclosure will have negative consequences for them, their families and communities. Generational or societal views about children being predisposed to lie may lead victims to expect their account to be rejected.

Perpetrators may play on these fears, or manipulate children into thinking that other adults in their lives know of the abuse already and approve or condone it. A decision against disclosing may be made to protect parents from feelings of guilt or hurt, or fearing that the parent will act violently towards the perpetrator.

Sometimes perpetrators threaten to harm the child or their loved ones. They may use grooming tactics, including establishing an emotional connection and building trust with victims and their families, or giving gifts and privileges.

Frequently perpetrators will isolate or alienate the child from others, establishing a barrier between them and people they may otherwise disclose to or that could notice that something was wrong. They may also overtly blame a victim for the abuse, or promote a sense of shared responsibility or complicity with the victim.

In institutional settings perpetrators often hold a position of power and authority. In religious contexts perpetrators may be perceived as receiving their authority directly from God.

Institutions that have cultures that are violent, where physical and sexual abuse are pervasive, or that are isolated from the broader community, can inhibit disclosure. Victims may not be aware of how to report abuse. In some case the perpetrator is also the person responding to complaints.

Some survivors told us that sexual abuse was so prevalent and visible that they thought of it as part of life, and so did not report it. Many said that if they did disclose they were physically punished.

A culture that gives priority to the reputation of the institution over that of the safety of children in its care creates barriers to disclosure for victims and bystanders. For some victims knowing the sacrifices their families had made to send them to a prestigious institution left victims unwilling to report abuse there.

A victim's prior negative interactions with police and other authorities may inhibit them from disclosing. For Aboriginal and Torres Strait Islander people the history of the forced removal of children under protectionist legislation may influence subsequent interactions with child protection services. Many people in recently arrived communities, including asylum-seekers, may fear an authority's power to review their residency status.

These are only some of the barriers encountered by victims and survivors. Simply educating children to recognise abuse and instructing them to report it are not enough to mitigate these barriers.

Children need to have access to adults they can trust with sensitive issues. In some cases victims may disclose to their peers, and so children may require education and support regarding how to react to these disclosures.

Studies reinforce the need for institutional cultures where children, parents, carers and staff are alert to, and identify at an early stage, behaviours that are inappropriate or cause discomfort to children.

In case studies we learned of many instances of institutional employees and authorities not noticing a colleague's potentially concerning behaviour. In some examples where such behaviour was noticed, the possibility of grooming or sexual abuse was not considered.

Indicators of sexual abuse may go unrecognized or unquestioned for numerous reasons. Good institutional culture recognises the possibility that harm may occur and fosters a good environment in which vigilance, good practice, respectfulness and truth seeking are embedded goals.

Disclosure as adults may be triggered by events such as hearing media reports about the institution or perpetrator, the birth of a child, or a relationship breakdown. A number of survivors waited until their parents passed away. Others noticed they were not coping well emotionally and felt the need to speak about the abuse.

Many adults first disclosed after hearing about other victims, wanting to contribute to a safer future for children. Learning about other instances of child sexual abuse may help survivors identify their experiences as abuse, and challenging the belief that they are the only person it has happened to.

The process of disclosure varies between individuals. Victims may make partial disclosures over a period of time, revealing greater or lesser detail to different people in different periods. Even after making an initial disclosure many victims find it difficult to talk about these experiences.

Disclosure of child sexual abuse ought to be understood as a process rather than a single event. Many victims will continue to face decisions about disclosure for the rest of their lives.

The Royal Commission's terms of reference require us to address the issue of justice for victims. In our recently released Criminal Justice Report we examined the criminal justice system's response to child sexual abuse.

A comprehensive and informed understanding of child sexual abuse, its impacts, and factors influencing disclosure and reporting, is essential if the justice system is to respond effectively to victims.

Police, judges, and others involved in the judicial process will often apply their own knowledge which may be a less than complete understanding of the issues. It is important that the available knowledge be disseminated and understood. Professional knowledge from a wide variety of disciplines outside the law is essential.

Child sexual abuse offences are usually committed in private, without eyewitness or other evidence. As a result, unless the perpetrator confesses, which does occur, the complainant’s account is the only direct evidence of the abuse.

It is critical to any investigation and prosecution of any sexual offence that the complainant is able to give clear and credible evidence. The quality of this evidence is dependent on how the survivor remembers the abuse, and how they are able to make sense of and articulate their memories.

Some adult survivors cannot recall the abuse they experienced as children in detail, or even at all. A lack of detailed memory of the abuse can present problems when reporting to police or other authorities such as compensation and redress schemes.

Understanding how human memory works in a general sense, and more specifically how memory may be affected for both child and adult survivors of child sexual abuse may inform the ways in which survivors are questioned, and help discern what they could reasonably be expected to remember of the event.

It can help in evaluating whether particular features, such as inconsistencies in accounts given over time, are a good indicator of unreliability. It may assist with deciding what assistance juries should be given in relation to assessing a complainant’s evidence.

At each stage of the criminal justice process, the reliability of a victims’ memory is assessed by people from diverse backgrounds including police officers, legal practitioners, judges and juries. Quite often, those involved in this process have a limited understanding of how memory works.

In our consultation paper on criminal justice, the Royal Commission highlighted areas where legal expectations seemed at odds with victims’ memory capabilities. It became apparent to us that there was no clear and readily available research material summarising the contemporary psychological understanding of memory relevant to our work particularly with respect to criminal and civil justice.

For that reason, we commissioned a research project in relation to memory and the law. [Professor Goodman-Delahunty, Associate Professor Nolan and Dr Evianne van Gijn-Grosvenor's report Empirical guidance on the effects of child sexual abuse on memory and complainants- evidence (Memory Research)] The report is available on our website. We also convened a public roundtable to discuss a complainant's memory of child sexual abuse and the law earlier this year.

The aim of this Memory Research was to inform readers outside the discipline of psychology about contemporary scientific research in relation to memory. It is an area of some controversy.

The research identifies two main ways of thinking about memory. The first is the ‘common-sense memory belief system’, built on casual observation and conceptions about memory. The second, the ‘scientific memory belief system’, is based on empirical research and a scientific understanding of memory[1].

More often than not, when survivors engage with the criminal justice system it is the ‘common sense’ approach which is engaged. This is generally the case when victims deal with police, lawyers, juries and judges.

Judges spend many hours observing human behaviour. Inevitably, they form assumptions about complainants’ behaviour and how memory works. These assumptions will generally have a ‘common sense’ foundation rather than be derived from research or scientific rigour.

It is easy to see how misconceptions about memory can influence outcomes in child sexual abuse cases.

Victims and survivors of child sexual abuse often find it difficult to provide adequate or accurate details in relation to the offending.

There are a number of reasons for this. The first is that young children may not have a good understanding of dates, times and locations or an ability to describe how different events relate to each other across time.

Second, the delay in reporting may cause events to be wrongly attributed to a particular time or location when they in fact occurred earlier or later, or at another location.

Thirdly, the abuse may have occurred so often and in such similar circumstances, that the survivor is unable to describe specific or distinct occasions on which they were offended against.

These circumstances are common. But they do not indicate memory impairment or dishonesty.

Many of you here today will know more about memory than I do. Our memories are dynamic – we construct them, reconstruct them and retrieve them. It is not surprising then that they change over time. Our research identified three main cognitive processes that will affect survivors’ memories and their ability to give evidence.

The first is encoding – a process that turns physical, sensory information into representations to be stored in memory. For information to be encoded, it must first have been experienced.

The second is retention or consolidation. This process involves the formation of long-term memories. It is an ongoing cycle, where memories are constantly refined and reconsolidated to form long-term memories.

The third is retrieval or recall. This process involves actively constructing information that has been previously encoded. Importantly for us, this retrieval is influenced by a person’s language ability, how they attribute meaning to their experience over time, their emotions and motivations. Rehearsing a memory can make them stronger and easier to retrieve. Often people remember more information with each subsequent recall of a particular memory.

The interplay between these three processes will have a significant bearing on a survivor’s pursuit of justice at each stage of the criminal justice process. From reporting the crime through to giving evidence, the way they encoded their original experience, consolidated and reconsolidated it and finally their circumstances when retrieving it will greatly influence the outcome.[2]

Although often contrary to our ‘common sense’ understanding of memory, research has established a number of important propositions about a child’s memory.

From an early age, children are able to establish reliable memories. The research indicates that from around the age of two they are able to re-enact singular events that they do not yet have the language skills to express. Children and teenagers are more likely than adults to be able to remember events that occurred between the ages of five to seven years.

Our research also suggests that a number of factors influence survivors’ capacity to provide a coherent narrative about the sexual abuse they experienced as children. These include:

  • the strength of their parental attachment
  • their level of maturity and cultural background
  • their coping style and the presence of psychopathology.[3]

While most victims of child sexual abuse have ongoing memories of the experience, abuse memories – like other memories – are subject to forgetting and unconscious updating to fill in gaps with details either forgotten or not encoded.[4]

Our research also tells us that children have a remarkable ability to recall a great deal of information – even a long time after the information was first encoded.

A child may only acknowledge the abuse they experienced at a very young age when they are older. Older children may have memories of sexual abuse but may be hesitant to disclose it. As the delay between the investigative interview and the case reaching court increases, children may experience external and internal pressures to recant or they may be exposed to misinformation.[5]

Recent research findings show how stress and trauma can influence the features of retrieved memory. Key findings noted that not all abuse produces trauma, and not all trauma has deleterious effects on memory. How a victim coped, was supported and was skilled at autobiographical memory – and the nature of their traumatic symptomology – are all factors that can have a subtle impact on the apparent credibility and reliability of memories. Another important factor will be the nature of the support or stress a victim experienced while remembering the abusive events during an investigative interview or in court.[6]

An important development now available in some jurisdictions to assist the court to receive effective evidence from a child is the use of intermediaries.

Intermediaries can be used to assist vulnerable witnesses at both the investigative stage and in preparation for a trial. The intermediary is generally a professional with expertise in the communication difficulties that have been identified with respect to the witness. They conduct an assessment of the communication skills of the witness and recommend to police, and later to the court, the appropriate communication style for that witness.

Complainants may be uniquely challenged by the court process. The advantage of an intermediary is that the judge is able to understand the capacity, including any relevant disability, of a particular complainant and is informed of the challenges that that complainant will face in the courtroom. It allows the intermediary to assist not only the judge, but the parties to ask questions that will best assist the complainant to give effective evidence. This objective is fundamental to any system of justice.

Both New South Wales and South Australia have commenced intermediary schemes that draw, to some extent, on the experience of the scheme in England and Wales.

The function of intermediaries is to improve the quality, including the reliability, of the evidence given to the court. This function is entirely consistent with the objective of making the criminal justice system accessible to children and increasing its capacity to produce safe convictions in child sexual abuse cases.[7]

'Justice' for survivors is not confined to criminal convictions. It encompasses far more than that.

We realised early in our work that the issue of redress was critical. Survivors told us they urgently needed professional help to heal and to live a productive and fulfilled life. Many want the institution to be recognised to have failed them. They want it to be required to make a payment in recognition of that failure.

The profoundly damaging and often long lasting impacts experienced by many survivors of child sexual abuse provoke questions of how best to respond to people who have been abused. The Royal Commission's terms of reference require us to address the issue of justice for victims, including the provision of redress.

The consultation process for our 2015 Redress and Civil Litigation Report was extensive. We developed our recommendations with the benefit of information gathered in private sessions, public hearings, and private roundtables. We considered submissions received in response to the redress and civil litigation consultation paper, as well as the public hearing on this topic.

The core need identified was for a single national redress scheme, established by the Commonwealth Government but funded by the institutions in which survivors were abused. Non-government institutions would be required to contribute more than half the costs of redress.

We recommended that an appropriate model for redress should include three core elements: a direct personal response; counselling and psychological care; and monetary payments.

I am pleased as are the other Commissioners that the Commonwealth Government accepted our recommendation although limiting the maximum payment to $150,000. The national scheme will commence on 1 July next year.

The direct personal response is important. Many survivors of sexual abuse have told us how important it is to them and to their sense of achieving justice. This response may include a genuine apology from the institution, an opportunity to meet with a senior representative of the institution and receive an acknowledgement of the abuse and its impacts, and a clear account of steps the institution has made to prevent such abuse happening again.

There have been redress schemes previously provided by some state governments although more limited than the national scheme. They have not generally included the funding of counselling and psychological care for survivors when required.

We heard in private sessions that counselling had helped many survivors process the abuse and feel stronger. Some found it helped them develop coping strategies, and to manage relationships.

Counselling assisted survivors to make meaning of the abuse. It helped with understanding the dynamics of abuse and why it happened, and the impacts of trauma on childhood development.

The trauma associated with sexual abuse cannot be cured at a specific time so that it will never reoccur. Survivors told us that some impacts may not appear for many years after the abuse. These impacts may be triggered by particular events or life stages, for example having children themselves or getting older and require increasing personal and institutional care. We recommend that counselling should be made available to survivors on a flexible basis throughout their lives as the need arises. The Commonwealth Government has accepted this recommendation.

Caring for people with complex trauma requires a flexible and individually focussed approach. We heard that some survivors prefer group therapies, while others find individual counselling more effective. They may choose to seek support through specialised sexual assault services, or counselling provided through the institution in which they were abused. Some prefer to go through broader support groups to access support.

The need for this care, and the most appropriate forms of care, can vary between survivors and life stages. Some survivors may need very intensive modes of therapy at times, then go years without requiring any mental health support. Others will require regular counselling throughout their lives. Still others may not ever engage with this kind of support, regardless of need.

Many of the general barriers to disclosing child sexual abuse, such as shame, stigma, mistrust and fear of authorities and institutions, and the expectation of a negative response, can impede a survivor's capacity to access support.

Survivors may have trouble identifying, accessing, and paying for appropriate services. Structural barriers such as short-term funding models and staffing issues can make it harder for survivors to access ongoing and affordable support.

We were told about health, mental health, and social work professional who lacked training in appropriate responses to trauma.

Some survivors spoke of receiving counselling that was damaging and retraumatising. They told us about providers dismissing or minimising the abuse and impacts, and blaming them for the abuse they experienced.

In some cases there was great focus on the details of the abuse but no discussion about the possibility of recovery. Some professionals did not ask about sexual abuse at all.

Literature suggests that general training in child sexual abuse is not adequate. This is consistent with what we have heard from survivors, support organisations, and experts.

We have recommended that psychological care should be provided by practitioners with the qualifications and expertise to work with clients with complex trauma. Professionals should be encouraged to engage with the appropriate training to increase their capabilities in dealing with clients with complex trauma. They should also be properly supported in this work. Finally, clients should be helped to find professionals with these capabilities.

We have a long way to go before we can confidently say our institutions are safer, children are better protected, and all of the people who have been abused and need help are receiving the treatment and support they need to lead productive lives.

Our work has shown that across many decades many institutions failed our children. Our child protection, criminal and civil justice systems let them down. Although the primary responsibility for the sexual abuse of an individual lies with the abuser and the institution of which they were part, we cannot avoid the conclusion that the problems faced by many people who have been abused are the responsibility of our entire society. Society’s values and mechanisms which were available to regulate and control aberrant behaviour failed.

Now that the Royal Commission is completing its work it is the responsibility of governments and institutions to consider and respond to our conclusions and recommendations. The Commissioners are aware of many initiatives already implemented to better protect children and respond to the needs of survivors. Although, inevitably, the Royal Commission has looked at past events it is important that the momentum for change which has been initiated by the Royal Commission’s work is not lost and that lasting changes to protect children are implemented.


 

[1] Memory Research ES p 2 and Criminal Justice report p 234
[2] Criminal Justice report p 236
[3] From Memory Research summary p 3
[4] From Memory Research summary p 2
[5] Verbatim from Memory Research  p 184
[6] Verbatim from Memory Research Conclusion p 145
[7] From ODPP speech, 2 August 2017