HJ Talks About Abuse

All-Party Parliamentary Groups: Hearings into “positions of trust” in faith settings

This week the Abuse team at Hugh James discusses the All-Party Parliamentary Groups (APPG): Hearings into “positions of trust” in faith settings.

The APPG is investigating whether the definition of “positions of trust” in the Sexual Offences Act 2003 ought to be amended to include faith settings.

Currently, this “positions of trust” covers educational, youth justice and medical settings. This is effectively to ensure, for example, a teacher who is 30 is not permitted to engage in a sex act with a student who is 17, despite that student being over the age of consent, which is 16.

This is because the nature of the relationship renders what is ostensibly consensual, non-consensual.  The reasons for this are many, but mainly because of the undue influence, power imbalance and vulnerabilities which surround the child in the context of the relationship.

It does not currently include within that definition faith settings.  As such, a priest who is 40 could have a sexual relationship with a child member of the church who is 17 and this would be legal. 

Hugh James were asked to speak to the APPG on behalf of the Ex-Jehovah’s Witnesses Advocates Opposing Crimes Against Children (the “Group”), as Sam Barker of the Hugh James abuse team represents the Group at the Independent Inquiry into Child Sexual Abuse’s upcoming hearings into safeguarding in faith settings.

It is the view of the Group that Jehovah’s Witnesses as a religion demonstrates perfectly why the law needs to change given the significant trust and power placed in adult male members of the faith, such that one of those members engaging in a sex act with a child in the congregation ought to be illegal.  However, the Group submits this is relevant to all religions.

The Group submitted that:

• The Jehovah’s Witnesses as a religious institution clothes men in official positions (such as a circuit overseer, elder or ministerial servant) with profound trust, power and authority as it is consistently conveyed that their appointments are approved by God’s Holy Spirit;
• The Jehovah’s Witnesses literature, which is frequently read at meetings, studied and said to be “spiritual food” from God, requires members to obey elders unquestionably and be submissive to them even when they act in error;
• The elders and to a lesser extent, ministerial servants, play a crucial role within a congregation which goes directly to the care, supervision, instruction and training of children within the congregation, whether that is through mentoring, spiritual guidance, evangelising, religious instruction and teaching through Bible study and meetings, spiritual investigations and/or judicial committee hearings;
• The significant power placed in elders within a congregation consequently has the effect of placing those men to whom the elders designate roles, duties and/or administrative functions with the same power, trust and authority;
• The role of adult men within the Jehovah’s Witnesses is absolutely paramount to the role of women and children and it is ingrained, particularly in children, to respect and obey adult men within the congregation (even if that person is not an elder or ministerial servant);
• The Jehovah’s Witnesses literature encourages all adults to take an active part in the mentoring of children in the teachings of the religion and the same literature encourages the children to trust the adult and they will benefit from this mentoring; and
• The roles allocated to elders and ministerial servants and indirectly allocated to other senior members of the Jehovah’s Witnesses in respect of children engage the same trust relationship which involves an imbalance of power, vulnerability and susceptibility to harm as those which are already covered by the Part 1 of the Sexual Offences Act 2003 but are not criminalised in the context of faith settings.

Overall, this change would put the UK in line with other common law jurisdictions like Australia, where this conduct is criminalised.  In Victoria, faith settings is included in the definition of “care, supervision or authority”, which is:

• “Without limiting the circumstances in which a child is under the care, supervision or authority of a person, a person (A) has a child (B) under their care supervision or authority if (A) is – 'a religious or spiritual guide, or a leader or official (including a lay member) of a church or religious body, however any such guide, leader, official, church or body is described, who provides care, advice or instruction to B or has authority over B'”.

All-Party Parliamentary Groups - Can adult survivors of childhood sexual abuse access justice and support?

The All-Party Parliamentary Group Adult Survivors of Childhood Sexual Abuse works to highlight the needs of survivors across the country, and to give a voice to their concerns in Parliament.

They published a report earlier this year: Can adult survivors of childhood sexual abuse access justice and support?

Part One: Achieving quality information and support for survivors, can be found here:

https://static1.squarespace.com/static/5c8faf788d97401af928638c/t/5cd05b45eb3931052c31b479/1557158727790/Achieving+quality+information+and+support+for+survivors.pdf

We were pleased to assist the APPG with its investigation, as we are concerned that survivors have to navigate a complex set of support systems to gain access to justice. Much of what is available is patchy and in our experience differs in quality. The system is very often hampered by a lack of knowledge, on the part of many whose task it is to advise survivors of their legal rights and entitlement to services.

Survivors are entitled to be treated as equal citizens and not as a class apart, which again is a frequent refrain. It is also worrying that those who have the ability to make a difference seem to treat survivors of CSA as somehow “different”. This just entrenches the problem. This causes real difficulty for survivors because they miss out too often on quality advice and assistance that would enable them to access the services they need and could make a real difference to their lives for example, specialist therapy.

We also see survivors not being told about their right to be compensated whether through criminal or legal proceedings. We are pleased to see that IICSA has recently recommended that this be put right. It is down to the Home office and Ministry of Justice to make sure that survivors are told of their rights to access justice, and that specialist help is available.

HJ Talks About Abuse: All-Party Parliamentary Groups - Positions of Trust in Faith Settings

There are calls for child protection laws to be updated so that those in faith settings who are in a position of trust can be prosecuted if they sexually abuse young people aged 16/17, as they are considered to be a responsible person.

Teachers for example are in a position of trust in relation to their pupils. It is a criminal offence if they abuse that position by having a “relationship “ with their pupil.  Readers will be familiar with the soap story line in Emmerdale, where a teacher had a longstanding sexual “relationship “ with a pupil.

The All-Party Parliamentary Group on Faith Settings has recently taken evidence on the issue and received submissions that those in positions of trust, for example elders, should be covered by the law too. Sam Barker, a solicitor in the Hugh James abuse team, made a submission in relation to Jehovah's Witnesses and argued that mandatory reporting is needed, otherwise the law may remain ineffectual.

The APPG took evidence that sexual abuse of young people in faith settings was possibly under reported and possibly not fully understood. Therefore, law reform was pressing.

HJ Talks About Abuse: Child Marriage

In the UK you cannot vote until you are 18, and you cannot get a tattoo either, but you can married…In this week's episode of the HJ Talks About Abuse podcast, Sam and I discuss Child Marriage.

“Child marriage” which is defined internationally as marriage under 18 - remains legal in Britain. In England, Wales and Northern Ireland, teenagers can wed at 16 with parental consent. In Scotland, they do not need consent.

The UN has said that governments around the world should make it illegal for children to get married. The age at which you can get married should be set at 18.

The reason being is that children and young people are being exploited and sexually abused through sham, forced and “arranged” marriages.

Nearly 2,000 young people in Britain, the vast majority of them girls, were wed before the age of 18 between 2010 and 2015, according to official data.

Although the numbers are low, campaigners believe most are pressured into marriage by their families. If the minimum age was raised, girls would be more empowered to say no, and society would accept it as the norm.

The impact of getting married young is similar wherever girls live. The consequences can be physical, psychological and practical. They are more likely to drop out of school and at a greater risk of marital rape, domestic abuse and health problems relating to teenage pregnancy.

The minimum age of 16 was set in 1929 when living together or falling pregnant out of wedlock was socially unacceptable. But campaigners fear that the “parental consent” clause for under 18s has now become an “open door” to forced marriage. The APPG at Westminster will hopefully take this up with the UK government.

Campaigners say it is time that Britain - which has been vocal about ending child marriage in developing countries - got its own laws in order. The UK could be breaching its international legal obligations for example, the Convention of the Rights of the Child.

The UK parliament needs to decide how to define a child. Should it be as an individual under the age of 18, without exception? There is a powerful argument that the answer should be “yes”.

It is important that children are recognised in the law as being children and that they are accorded the full protection of the law. Laws that set a minimum age of marriage are an important way to safeguard boys and girls from being married before they are ready.

Setting the minimum age of marriage at 18 provides an objective rather than subjective standard of maturity, which safeguards a child from being married when they are not physically, mentally or emotionally ready. Why allow children to marry at an age when, for example, they do not have the right to vote or enter into other contracts recognised in law? The most widely accepted definition for a child is 18, in line with the Convention on the Rights of the Child.

A minimum age of marriage of 18 will also help to ensure that children are able to give their free and full consent to marry and have the minimum level of maturity needed before marrying.

Pros and Cons of Redress Schemes

IICSA (Independent Inquiry Child Sexual Abuse) as part of its Accountability and Reparations investigation will be looking at redress schemes.

Redress schemes are often seen as vehicles to deliver justice to victims outside the litigation process. They naturally as a consequence have an attraction, but might it be superficial?

Justice of course can mean different things to different people. Usually the general components are:

• Compensation
• Recognition
• Apologies

It will be interesting to see what IICSA has to make of redress schemes when they come under its spotlight.

We know from our work with survivors that redress schemes can deliver justice when there is no alternative, perhaps, for complex legal reasons. We have experience of such schemes in a wide set of circumstances:

• State schemes such as those that operated in the Australian states
• The Historic Abuse redress scheme in Jersey
• The current Jersey Redress Scheme
• Lambeth
• Bespoke schemes in relation to offenders.

The success or otherwise of such schemes is very much dependent on the small print. The devil is often in the detail. Navigating successfully can sometimes be fraught and what ought to be straightforward turns out not to be, and can be very testing not just for the applicant but their lawyer too.

Redress schemes which might also be known in some contexts as compensation schemes can be found in non-sexual abuse arenas too.

There is the Windrush Compensation Scheme which was set-up by the government in the wake of the scandal that erupted when it came to public notice that some of those who came to the UK to live from the Commonwealth were being wrongly deprived to live and work here. This primarily concerned those who were of the “Empire Windrush” generation and their descendants. Redress under the scheme could mean compensation for loss of employment, homelessness, detention etc.

Applicants are encouraged to apply online. There is a right of review and there is no litigation.

How effective from an applicant the process and outcome will be, remains to be seen. There is a risk and concern that they might be under-compensated in comparison with what a court might award in the event of successful litigation.

There is also the miscarriages of justice scheme: MOJAS

MOJAS is available to all those who were innocent but convicted of a crime.

It is also open potentially for those victims of trafficking who would have had the benefit of protection under Article 26 ECAT.

Victims and survivors should always remember that there are time limits with schemes. They should never sit on the fence, but apply or at the very least seek expert legal advice.

Cardinal Pell Sexual Abuse Case Update - Appeal Verdict

Cardinal Pell was convicted in the County Court of Victoria by a Jury for sexually assaulting two children in the sacristy.  This was appealed to the Victorian Court of Appeal.

There were three central grounds of appeal, two were legal and one based on the factual outcome.  Those were:

1. Pell was not arraigned “in the presence of” the Jury pool. The argument being that the accused ought to be able to enter their plea in front of the potential Jury.  Given the size of the Jury, Pell entered the plea by video link.
2. Pell’s defence team was not permitted to screen to the Jury a video animation of the alleged crimes, which Pell says would have shown he was unable to commit the crimes as alleged without someone witnessing it.
3. The Jury’s verdict was so unreasonable that no reasonable juror would have arrived at that opinion on the basis of the evidence.

Split decision of the Court of Appeal, with all three judges agreeing on the two points of law and two of the three finding the Jury verdict was not unreasonable, the third finding that it was unreasonable on the evidence.

The unanimous opinion in relation to the first two points is not surprising – those are technicalities and do not result in a miscarriage of justice.  The judges in fact found that playing the virtual representation would have in itself been extremely prejudicial to the prosecution and would mislead the Jury.

The final point – whether the finding was open on the evidence, requires a very technical analysis of the evidence shown to the jury and the jury’s verdict.  It is not a matter of retrying the facts of the case; it is a matter of analyzing whether the verdict was open to the jury on the facts.  This is a very high bar because it is at first principle the jury which is required to be the arbiter of the facts – not the court.  Therefore, a substantial miscarriage of justice would need to be shown to overturn the jury verdict.

The Court of Appeal needed to assess this, along with an assessment of the complainant – is the complainant credible and reliable and the account detailed, consistent and plausible?  If so, then it is difficult to justify overturning the jury’s verdict and this is indeed what transpired.

Two of the three justices found the complainant a credible witness and so the verdict stands.

So where to from now?    

Pell has one final avenue of appeal – to the Australian High Court, the highest court in Australia. 

In order to do this, Pell must obtain leave from the High Court to bring the appeal.   Pell’s legal team will need to convince the High Court that:

1. Whether the proceedings involve a question of law that is of public importance or in respect of which the High Court is to resolve differences of opinion between different courts or within the one court, as to the state of the law; and
2. Whether the interests of or administration of justice require consideration by the High Court.

As outlined at the start, two of the questions were those of law and the Court of Appeal judges agreed unanimously.  It seems unlikely the High Court would consider these points of law – technicalities at that – are sufficiently important to the public to require consideration by the High Court.  

The third point – whether the jury verdict was unreasonable and not open on the evidence, is, as noted earlier, not a question of fact as the facts can’t be retried, but a question of whether, on an assessment of the evidence, the verdict was open to the jury and reasonable.

It is difficult to see the High Court granting leave for a third consideration of the factual matrix.  The importance of the jury assessing the evidence and returning a verdict in Australian criminal courts is enshrined in the constitution.  This is why the bar is so high in overturning the verdict.  The Court of Appeal then undertook the enormous task of itself analyzing the evidence and attending viewings of the same sacristy (the room in the church where the abuse was alleged to have been committed) the jury was shown and upheld the verdict – with one dissenting opinion.  The High Court engaging in further scrutiny appears to undermine the process itself. 

Further, what message does this send to survivors of sexual abuse?  Your allegation will not just be subject to examination by a jury, but also the Court of Appeal and then the High Court?  This wouldn’t, of course, be the case in most matters, but regardless, it is the message sent in this instance if Pell is allowed to make an appeal to the High Court.

The jury’s verdict has been scrutinized by fine legal minds.  The verdict was upheld.  A further examination would undermine the public’s faith in the judicial system.  Historic sex cases are by their very nature difficult to prosecute. 

The Australian Royal Commission into Institutional Responses to Child Sexual Abuse found that 57% of survivors first disclosed as adults and it took an average of 31.9 years to disclose.  This undoubtedly plays to the benefit of those who sexually abuse children.  There is no doubt evidence will not be of the best quality 31 years after the fact, but this should not avoid prosecutions for crimes involving child sexual abuse – instead, rigorous measures to scrutinize the facts should be implemented. 

In Pell’s case, this has occurred.  Pell had the best legal defence money can buy.  He was represented by two of Australia’s leading Queen’s Counsel – one of the best criminal defence advocates in the land and one of the best appellate advocates.  The facts were scrutinized by a jury and then a bench of three Court of Appeal judges.  The matter should be finalised.

Having said this, given the public division on the case and how seemingly important it is to many faithful – it might be that the High Court is convinced a third go is justified.

Male Circumcision and Genital Mutilation Laws

In the latest episode of the HJ Talks About Abuse podcast we discuss the legal and ethical questions raised by the practice of male circumcision, and we do so against the backdrop of FGM – female genital mutilation which as a practice is illegal in the UK.

First of all, we look at some definitions.

Circumcision

Male circumcision is the surgical removal of the foreskin (prepuce).

Male circumcision is one of the oldest known surgical procedures and is traditionally undertaken as a mark of cultural identity or religious importance, or for perceived health benefits such as improved hygiene or reduced risk of infection.

It is almost universally practised among Muslims and Jews, the religious justification for Jews coming from Genesis 17, which states that circumcision is a covenant with God and that all boys should be circumcised on their eighth day. Some of Australia’s Indigenous communities have performed circumcision from time immemorial. It can be an important initiatory rite. It also has significance as a community or family tradition for many individuals. A boy’s circumcision can be a highly valued part of their identity.[i]

Circumcision continues to be a significant part of the social and cultural identity of some communities. A man’s circumcision status can significantly influence his social standing and affect eligibility for marriage, employment and friendship. It can determine the standing of a man within his family. It can also affect their right to participate in social and business matters. Circumcision has a role in the initiation of boys into the rights and responsibilities of manhood in some communities. Circumcision can also be a part of a larger ritual. For example, community elders sometimes teach sacred lessons, stories, songs, and dances to boys undergoing a rite of passage circumcision ritual.

Female Genital Mutilation (FGM)

Female genital mutilation (often referred to as “FGM”), and sometimes as female circumcision,  is a collective term used for a range of practices involving the removal or alteration of parts of healthy female genitalia for non-therapeutic reasons. Different degrees of mutilation is practised by a variety of cultural groups in the UK. The two most common forms of mutilation are excision and clitoridectomy. Circumcision involves the removal of the hood of the clitoris, with the body of the clitoris left intact, although this term is often euphemistically used to cover a range of forms of mutilation. Excision involves total or partial removal of the prepuce, clitoris and/or labia minora. Infibulation is the total amputation of all of the external genitalia together with the stitching together of the remainder of the labia majora leaving only a matchstick-sized opening for the passage of urine and of menstrual blood. Other mutilations include pricking, piercing or stretching of the clitoris and/or labia, cauterisation by burning of the clitoris and surrounding tissues, scraping of the vaginal orifice or cutting of the vagina, and introduction of corrosive substances into the vagina to cause bleeding or herbs into the vagina with the aim of tightening or narrowing it. The age at which such procedures are carried out varies from a few days old to just before marriage.[ii]

All forms are mutilating and carry serious health risks yet the number of girls and women worldwide who have undergone genital mutilation is estimated at between 100 and 140 million, with 3 million young girls undergoing it each year.[iii]

The reasons given to justify female genital mutilation are numerous but generally relate to tradition, power inequalities and the ensuing compliance of girls and women to the dictates of their communities. In sociological studies, WHO reports that the following reasons have been given for female genital mutilation: custom and tradition; religious demand; purification; family honour; hygiene (cleanliness); aesthetic reasons; protection of virginity and prevention of promiscuity; increasing sexual pleasure for the husband; giving a sense of belonging to a group; enhancing fertility; and increasing matrimonial opportunities. FGM is frequently condoned by family members in order to conform to social norms. There are often multiple decision-makers involved in a decision to perform FGM on a girl. Many women believe that their circumcision, excision or infibulation is necessary to ensure marriageability and acceptance by their community. There is clearly a cross over here between the reasons given in some communities for male circumcision.

As well as being unethical, female genital mutilation is illegal in England, Wales and Northern Ireland under the Female Genital Mutilation Act 2003 and in Scotland under the Prohibition of Female Genital Mutilation Act 2005. Both Acts make it an offence for any person:

(a) to excise, infibulate or otherwise mutilate the whole or any part of a person’s labia majora, labia minora or clitoris; or

(b) to aid, abet, counsel or procure the performance by another person of any of those acts on that other person’s own body, or

(c) to aid, abet, counsel or procure a person to excise, infibulate or otherwise mutilate the whole or any part of her own labia majora, labia minora or clitoris.

Both Acts also make it a criminal offence in certain circumstances to carry out female genital mutilation abroad, and to aid, abet counsel or procure the carrying out of female genital mutilation abroad, including in countries where the practice is legal.

These prohibitions are not absolute, and both Acts permit surgical and obstetric procedures that may fall within these categories if they are carried out by an appropriately registered practitioner either during childbirth or for the physical or mental health of the patient. There has been limited clarification of the circumstances in which procedures falling within this definition might be necessary. Valid exceptions to the prohibition on FGM are listed in the Explanatory Notes of both Acts and include surgery for gender reassignment, cosmetic surgery resulting from perceived abnormality, and operations to remove malignant tumours. There has been little clarification of the circumstances in which FGM might be necessary for mental health purposes. It is clear, however, that in determining whether an operation is necessary for the mental health of a person, “it is immaterial whether she or any other person believes that the operation is required as a matter of custom or ritual”.

The case for male circumcision

We need to distinguish between medical reasons that are therapeutic reasons for circumcision and non-therapeutic reasons.

When we discuss male circumcision we are usually referring to baby boys or pre-pubescent boys, where they are not of an age to give consent. It is their parents who make the decision.

There may be medical reasons why circumcision is necessary (for example phimosis), and so the legal questions raised if any revolve around the need for surgery and the giving of informed consent by the patient.

It has been generally accepted that the circumcision of baby boys and young boys has been and is legal. Proponents of male circumcision argue that it is lawful and rely on the House of Lords’ decision in R v Brown [1993] 2 All ER 75:

 “Even when violence is intentionally afflicted and results in actual bodily harm, wounding or serious bodily harm the accused is entitled to be acquitted if the injury was a foreseeable incident of a lawful activity in which the person injured was participating. Surgery involves intentional violence resulting in actual or sometimes serious bodily harm but surgery is a lawful activity. Other activities carried on with consent by or on behalf of the injured person have been accepted as lawful notwithstanding that they involve actual bodily harm or may cause serious bodily harm. Ritual circumcision, tattooing, ear-piercing and violent sports including boxing are lawful activities”.

in the 1990s the Law Commission said that although in its view ritual circumcision was lawful, law reform to “put the lawfulness of ritual male circumcision beyond any doubt” would be useful, but this has yet to happen.

There have been no decisions on the lawfulness or otherwise post the HRA 1999. Rights that might be relevant to non-therapeutic circumcision include:

Article 3: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 5(1): “Everyone has the right to liberty and security of the person.”

Article 8: “Everyone has the right to respect for his private and family life” except for the “protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 9(1): “Everyone has the right to freedom of thought, conscience and religion.”

Article 9(2): “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

It could be argued that in light of the HRA the position is now conclusive in that a boy cannot undergo circumcision unless he is of an age to consent to it, but is that right?

Circumcision is by its very nature an assault to the body and prima facie a criminal offence, and one that infringes, potentially, the boy’s HRA rights. His parents would say and, presumably the medical practitioner, or the person performing the procedure, a necessary one that was in his interests?

They would again presumably argue that the position is akin to their consenting to their son undergoing a necessary medical procedure and, therefore, in his interest?

The question to be asked is circumcision ever in a boy’s interest when in fact it is medically unnecessary?

Whilst proponents point to potential medical benefits for example that according to the World Health Organization (WHO) there is "compelling evidence" that circumcision reduces the risk of contracting HIV during heterosexual sex by 60 per cent, they appear to be at best marginal.[iv] Critics complain that removal of the foreskin leads to a loss of sensation in the glans. Negligently performed circumcisions can lead to even more serious outcomes. Statistically, such outcomes are very low.

At first blush, logic would dictate that if FGM is wrong then male circumcision must be too. Moreover, in light of the HRA, that consent of the boy is required. Maybe, however, this is too simplistic and ignores the argument that it is a procedure, that is not completely risk-free, but does confer some benefits[v]

The corollary between FGM and male circumcision is a misplaced one it seems given that it is recognised that FGM causes physical harm and so is considered mutilation with serious and often permanent damage, whereas although whilst male circumcision is not risk-free, it does not constitute mutilation.

The real issue is whether it is in the boy’s interest from a community or societal benefit and whether that overrides the fact that he has not consented or made the decision himself?

He, after all, is the one after all left the consequences for better or worse. He will have undergone a significant medical procedure which is not totally free of risk (the risk is very low but, nevertheless, is real) and could have profound physical and psychological consequences.

Parents who have their sons circumcised would no doubt say as they do that they would that consent on their part would not be forthcoming is caused harm. On the contrary, to causing harm they say it brings benefits that it enhances his well-being for example by becoming part of a religious community.

If parents can objectively point to benefits outweighing any perceived harm, or real risk of harm, then it is difficult to conclude that boys’ HRA rights are being infringed, or that an injury has been inflicted that amounts to the offence of assault or a civil claim for damages. If, however, the procedure is negligently performed than that could well give rise to liability both criminally and in tort.

 

[i] http://www.bradshawfoundation.com/unambal/circumcision_initiation.php ;WHO: Traditional Male Circumcision among Young People (11.09); BJU International (1999), 83, 17–21

[ii] https://www.who.int/reproductivehealth/topics/fgm/health_consequences_fgm/en/

[iii] https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation

[iv] https://www.who.int/hiv/topics/malecircumcision/en/

[v] https://www.bbc.co.uk/iplayer/episode/m0006wj8/a-cut-too-far-male-circumcision

Sexual Abuse in schools

In recent weeks we have seen three devastating news stories documenting the sexual abuse of children in an environment where they ought to flourish – school.

In Essex, former freelance teacher Kenneth Francis was found guilty of 15 counts of indecent assault and two counts of gross indecency committed while he was a teacher at Widford Lodge Boarding School in Chelmsford, Essex, in the 1970s.

In Portsmouth, Sean Aldridge, 37, a former teacher at Warblington School in Havant, Hampshire, was found guilty of 24 counts of sexual activity with a child.  Rather unbelievably, Mr Aldridge was the school’s safeguarding lead.  During the three-week trial, Portsmouth Crown Court heard that Aldridge, from Southsea, targeted four girls aged 13 to 16 between 2006 and 2012 on school premises and in his car.

In Burnley, Father Michael Higginbottom, the school priest at St Joseph's College, in Lancashire was jailed for 18 years for sexually abusing two boarders in the 1970s and 1980s.

There is a common theme amongst the words stated by the sentencing judge in all the cases – the abuse of trust was of the highest degree.  This is, of course, unsurprising.  The very idea of a teacher or a school priest using their position of trust, power and authority to sexually abuse students in their care pierces the very foundation of schooling – an expectation the student will be educated in a safe and beneficial environment.

When parents drop off their children at the school gate they are placing in the school a special degree of trust, they expect the teachers will step into their shoes and care for their children.  In doing so, the parents are at a distinct vulnerability and disadvantage as they are not on the school grounds during the day. 

Similarly, the students are in a position of vulnerability.  They are taught to defer to authority within the school, which manifests itself in the teaching staff. Their teachers are the ultimate authority in the classroom. 

It is, of course, unsurprising that many survivors report being threatened by the teacher with punishment, disbelief or violence after the abuse and those threats were taken seriously thereby securing the student’s silence.  

This conduct is obviously criminal and the abusers in the above cases have thankfully received lengthy sentences.  But many survivors are left wondering after the criminal case – who is liable to pay for the damage I have suffered?

In this circumstance, the law is fairly clear – it is the school or the local education authority.

The law in relation to education has developed over the years to the point where it can be said rather definitively that a school owes a student a “non-delegable” duty of care which, if breached, gives rise to a claim in negligence and a school, as the employer, can be vicariously liable for sexual abuse committed by a teacher against a student.  Of course, each case depends on its own set of facts.

The first of those principles – a non-delegable duty of care, was confirmed in the Supreme Court case of Woodland v Swimming Teachers Association [2013] UKSC 66.  In that case a student tragically suffered a brain injury during a swimming lesson which was part of the school curriculum.  The lesson did not occur on the school premises and the swimming teacher and lifeguard were both employed by an independent contractor.  Despite this, the school was found to be liable.

In short, a non-delegable duty of care cannot be discharged by entrusting its performance to an independent contractor.  The school must satisfy itself that reasonable care will be taken by the independent contractor in the performance of those duties and cannot escape liability by simply contracting out.  Again, much of this is justified in a policy sense because of the particular vulnerability of children when in the care of the school.

In the context of sexual abuse, the school would need to satisfy itself that proper checks are carried out to ensure the suitability of independent contractors engaged to provide services to students in their care.   An example that jumps to mind is music lessons arranged by the school as part of the curriculum but using independent contractors.

The second, and more direct form of liability, is that of vicarious liability.  If established, this will render the employer liable for the criminal acts of the employee which, in these circumstances, would be the school (or local education authority) being liable for sexual abuse perpetrated by a teacher.

The doctrine of vicarious liability requires two limbs to be established:

1. A relationship of employment (or a relationship “akin to employment”) between the wrongdoer and the person and/or entity purported to be liable; and
2. A close connection between the acts the wrongdoer was engaged to perform and the wrongdoing.

The first limb will almost always be made out in a school context as the teacher will be engaged on a formal contract with the school.  The second limb requires more nuance.  The court will assess the field of activities allocated to the teacher widely, so in circumstances where the abuse occurs in, for example, the context of teaching the class, or a boarding master managing the boarding house or a music teacher instructing music lessons then the close connection will be established.

Both circumstances account for the fact that such high degrees of vulnerability, trust and power exist in the teacher-student relationship and a correspondingly high degree of care and control is placed in the school when the parent drops the child to the school gate and as such, it is fair, just and reasonable to impose liability for harm sustained by the student.

Applying the law to the facts of the three cases discussed at the outset, it is clear that the school and/or the local education authority would be liable in each case. 

In the Essex case, whilst Francis was a freelance teacher, the school nonetheless owed a non-delegable duty to those students who were abused and a failure to take reasonable steps to ensure those students were protected from harm would resound in liability, but so too would the school be vicariously liable for those acts, particularly where Francis abused some students below the school stage and were rewarded for doing so with stars.

In the Hampshire case, it is clear cut vicarious liability for which the school and/or the local education authority would be liable.  Aldridge used and abused the trust and authority placed in him by the school to commit the sexual abuse.

In the Lancashire case, much would depend on the nature of the engagement of Higginbottom as the school chaplain as to whether the school or the religious institution would be vicariously liable.

Of course, the examples above are not to be taken as legal advice as the surrounding facts are not known in depth and our discussion is merely speculative.

In any circumstance where a child has been abused in an educational context, or even just on school grounds, then expert legal advice should be sought. 

Issues surrounding catfishing

In the HJ Talks About Abuse podcast, we often try to keep up with the news and in particular, developments in online sexual exploitation so our listeners are aware of what is out there in the ever-changing technological world.

Recently we have seen a Northern Irish man face court in what is touted as the UK’s biggest “catfishing” child abuse investigation.  The facts are, of course, bizarre and alarming.

But first, what is catfishing and should you know about it?

Catfishing is a type of deceptive activity where a person creates a “sock puppet” social networking presence, or fake identity on a social network account, usually targeting a specific victim for deception.

Catfishing is often employed for romance scams on dating websites. Catfishing may be used for financial gain, to compromise a victim in some way, or simply as a form of trolling or wish fulfilment.

This might not make the situation any clearer, so by way of example, we have noted the plot of the 2010 American (alleged) documentary Catfish which follows a young man, Nev, as he builds a romantic relationship with a young woman named Megan on Facebook. 

The relationship started when Megan’s young sister Abbey sent Nev a painting which showed talent far beyond her years.  This led to Nev being in contact with all of the family including the mother, father and attractive older sister – Megan.

The relationship blossoms online as Megan sends Nev art work and songs purportedly created by her, along with photos of herself.  On later investigation Nev finds the songs were lifted from YouTube and other lies about the young sister’s art career come to be known.

The film crew follow Nev to the family house where they meet Angela, the mother of both Megan and Abbey.  Angela constructs a series of lies about her health and the family situation to avoid Nev meeting the remaining members of the family. 

In the end, it transpires that Angela is playing all of the characters in this fake Facebook life and Nev had been corresponding with the one person the entire time.  Over the course of nine months there were over 1,500 messages exchanged.

The documentary illustrated the concept of creating a fake online personality in an elaborate rouse to live out a fantasy life – now represented by the term catfishing.   

However, this term has now evolved to represent a range of online behaviour which can be both criminal and extremely dangerous to young people on social media.

The case in Northern Ireland saw Alexander McCartney charged with possession, making and distributing indecent images of children as well as sexual activity with a child and intimidation to commit sexual activity with a child having occurred between May 2018 and July 2019.

The prosecution said it is estimated that McCartney had more than 300 alleged victims, who he often contacted on social media.

The court heard that McCartney would befriend a child by pretending to be someone else before asking them for an image.

He would later write to the alleged victim telling them if they didn't do as he said, he would show the nude photographs for the entire world to see.

The prosecution said that the children targeted, aged between 10 and 12 and mostly female, were "left in distressed states".

The court also heard that McCartney had also been selling indecent images on a fraudulent account, through which he earned £700 in three weeks.

This demonstrates a very real threat in social media – one often does not know exactly who is on the other end of the platform or communication device.

In this podcast, we have addressed many concerning developments in the online world regarding social media and child sexual abuse.  It is obvious that the sinister motives and ways in which those can be carried out are developing faster than law enforcement or the social media companies can to combat such crimes.

So, what can be done?  Unfortunately, in our view, the best immediate solution is education so children can manage the risks posed online when using social media and their parents can be alive to those risks. 

Whilst this solution is obviously not ideal, it would be imprudent to simply wait until the parliament can properly regulate the social media industry to self-police in a more robust and proactive way.

Sexual abuse storylines in the soaps

In recent months we have two very powerful sexual abuse storylines in the Soaps and we are now set for a third.

Hot on the tail of Maya and Jacob in Emmerdale we have the ongoing story of Jim in the BBC’s The Archers. Jim is a “regular” and the father of veterinary surgeon Alistair, and they live with Jazzer.

Following Jim’s unexpected departure from his “surprise” birthday tribute night, Ambridge residents speculated as to what could have caused Jim’s sudden attitude change. They saw him become withdrawn, hostile and unpredictable. On arrival at his party, he was confronted by the sight of his childhood abuser, who had been unwittingly invited.

With his long-kept secret finally revealed, Jim now faces the painful challenge of coming to terms with his past, and it would seem that this is going to become increasingly difficult because unknown to him, Jazzer has reported matters to the police of his own volition.

Victims (or survivors) are often effectively forced to disclose because the police have learnt of allegations from another source, maybe another victim, or a relative.

Coronation Street has confirmed what is described as a harrowing historic sex abuse storyline for Gemma Winter's twin brother Paul, who viewers will discover has been abused by his stepdad Kel.

Apparently, over the next few weeks, Kel will be reunited with Bernie and is brought back into their lives. While Gemma and Bernie are happy to have him back, Paul is clearly unnerved and struggles with him being around again.

What Gemma and their mum don't know is that Paul was sexually abused by Kel when he was a young teenager and groomed into believing that they were in a consensual relationship

But Paul's boyfriend Billy Mayhew later discovers what has happened to him and tries his best to help him see that he was being sexually abused.

Viewers will watch as Paul struggles to come to terms with what has happened to him and later fight for justice.

Whilst we take issue with the term “historic” this is another powerful storyline which explores the issue of disclosure and the coming to terms of sexual abuse. We see how family relationships influence the decisions that victims have to make when having to address the past.

The stories also show how the wishes and attitudes of others can be very powerful and can conflict with the wishes of the victim. For example, in the case of Jim, he finds that his own wish to get on with life is not respected by Jazzer who reports matters to the police. Was and is Jazzer right to do this? He thinks he is, but the likelihood is that for better or worse Jim loses control of his future.

It is very easy for others to impose, often with the best of motives, their own opinions as to what should happen following disclosure. In our experience, the victim should be placed in a situation where their opinion is the one that counts, and this is what should be respected. These cases albeit fictitious demonstrate how a holistic approach needs to be taken so that victims can be empowered to make decisions following disclosure of the sexual abuse.