HJ Talks About Abuse

Jersey Redress Scheme update

The Government of Jersey has opened a new redress scheme for people who, as children, were abused or suffered harm between 9 May 1945 and 31 December 2005;

• while a resident in a Government of Jersey children’s home
• while in a Government of Jersey foster care placement
• while accommodated at Les Chênes secure residential unit.

You may be entitled to compensation.

The Schemes  are in two parts:
PART 1 Les Chênes

Redress for people who, accommodated at Les Chênes secure residential unit, suffered due to the harsh regime and whose experiences at Les Chênes had a negative impact on their childhood. From 2003 Les Chênes secure residential unit was also known as Greenfields.

PART 2 Children’s homes

Redress for people who were sexually and/or physically abused while a full-time resident in a Government of Jersey children’s home or while in a Government of Jersey foster care placement. It is very important that you apply to the correct scheme. If in doubt obtain legal advice.The application form that has to be submitted is a document that requires care when completing.

Detailed information concerning your time in care is required.

Redress payments
PART 1: Les Chênes

The total amount of time you lived at Les Chênes will determine your payment. This will be based on the number of nights or weekends spent at Les Chênes. It will not include time you spent there during the school day, or any time when you were on the Les Chênes register but were staying at home or elsewhere.

You may also receive an additional payment if, while you were living at Les Chênes, if you were subject to inappropriate and unlawful physical abuse. This could include manhandling by staff or treatment that constitutes physical abuse, but which did not result in significant injury or long term harm. You will be asked on your application form to provide details of the inappropriate physical treatment.

Total time living at Les Chênes Redress payment	Additional payment for inappropriate physical treatment
7 days or less £1,000	£500
Between 8 days and 50 days £2,500	£1,000
Between 51 and 100 days £4,000	£1,500
Between 101 days and 270 days £8,000	£2,500
Over 271 days £10,000	£4,000

                                                

PART 2: Children’s home and foster care

Your redress payment will be determined after looking at the abuse you suffered and the harm it caused you.
The amount will reflect the nature, severity and frequency of the abuse you suffered, and any physical and psychological injuries or long-term effects.

Description	Redress payment
Physical abuse and/or sexual abuse: limited long term effects.	Up to £11,500
Aggravated physical abuse with significant long term psychiatric/ psychological effects and/or aggravated sexual abuse	£11,500 to £23,000
Prolonged aggravated physical abuse with significant long term psychiatric/psychological effects and/or rape and/or sexual abuse involving penetration (with or without physical abuse)	£17,500 to £41,000
Rape and/or sexual abuse involving penetration (with or without physical abuse) with significant long term psychiatric/psychological effects	£29,000 –£70,000

If you are making a Part 2 application you may also be awarded up to £3,000 to pay for therapeutic or medical treatment for the psychiatric or psychological effects of the abuse you suffered.

We have summarised the main points of the two schemes. Please note there are exceptions to eligibility and therefore we again emphasise the need for expert legal advice.

Full details are set out in the Redress Scheme’s terms and conditions which you can get from the Redress team or online at www.gov.je/redress

You may be entitled to compensation. You should obtain expert legal advice.

For the last three years we have represented many of Jersey’s abuse survivors and have advocated for the creation of a redress scheme for those detained at les Chenses.
For more information about these issues, visit the Hugh James Sexual Abuse team and get in touch. 

Consent, sexual abuse and social media

“Give us your phone or we’ll drop your case” is just one of the arguably sensationalist headlines that appeared in the media in the last couple of days in response to the news how police and prosecutors use information from the mobile phones of people who report rape or other sexual offences. This rightly or wrongly has caused some consternation and confusion.

There have been by way of background two high profile rape cases which provide some context.

There is the case of Liam Allan who faced being convicted of rape. Disclosure of text messages from his accuser suggested that the sexual offences she complained off were arguably consensual. The content of the messages painted a very different picture apparently to the one that she had given as part of the prosecution.

There is the case of Alex Hepburn the ex-Worcestershire cricketer who has been convicted of rape. He had set-up a sexual contest “game” on WhatsApp which undoubtedly was of interest to the jury trying his case when considering his claim that his victim had consented to the sexual offence that he had subjected her to.

The relevance of these two cases is two-fold:

1. Consent
2. Social media and electronic information used as evidence

Looking at consent this is defined by section 74 Sexual Offences Act 2003.

Someone consents to vaginal, anal or oral penetration only if s/he agrees by choice to that penetration and has the freedom and capacity to make that choice.

Consent to sexual activity may be given to one sort of sexual activity but not another, e.g.to vaginal but not anal sex or penetration with conditions, such as wearing a condom. Consent can be withdrawn at any time during sexual activity and each time activity occurs.

In investigating the suspect, it must be established what steps, if any, the suspect took to obtain the complainant’s consent and the prosecution must prove that the suspect did not have a reasonable belief that the complainant was consenting.

The realities of modern life mean that many of us communicate, and some more than others, by means of text and other forms of communication. Inevitably such communications potentially become evidence viz evidence of guilt or innocence.

The rape cases of Allan and Hepburn are good examples of where electronic communications in its widest sense have formed evidence that points to innocence or guilt.

Concerns about access to private communications are understandable. It is readily understood why victims may find it intrusive and a further invasion of their privacy. It follows though that the contents of mobile phones, for example, may help convict abusers. Conversely, they may assist justice in disproving an allegation.

The Crown Prosecution Service has advised that mobile phone data, or social media activity, will only be considered by the police when relevant to an individual case.  

The CPS has made it clear that for an investigation to proceed and be fair for both complainants and suspect, all reasonable lines of enquiry must be pursued. This is not new and the policy has not changed - mobile devices will not be needed in every case - but when they are, there is explicit guidance that only material relevant to a particular offence may be pursued, to minimise unnecessary intrusion. This applies to all offences and is not restricted to allegations of sexual offending.

More detailed information and advice will be found on the CPS website at: cps.gov.uk

The position as advised by the police and CPS should be welcome because it reflects modern life and the  necessary steps to ensure  that evidence is secured to assault in the conviction of sex offenders. The vast  majority of offences are committed behind “closed doors” which mean there are inevitably no witnesses, and so the police and prosecution are dependent on medical evidence, and that lies in the form of electronic communications.

For more information about these issues, visit the Hugh James Sexual Abuse team and get in touch. 

Abuse in religious institutions: Judaism

The Hugh James abuse team is running a series of podcasts into sexual abuse in religious contexts, but rather than focus on those which are often reported in the media, we will discuss religions which are often overlooked.  In this three-part series, we will look into Judaism, Islam, and Baptists.

The prevalence of child sexual abuse in religious institutions has recently been highlighted by the Truth Project’s thematic report.  In that report, Judaism and Islam represented only 1%, respectively, of the sample analyzed.  But does this mean those religions have less of a problem with child sexual abuse than other religions?  The results would suggest this is the case.

However, a study conducted in the United States would suggest otherwise.  Dr. David Rosmarin of Harvard and Dr. David Pelcovitz of Yeshiva University published a study entitled “childhood sexual abuse, mental health, and religion across the Jewish community” which posits the prevalence of any form of child sexual abuse was statistically equivalent to national rates (save for involuntary penetration of women, which was less).  The study found that individuals who had left the Orthodox community are more than four times as likely to have been molested as children than the general population.  Notably, in that context, a history of involuntary penetration was greater among formerly, but not presently, Orthodox Jews. This suggests those who leave the Orthodoxy possessed a higher likelihood of having experienced sexual abuse. The study concludes that childhood sexual abuse was found to occur across the spectrum of Jewish religious affiliation, with greater prevalence among formerly Orthodox individuals.

As such, the results compiled by the Truth Project in this instance might well be misleading, inadvertently of course.  It begs the question – is there underreporting of child sexual abuse in the Jewish community? 

To flesh out this issue, in our view it is relevant to focus on two things – a study produced by David Katzenstein of New York University and Lisa Fontes of the University of Massachusetts and a case study of an Australian Supreme Court case of Erlich v Leifer.

To start with the article – the title might give you some indication as to its main thesis: Twice Silenced – The Underreporting of Child Sexual Abuse in Orthodox Jewish Communities.  The article notes from the outset that CSA appears to be as prevalent in Orthodox Jewish communities as elsewhere.

We would like to highlight what we believe is a very important point from the outset – the report states in the opening paragraphs that “where religious authorities do not follow their legal obligations to report CSA, those children who are isolated from institutions outside the religious community, such as when they are schooled either at home or in religious institutions, appear to be at special risk for continued abuse over time without intervention”.  This is particularly relevant to religious institutions such as Jehovah’s Witnesses, which we hope the IICSA will shine a very bright light on in the upcoming hearings but also represents how this can lead to problems in religions with strict orthodoxy and a desire to be very closed in.

Within the Jewish faith, like many, CSA is abhorred. Some Rabbis have understandably called CSA a “matter of life and death” because of its far-reaching harm. So why then, does it continue and why is there underreporting in respect of CSA in the Jewish community?

Katzenstein and Fontes posit that the underreporting reflects both the systemic reasons for this in minority religions, and some reasons which are specific to Orthodox Judaism.  For the former case, feelings of shame and self-blame and fear of disclosure lead to underreporting, and for the latter, the laws of Mesira and Loshon Hora for example, which is very specific to the Jewish community.

Interestingly, an early scholar on this subject, referenced as Featherman in the report stated that “as a minority culture with a long history of persecution, Jews have learned not to draw attention to their differences or take actions that might bring shame or notoriety to their families, including reporting CSA to secular authorities”.  This lines up well with the conclusions of Katzenstein and Fontes that five overarching themes emerge when looking at reasons for the prevalence of underreporting and those are:

1. Mesira and Loshon Hora (prohibitions against reporting to secular authorities and of speaking ill of a fellow Jew);
2. Fear and intimidation;
3. Stigma and shame;
4. Reliance on rabbinical courts; and
5. Patriarchal gender roles

The first point there is one we will deal with in more detail, as it is likely something most listeners have never heard of.  The law of Mesira equates communication with secular authorities to report another Jew’s transgressions with treason and Loshon Hora, a prohibition against speaking ill of others, is often considered to be the reason that abusers cannot be publicly named. Loshon Hora is a serious biblical sin that encompasses all manners of speech including gossip, slander, and derogatory speech against a fellow Jew.  It should be noted that the Rabbinical Council of America in 2003 noted that reporting sexual abuse does not violate Mesira, and many Rabbis have spoken out that those laws are inapplicable in cases of CSA. But one must consider the practical realities of such laws and the inherent effect it might well have, as is the case in many religions where the practical effect of a practice is different than the publicised explanation.

The next point of interest is the reliance on rabbinical courts. Rabbinical courts have adjudicated civil matters for generations but have no power to detain, arrest or jail.  Katzenstein and Fontes report that reports of CSA have been taken to these courts which have sometimes investigated the allegations, pledged to monitor the accused and at times ordered restitution to a survivor but typically did not inform the police. Unsurprisingly, many reports state that the courts are woefully unequipped for the forensic investigation of allegations.

Katzenstein and Fontes conclude that while the Catholic Church is structurally one centralized institution with a single authoritative figurehead and in this way differs from the array of institutions in Orthodox Jewish communities, the propensity to protect the reputation of communities, institutions, and leaders over protecting and safeguarding child victims is sadly similar.

The barriers to reporting as highlighted in the study are not altogether surprising, as we see similarities between religious institutions and CSA generally, and those which have esoteric rules and laws which pertain to those within the institution itself.

Of course it is relevant to note that the study was conducted in the USA and is centrally relevant to the communities focused on, but nevertheless, one must consider the application of the findings in communities across the world.

One highly reported case which made it to the courts outside the USA is the case of Erlich v Leifer in Victoria, Australia.  The claimant, Dassi Erlich was sexually abused by the school principal, Malka Leifer.  A 2017 story in the Australian summed up the case well:

Erlich was only 15 years old and no one in her ultra-orthodox Adass Jewish neighbourhood in East St Kilda knew then that she was being abused by a doyenne of that community, the respected female principal of the Adass Israel School. Erlich herself would not understand what it all meant until years later, when memories haunted her and then almost killed her.

She would have to reject the tightly knit religious community of barely 2000 people and all she had known in order to seek justice. Then came the police statements, the court case, the million dollars in damages and the stunning news that her community leaders had spirited Leifer out of Australia in the dead of night to Israel, where she continues to evade justice. In a cruel twist, Erlich also learnt that two girls close to her were abused by the same woman.

The case has garnered international notoriety not only due to the sexual abuse, but due to the sheer disrespect for the law of the land and the survivor shown by the community leaders who assisted in Leifer being able to escape Australia before she was arrested.  Leifer remains in Israel and has resisted a number of extradition attempts to be brought to justice in Australia.

Former Victorian Supreme Court Judge Jack Rush analyzed in detail the structure of the school, the community and the role of Leifer and found an extremely tight knit, inward community.  Justice Rush rejected evidence that secular and religious studies were equally important, finding that the Strategic Plan of the school was to, amongst other aims, produce “graduates who are able to preserve Orthodox Jewish traditions and practices and pass these on to the next generation”. In short, the focus on the religion and the community was paramount and Leifer, as the principal, was the operating mind and will of the school, with supreme authority.

It became evident through the evidence provided by members of the board, one of which a Barrister at the Victorian Bar, that their stories in relation to the lead up to Leifer’s departure was inconsistent. It was clear however, that there was knowledge of more than one victim (in fact, three), that no report was made to the police of the abuse initially and an Adass community member paid for the airline tickets of Leifer and her family to Israel. Much could be said about this sequence of events, and arguably facilitating Leifer’s avoidance of the Australian authorities, but Justice Rush aptly summed up the sequence of events as “extraordinary” and he was unable to understand what legal obligations required the school to pay for the airfares of Leifer.

This case is an interesting and telling case study into a closed culture which was highly resistant to the publicity the sexual abuse might attract, and the involvement of secular authorities from the outset.

Justice Rush ordered the school to pay $1,024,428 in damages.  Leifer remains at large and the most recent attempt at extradition was in June 2018, following which Leifer was placed under house arrest and under supervision of a local rabbi. This is of patently unjust and Leifer ought to be extradited and face Australian courts for her crimes.

Online child sexual exploitation

In this week's episode of HJ Talks About Abuse, we look at the important topic of online child sexual exploitation. This is a major issue that has come to light over recent years. We look at some cases that highlight the problem, how it is being dealt with currently and what can be done to improve the way we deal with the problem, not just at a national level, but internationally too.

In May 2019, former army officer Andrew Whiddett was sentenced to 3 years and 2 months in prison for 6 child sex charges.

The National Crime Agency has confirmed that Whiddett made 49 payments totalling £8,584 between January and July 2017 to set up and watch child abuse.

Whiddett targeted Filipino children abroad and even proposed visiting the Philippines to abuse a child in person.

As put by the NCA officer Gary Fennelly, "Whiddet thought he could get away with abusing Filipino children from the comfort of his own home" but this is not the case.

The BBC has reported Whittet directed the live-streamed abuse over Skype with known child sex abuse facilitators.

As a result, he pleaded guilty to arranging the commission of a child sex offence and attempting to cause or inciting a nine year old girl and another girl under the age of 16 in sexual activity.  He was convicted in relation to other charges.

This case represents a modern day form of sexual abuse which has become tragically all the more common in our society.  The armchair pedophile is now able to use the internet to further their perverse sexual desires and ruin the lives of vulnerable children in disadvantaged countries and communities. 

Whilst the risk of travelling sex offenders, or “child sex tourists”, still exists and remains a serious risk to children abroad, the sad fact is with the use of the internet, the dark web and crafty cyber criminals, some of those sex offenders do not even need to leave their own homes to commit sexual abuse.

In respect of child sex tourists who travel abroad to disadvantaged countries to offend against children, the abuse team at Hugh James appeared on behalf of Father Shay Cullen of PREDA, a charity helping children affected by sexual abuse in the Philippines, at the Independent Inquiry into Child Sexual Abuse and the hearing into the Protection of Children outside the UK. 

The thrust of Father Cullen’s submissions went to the prevention of this kind of sexual abuse abroad. The best way to do so in our view is investment into local prosecutions in the UK for offending which occurred abroad, which requires further budget to be allocated to the collection of evidence in those countries. Further, the confiscation of the passports of known child sex offenders to cut off their ability to travel to such countries from the outset. We hope the Inquiry will make meaningful recommendations to help in reducing this harm causes by child sex tourists.

Today we will discuss this concerning issue of online abuse, the involvement our team has had in such work in the past and the potential civil liability which, in our view, should follow such conduct.

To illustrate the seriousness of this problem, we note the following data collected by the Internet Watch Foundation (founded by Microsoft) in May 2018.  The UK report is titled “trends in online child sexual exploitation: examining the distribution of captures of live-streamed child sexual abuse”.  During this study, 2,082 images and videos were examined to generate some results and trends. The results, frankly, are disturbing.

The images were divided up into three categories, those categories are as follows:

• Category A: images involving penetrative sexual activity with an animal or sadism.
• Category B: images involving non-penetrative sexual activity.
• Category C: other indecent images not falling into categories A or B.

The results are as follows:

• 96% depicted children on their own, typically in a home setting such as their own bedroom.
• 98% of imagery depicted children assessed as 13 years or younger.
• 96% of the imagery featured girls.
• 40% of the imagery was Category A or B.
• 100% of the imagery had been harvested from the original upload location and was being redistributed on third party websites.
• 4% of the imagery was captured from mobile-only streaming apps.
• 73% of the imagery appeared on 16 dedicated forums with the purpose of advertising paid downloads of videos of webcam child sexual abuse.

The Child Exploitation and Online Protection Command Unit at the NCA has published some helpful definitions which assist in differentiating between abuse and exploitation.

The NCA states that:

Child Sexual Abuse involves forcing or enticing a child to take part in sexual activity, whether or not the child is aware of what is happening. This may include activities such as involving children in looking at, or in the production of, sexual images, watching sexual activities, encouraging children to behave in sexually inappropriate ways or grooming a child in preparation for abuse

Child Sexual Exploitation is a form of CSA. It occurs where an individual or group takes advantage of an imbalance of power to coerce, manipulate or deceive a child or young person under the age of 18 into sexual activity (a) in exchange for something the victim needs or wants, and/or (b) the financial advantage or increased status of the perpetrator or facilitator. The victim may have been sexually exploited even if the activity appears consensual.

Whilst Online Child Sexual Abuse and Exploitation s used throughout this information resource to capture all types of offence. Online offending can take a number of different forms which include:

1. Online grooming: The act of developing a relationship with a child to enable their abuse and exploitation both online and offline. Online platforms, such as social media, messaging and live streaming, can be used to facilitate this offending.
2. Live streaming: live streaming services can be used by Child Sex Offenders to incite victims to commit or watch sexual acts via webcam. Child Sex Offenders also stream or watch live contact sexual abuse or indecent images of children with other offenders. In some instances Child Sex Offenders will pay facilitators to stream live contact abuse, with the offender directing what sexual acts are perpetrated against the victim.
3. Online coercion and blackmail: The coercion or blackmail of a child by technological means, using sexual images and/or videos depicting that child, for the purposes of sexual gain (e.g. to obtain new IIOC or bring about a sexual encounter), financial gain or other personal gain.

The conduct of course also includes the possession of indecent and prohibited images of children.

Today, we will largely speak about the second of those acts, live streaming.

The abuse team at Hugh James has dealt with one notable matter which involved the sexual abuse of children abroad.  This is the case concerning the sexual abuse committed by UK national Douglas Slade.

The Claimants, all anonymised due to the nature of the proceedings, are Filipino children in the Angeles City area who attended a local school. The school was next to Mr Slade’s then residence and Mr Slade preyed on the relative poverty of the Claimants and their families by luring the Claimants into his house with the promise of money, chocolates and drinks. Reprehensibly, Mr Slade took advantage of the vulnerabilities of the local children and sexually abused them when they were present in the house.

The abuse team at Hugh James issued proceedings against Mr Slade in the High Court of England and Wales for the abuse perpetrated by Mr Slade abroad.  The Claimants remained in the Philippines and the abuse was committed in the Philippines but we were able to convince the High Court the matter should be heard in London.   Overall, we obtained a verdict of £127,000 for the Claimants. This illustrates the viability of being able to bring a claim in England and Wales despite the conduct having occurred overseas.

An often overlooked consequence of the abuse occurring overseas is despite a prosecution which may occur in the UK for such conduct, the child is very often left with absolutely no recourse to compensation. It is highly doubtful countries like the Philippines have a criminal injuries compensation authority or similar scheme to compensate victims of crime. So the victim is left without access to essential services and perhaps still at the mercy of the facilitator who arranged the conduct to occur.

This doesn’t need to be the case. Where a user in the UK causes a child to be sexually abused abroad and watches through a live streaming service – that is a crime. It is also a tort – a wrong. In English law this is an assault or a battery which is an actionable wrong for which you sue the person who committed it for damages.

In Sea Shepherd UK v Fish & Fish Limited [2015] UKSC 10 the UK Supreme Court found that a defendant can be jointly liable for a tortious act of the principal if:

1. The defendant acts in a way which further the commission of the tort by the principal which is greater than de minimis; and
2. The defendant does so in pursuance of a common design to do or secure the doing of acts which constitute the tort.

In our view, taking Whittet as an example, it would be logical to argue he (as the defendant) should be jointly liable with the person who committed the abuse (or facilitated it) because Whittet commissioned the tort (clearly – this is what he was convicted of doing) and he did so in pursuance of a common design to commit the abuse of the child. 

Further, it arguable that Whittet could be vicariously liable for the criminal actions of the person who committed the abuse (or facilitated it) as his agent.  Whittet has paid that person to commit this crime, or facilitate it; he directed this person to commit the act and the person did so. It seems to us to be fair just and reasonable for Whittet to be vicariously liable in these circumstances.

If the defendant has assets sufficient to satisfy a judgment then the children who suffered the sexual abuse have a shot at obtaining some financial redress for that harm.

The fact the abuse occurred abroad but at the behest of a UK citizen in the UK does not protect that person from criminal liability and in our view, it should not protect them from civil liability either. The victims of such conduct need to be provided with the means to recover also, and this shouldn’t be different because the victims are not in the UK.

Sexual abuse in sport

Former youth football coach Bob Higgins has been jailed for 24 years and three months for abusing young players.

Higgins sexually touched and groped 24 victims, most of the trainees at Southampton FC and Peterborough United.

He was found guilty at a retrial of 45 counts of indecent assault between 1971 and 1996. He was convicted of another count last year.

Judge Peter Crabtree called Higgins a "predatory, cunning" serial sex abuser who "carefully groomed" the teenagers.

Higgins' victims told Winchester Crown Court of suicidal thoughts and relationship problems later in life.

An emotional statement, read by Dean Radford on behalf of the victims on the steps of the court, said Higgins' "arrogance was his downfall".

"You can call us brave, you can call us courageous - we were not - we were the unlucky ones for falling into the entrapment of Higgins' manipulative, deceitful and sexual behaviour," it said.

During Higgins' trial, prosecutors told the court he was "idolised" by trainees, who viewed him as a mentor and father figure.

Victims said they were abused during post-exercise soapy massages, in Higgins' car while he played love songs on the stereo and at his home where he cuddled with boys on his sofa.

Judge Crabtree said Higgins had shown "not one jot of remorse".

"They believed you held the key to their futures," he told the defendant.

"You normalised cuddling and stroking, which paved the way for more intimate abuse.

"For many, the impact extended to their performance on the field or to turning their backs on a football career. Some of them suffered severe psychological harm."

In the USA there have been several very high profile cases.

Former USA Gymnastics doctor Larry Nassar, the former doctor whose serial sexual abuse of girls and young women has shaken the gymnastics world was sentenced in February to a prison term of 40 to 125 years behind bars for molesting young athletes at an elite Michigan training centre.

Nassar pleaded guilty to penetrating girls with ungloved hands when they sought treatment for injuries at Twisters, a gymnastics club that was run by a 2012 US Olympic coach. Nassar has already been sentenced to 40 to 175 years in prison in another county and to a 60-year federal term for possession of child abuse images. He worked for Michigan State University and USA Gymnastics, which trains Olympians.

He has been accused of molesting more than 100 female athletes during the three decades he worked with USA Gymnastics.

Olympic gold medallists McKayla Maroney, Aly Raisman and Gabby Douglas are among the members of the USA Gymnastics team who have said they were sexually assaulted by Nassar.

Nassar's case was part of a wide-ranging scandal which forced the resignation of USA Gymnastics chief Steve Penny in March. Penny was accused by victims of failing to quickly notify authorities about abuse allegations.

USA Swimming was engulfed in scandal in 2010 when a television news investigation revealed myriad cases of sexual misconduct of various forms by coaches.

Cases uncovered included Andy King, a coach who was sentenced to 40 years in prison after authorities discovered a pattern of sexual abuse that stretched over three decades at clubs up and down the West Coast and involved more than a dozen teenaged female victims - one of whom said she had an abortion after he got her pregnant when she was 14.

Another case involved a coach who installed a secret camera to film young women swimmers showering.

While more than 100 coaches were eventually banned for life from working for USA Swimming-affiliated clubs, the federation was blasted for an inadequate response to complaints that in some cases allowed coaches to evade their accusers and authorities, moving to new cities and gaining coaching jobs at new clubs where they continued predatory behaviour.

King, who was sentenced in 2010, had passed a USA Swimming background screening in 2008es the large numbers of victim s and potential victims.

Returning to the UK and the Higgins case it is reported that 741 victims have come forward to detail allegations against some 276 figures according to Operation Hydrant.

Sport provides an opportunity for sex offenders to isolate and groom their victims. It is no different from any other situation, for example, education, where the young person is effectively entrusted to another for their care and well-being. Education has simply made rapid progress in safeguarding and child protection, and it seems that the world of sport has to act fast to ensure that confidence in its institutions is not lost. What the recent sports cases reveal is that the offenders are quite brazen, and often their gossip about their behaviour which should have meant the red lights were flashing but if they were they were ignored.

The cost of child abuse in sport is immense both in human and financial terms. There is reputational damage as well as the damage suffered by the victims which sadly is often considerable and lifelong. The clubs will too often be vicariously liable for the actions of the offenders viz the abusers and will be required to pay compensation to the victims. Even if they are insured the cost still has to be met.

Oxfam and child exploitation

Oxfam has been in the news for all the wrong reasons. It’s an internationally recognised charity famous for humanitarian work often in some of the most troubled and dangerous parts of the world.

Oxfam has been severely criticised by the Charity Commission for the way it dealt with claims of serious sexual misconduct by its staff in Haiti.

In 2018 Oxfam was accused of covering up claims staff sexually exploited victims of the 2010 Haiti earthquake.

Claims first emerged in The Times last year that Oxfam employees, including former country director Roland van Hauwermeiren, used young prostitutes while based in Haiti after the earthquake.

An internal Oxfam investigation in 2011 led to four people being sacked and three others resigning, including Mr Van Hauwermeiren. But a report published by Oxfam after the investigation failed to mention sexual exploitation.

The charity commission said the incidents in Haiti identified in 2011 were not "one-offs", with evidence of behavioural issues as early as June 2010.

The commission said there was a "culture of poor behaviour" at the charity, and issued it with an official warning over its "mismanagement".

Oxfam accepted the findings, saying what happened in Haiti was "shameful".

There were also issues at some of the charity's UK shops - the report highlighted 16 serious incidents involving volunteers under the age of 18.

"What went wrong in Haiti did not happen in isolation," Charity Commission chief executive Helen Stephenson said.

"Over a period of years, Oxfam's internal culture tolerated poor behaviour, and at times lost sight of the values it stands for."

The Charity Commission said Oxfam should have tried harder to substantiate the claims at the time, despite the lack of evidence.

In our experience of representing victims of sexual exploitation in developing countries there simply is not the structure or mechanisms in place to enable them to report wrong-doing or simply to get advice. If you are in a refugee camp you are intent on survival and are unlikely to be thinking about legal issues. Those who find themselves on the margins of survival are particularly vulnerable to exploitation. There are sadly too many cases of food and water being bartered in return for sex.

We have also found that unfortunately in many developing countries there is a perception that those from the “west” and particularly men are “powerful” and should be obeyed. It has been said that this somehow legitimised illegal behaviour.

Geography and circumstances make investigation and accountability extraordinary difficult. When there are attempts made to investigate it is very challenging to trace witnesses and victims for example in refugee camps. Where do you start? In investigating a Ugandan case we were fortunate to have the assistance of a charity worker who knew where the witnesses were likely to be, but even so, we could only go so far because of safety and security implications.

The United Nations needs to have a greater role in ensuring there is a minimum standard of investigation and accountability which hopefully would be legally binding on the international community. Offenders and those responsible for them should be held to account in any country. Nationality and legal jurisdiction should be irrelevant so that a victim of abuse, say in Haiti, should be able to ask the authorities in any country to investigate and, if appropriate, prosecute. Likewise he or she should be able to hold them to account in any country.

Oxfam's chair of trustees, Caroline Thomson, said the charity accepted the findings, describing them as "uncomfortable".

"What happened in Haiti was shameful and we are deeply sorry," she said.

"It was a terrible abuse of power and an affront to the values that Oxfam holds dear."

Oxfam has also not been able to bid for government funding pending the outcome of the 18-month Charity Commission investigation.

The Department for International Development said decisions over its funding relationship with the charity would be made "in due course".

International Development Secretary and Conservative leadership contender Rory Stewart said the revelations about Oxfam had "shone a light on fundamental problems", adding that there were "no easy answers or room for complacency".

Maybe there are “no easy answers” but that should not prevent the UK government taking a lead on the international stage with an objective to ensuring that the vulnerable have enforceable legal rights no matter who they are or where they live.

When are social services liable for the abuse of children?

That is the question that the Supreme Court has attempted to answer in the case of Poole Borough Council v GN [2019] UKSC 25

The two children who were the claimants in this case sought damages for the harm they suffered whilst living in a house provided by the Poole Borough Council (“the Council”). They were subjected to persistent anti-social behaviour on the part of a neighbouring family. It was several years before the Council rehoused the children and their parents, but in the meantime, they had suffered physical and psychiatric harm. They sought compensation from the Council.

The Council defended the case even though it knew that the children were in need, had social workers allocated to them, and knew of the harassment and abuse.

The Claimants’ case was that the Council had negligently failed to exercise its powers under the Children Act 1989 so as to protect them from harm.

The Supreme Court has ruled that local authorities do not owe a duty of care at common law merely because they have statutory duties to protect a child from harm. Nevertheless, they can come under a common law duty to protect a child where for example the authority has created the source of danger or assumed a responsibility to protect him or her from harm.

In this particular case, the Supreme Court held that the Council was not liable because it had not taken the children into its care, and assumed responsibility for their care, or had accepted any responsibility for their safety.

A local authority can be vicariously liable for its social workers but there will only be liability if there has been an assumption of responsibility to perform a function with reasonable care. Such a responsibility may exist where a particular task is to be undertaken which will have to be performed with reasonable care.

What does this mean in practice?

Merely because a child at risk of harm comes across social service’s radar does not make the local authority liable if he/she is later harmed.

If however social services having recognized that the child is at risk of harm, and for example places him/her on the at risk register, but the through a failure to adequately monitor his welfare, and suffers abuse as a result then the local authority could then be liable in negligence.

There is the argument that, perhaps, the judgment is too conservative given that Parliament has decreed in the Children’s Act 1989, and other legislation, what social services must do when it comes to the welfare of children? Surely it follows that if social services do not fulfil these statutory obligations they should be liable for the harm suffered regardless of whether what actions it took, if any, were reasonable or not?

Child abuse cases are invariably tragic, and the legal issues can be complex. This case demonstrates how fact specific they are when the courts are examining the issues of whether there was a duty of care, and if so whether it was breached.

These cases have pushed the legal boundaries of negligence and it is likely in years to come the Supreme Court will be asked to examine and rule on the question when are social services liable for the abuse of children?

IICSA Hearing into child protection in religious organisations and settings

The Independent Inquiry into Child Sexual Abuse (the “Inquiry”) has announced a hearing into child protection in religious organisations and settings.

So, what does this mean?  The Inquiry has to date examined large religious institutions in the UK such as the Roman Catholic Church and the Anglican Church, along with other religious instructions and state based organisations.

However, this has left quite a significant gap in the field as many religious denominations and other institutional religions have escaped scrutiny.

This is a welcome announcement given the figures released by the Truth Project indicate more than one in ten survivors who shared their account were abused in a religious institution, which equates to 11% overall, and of that group, almost a quarter, being 24%, were abused in institutions to be examined in the new hearing.

The first relevant question which arises is which religious institutions are subject to this hearing?

The Inquiry considers a religious setting or organisation to include:

1. Places where people gather to engage in collective rituals designed to bear witness or share collectively in  their religious faith (e.g. mosques, temples, festivals);
2. Places of tuition regarding one’s faith tradition or cultural matters related to religious observance or faith, such as preparation for rites of passage (e.g. Jewish yeshivas and chedarim, Muslim madrassahs, Christian Sunday schools); and
3. Places where children and young people gather in connection with their religious beliefs (e.g. youth groups, camps)

The Inquiry will focus upon those religious organisations with a significant presence within England and Wales, including but not limited to:

1. “Non-conformist” Christian denominations;
2. Eastern and Coptic Orthodox communities;
3. Pentecostal churches and independent charismatic and house churches;
4. The Church of Latter Day Saints;
5. The Jehovah’s witnesses;
6. Islam;
7. Judaism;
8. Hinduism;
9. Jainism;
10. Sikhism;
11. Buddhism

Given the scope of such a hearing, it is difficult to see how exactly the Inquiry will deal with such a prevalent issue across such a broad range of religions.

However, the way in which it will be dealt with can be gleaned from the scope, which is effectively the four corners of the hearing.   The scope indicates that the Inquiry will examine these institutions on a “thematic” basis focussing on management of child protection within religious organisations and settings including the training and understanding of child sexual abuse, policies and procedures, vetting and barring, responses to allegations of child sexual abuse and internal processes for auditing, inspection and oversight of child protection practices and procedures.

What this means is the Inquiry, unlike in previous hearings, might not have any specific case studies in respect of abuse in the past and the religious institution's response.  Whilst this is understandable given how unwieldy and time consuming it would be if each institution were to be examined both specifically by reference to case studies and broadly in respect of their practices and procedures, it must not be lost sight of, however, how important those case studies are.

The reality is that many of these religious institutions will publicly abhor child abuse and denounce it as a sin.  It would be outrageous not to. We do not suggest for one minute that individuals, leaders or even the institution is not genuine when publishing such material. The problem is in the implementation.

What we do know is that no matter how loud the protest against child abuse by religious institutions, the reality of dealing with sex offenders, allegations of child abuse and internal practices are often not reflective of those public positions.

This reflects a wider problem in these institutions, which is a reluctance and often a hatred of being governed by secular laws and society.  So the Inquiry has a real chance here to dig deep into these institutions and establish which ones have outdated practices which must change, whether by external legislation or from within, and which ones do not have proper safeguarding practices.

We believe the answer will be fairly predictable - mandatory reporting is required.   This will avoid ridiculous internal policies which exist to avoid reporting child sexual abuse to secular authorities and focus on dealing with it internally.

Whether the Inquiry should go further and adopt positions such as in Victoria, Australia and recommend failure to protect laws should also be considered by the Inquiry.

In Victoria, a criminal offence was introduced in 2015 which applies where there is a substantial risk that a child under the age of 16 under the care, supervision or authority of a relevant organisation will become a victim of a sexual offence committed by an adult associated with that organisation.

A person in a position of authority in the organisation will commit the offence if they know of the risk of abuse and have the power or responsibility to reduce or remove the risk, but negligently fail to do so. 

This offence encourages organisations to actively manage the risks of sexual offences being committed against children in their care to protect them from harm.

It is our view, that given the magnitude of the problem, this is a necessary step.  There is one sure-fire guard against child sexual abuse and that is to place in a person who is in a position of authority within a relevant institution criminal responsibility for negligently failing to take steps to protect a child from a known risk of abuse.

Abuse by people in authority: what can we learn from “Emmerdale”

Sexual abuse by people in authority often involves the use of power by the predatory adult.  A teacher, of course, has often enormous influence over a pupil, but this issue is not limited to the teacher/pupil relationship. Abuse can happen in other settings where people work with young people too. It is very easy for young people to fall under that influence which is why, as we shall see, there are very strict laws prohibiting any kind of sexual activity between those in a position of trust and a young person (under the age of 18). Victims of grooming are often manipulated and what they may think is a relationship is, in fact, a twisted one, and a damaging one, that can have profound consequences.

Avid fans of the soap “Emmerdale” will be all too familiar with the current storyline of sexual impropriety between a teacher and her pupil.

Teacher Maya Stepney has been involved in an improper relationship with schoolboy Jacob Gallagher. She has been arrested and, no doubt faces being prosecuted for offences under the Sexual Offences Act 2003.

The fictional case vividly exposes a number of issues.

The first issue is young people can be exploited by adults through a process where they are manipulated into a relationship that in turn leads to sexual abuse. This manipulation is known as grooming. On the soap, Maya has been grooming  Jacob for months and even made plans to flee the country with him. Maya tried to find a way out, taking Jacob with her, but she was reported to the police and finally arrested in front of him. Viewers were stunned when they previously saw Maya, who is Jacob’s teacher, have sex with him a few days after he turned 16.

The story has also exposed a lack of understanding of a sizeable proportion of the general public who apparently struggle to identify what constitutes sexual abuse. Research done for Barnardos by YouGov revealed that many adults have a severe lack of knowledge about sexual abuse. Barnardos has been working with Emmerdale’s producers on the current storyline, but despite witnessing Maya and Jacob sexting, the poll showed that 35% of people didn’t actually think an adult sending sexually explicit messages to a 16-year-old was illegal or abusive. When Jacob was still 15, scenes played out on screen of him kissing Maya in and out of school, however, 27% of people in the poll did not identify this as illegal or abusive.

There is also the uncommon perception that a teenage boy having sex is not harmful. Indeed there will be those who think that Jacob having sex with his teacher is a boy’s fantasy come true. The reality is that it is recognised this is likely to be harmful psychologically because of the manipulation and the abuse of power. The likelihood in the Jacob scenario is that he is being used for sexual gratification or to get some kind of power kick.  He is being used unwittingly and with that, the risk is that whilst he might be physically mature he will not be psychologically, and that is where the harm is possibly going to arise.

Turning back to the law although Jacob was over the age of consent when he and Maya had sex, it is a crime for an adult in a position of trust (such as a teacher or foster carer) to engage in sexual activity with a person under the age of 18, under the Sexual Offences Act 2003.

If Maya is successfully prosecuted, she will face imprisonment. The courts take breach of trust cases very seriously.

In addition, Maya may be liable to pay compensation to Jacob for the harm she has caused him. The compensation could be significant if the damage she has caused is lifelong which is possible in cases such as this. Moreover, her employer may also be civilly liable to pay compensation if she was able to sexually abuse him as a direct result of her employment.

Sexual abuse of a minor by a person in position authority should be taken seriously by each of us and by society as a whole. Proper reporting and prosecution will not happen if people are not aware of just how damaging this kind of abuse can be. More importantly, without awareness, we will not be able to make strides toward preventing it from happening in the first place.

Adult Survivors of Childhood Sexual Abuse APPG report

The May 2019 report by the All-Party Parliamentary Group for Adult Survivors of Childhood Sexual Abuse sets out some alarming facts regarding the impact of childhood sexual abuse, access to essential services, the demand for essential services and the gap in funding which allows many survivors to languish without proper treatment or support.

At the outset it is important to note the magnitude of this problem – 7% of people aged between 16 and 59 report they were sexually abused as a child.

This tells us many things, but most importantly, the impact of childhood sexual abuse is on a scale many would never imagine and it is not a vestige of a less civilised past, which many would consider the case. This is a 2019 report with recent data. The youngest persons surveyed are 16 years old and the oldest are 59.

You would be forgiven for thinking that recent awareness of this issue and great leaps being taken in safeguarding techniques, laws and procedures would reduce the incidence of childhood sexual abuse, but this data suggests otherwise.    

So this is something that can no longer be ignored, there is a human cost and an economic cost to society.  Taking this into account, the report asks a pivotal question – can adult survivors of childhood sexual abuse access justice and support?

In doing so 365 survivors of child hood sexual abuse were surveyed and the following alarming statistics were revealed:

• The average wait time for disclosure of sexual abuse is 26 years;
• 90% of respondents told the inquiry that the abuse has negatively impacted their intimate relationships;
• 89% of respondents told the inquiry their mental health was affected by the abuse;
• 81% of respondents told the inquiry their family life was adversely affected by the abuse;
• 72% of respondents told the inquiry their career was negatively affected; and
• 65% of respondents told the inquiry their education was negatively affected by the abuse.

Whilst these results are startling at first blush, it is not at all surprising.  One only needs to search the internet for similar studies conducted across the world to see the devastating and insidious impact of childhood sexual abuse. Sexual abuse is pervasive, it invades the lives of those affected and can sit dormant for many years. We must then ask why this is the case?

It was been the position of society for decades that such things are best left unsaid, it was a secret which many institutions and organisations didn’t want let out of hiding.  The Catholic Church is a perfect example, it can now be said with some degree of certainty that this problem of epic proportions was known about, and covered up, for decades. Survivors were conditioned to feel it was their fault, to feel guilty, to hide it deep inside. This served one purpose – the protection of the institution and the abuser. Now we know this is not specific to the Catholic Church, but a problem which has touched nearly all facets of religion and government.

The effect is what we see in clear terms in the report – survivors take decades to report. This is not at all surprising given what they were conditioned to feel.

Moreover, the individual survivor disclosures in the report evidence a culture which surrounds childhood sexual abuse – often the people around you just want you to get over it.  A monumental task and one which those who haven’t been affected are ill equipped to understand.  It is this mentality which contributes to the 90% of survivors who report their intimate relationships being negatively impacted and the 81% of survivors whose family life was negatively impacted by the abuse.

Again, this is hardly surprising. The report details many survivors are unable to access good quality information about the impact of childhood sexual abuse – if the survivor is unable to access this information then how is a loved one or friend able to properly understand the devastating impact? This misunderstanding of how childhood sexual abuse pervades many aspects of a survivor’s life leads to a clear impact on relationships, a downward spiral, leading to further depression and less likely prospects of successful treatment.

This is the human cost.  It is undeniable.  But how is this treated and what can be done?  Whilst 47% of survivors found that the most important support to recovery is specialist voluntary sector counselling, the report demonstrates glaring holes in access to support and services due to a distinct lack of adequate government funding.

For example, SurvivorsUK which provides support and services for survivors has reported that in each of the past three years demand for services has increased by 30% year on year – a 90% increase – and their staff has grown by 300% but is still unable to meet demand.

So what does the report recommend to address this issue?  The key recommendations are as follows:

1. The Home Office should commission and publish research on the economic and social costs of child sexual abuse.
2. The upcoming Spending Review for 2020-2023 should create a discrete, cross-departmental strategic fund to transform Government response to child sexual abuse. This should fund core services to meet demand and recognise the value of the specialist voluntary sector.
3. NHS England should collect data on Clinical Commissioning Group (CCG) expenditure on long-term therapeutic care for survivors, and consider ring-fenced funding as a way to ensure CCGs commission specialist voluntary sector services to meet demand.
4. Government departments should issue guidance to frontline professionals on how to respond in a trauma-informed way, developed in collaboration with specialist sexual violence and abuse voluntary sector umbrella agencies.
5. The Government should fund a nationwide public health campaign to raise awareness of the issues around childhood sexual abuse, highlight the potential impact on survivors, tackle social myths and stereotypes about sexual abuse and direct survivors and professionals to sources of support and information.

Whilst this is all welcome data and impactful advocacy – the question remains, what will the government do about this?  If there is a benefit to society, this may garner more support for change and funding. Whilst an unpalatable thought, it is likely to be the best shot we have to ensure survivors of childhood sexual abuse can access appropriate service and get on the road to recovery.