A Royal Commission into child abuse – how do we measure its effectiveness or ‘success’?
Lecturer, Faculty of Law at University of Technology, Sydney
November 15, 2012
Since Monday’s announcement of the creation of a Royal Commission into institutional child abuse there has been some discussion about what this might achieve.
In short how will a Royal Commission be different from other forms of public inquiry? What will be the outcome for survivors, alleged perpetrators and the institutions which supported or allowed such abuse to take place?
Already commentators have raised concerns about whether such a process will be too traumatic for survivors, whether it will be unduly focused on the Catholic Church, whether the work of the Commission will result in convictions, and so on.
look beyond individual cases to the systemic context in which these harms took place
In this context we need to understand the purpose of a Royal Commission into this complex and sensitive area as well as how we might measure its long-term success.
While some of the answers to these questions will rest on the terms of reference for this inquiry, they also directly relate to the needs of adult survivors of institutional child abuse who have been calling for a royal commission for over five years.
A useful way to articulate the parameters of success is provided in the work of the then Law Commission of Canada in its 2000 report, Restoring Dignity: Responding to Child Abuse in Canadian Institutions.
In that report the Law Commission canvassed a range of ways in which governments may respond to institutional child abuse (ranging from traditional civil and criminal actions, public inquiries, and ex gratia payments through to redress schemes) and assessed them across key criteria reflecting the needs of survivors.
While individual survivors have different experiences and therefore different needs – the Law Commission identified commonality across the following:
• Respect, engagement and informed choice
• Acknowledgment, apology and reconciliation
• Compensation, counselling and education
• Needs of families, communities and peoples
• Prevention and public education.
Applying these criteria as a way to assess the potential success of the Royal Commission, we can see that from the viewpoint of survivors the question is not so much whether convictions result (although for some this will be important) but rather the process, the way in which the Commission will handle its brief, the provision of a space and support for survivors to tell their stories and to be believed, and a commitment to non-repetition.
Some convictions may indeed result from the work of the Commission, but the scant history of convictions for these harms to date does not bode well. Already the criminal legal system has found it difficult to respond effectively to these harms, running into hurdles at all stages: from reporting, investigating, charging and conviction, right through to sentencing.
Despite their lasting impact, such harms often stem from conduct that took place many years (indeed, decades) ago. In “historical” child abuse cases such as these, there are often no living witnesses, or the witnesses who are still able to give evidence may find that their recollection is poor due to the passage of time, and other evidence may have been destroyed.
In addition, many survivors of institutional child abuse have gone on to lead difficult lives as a result of the abuse; for example, some have become dependent on drugs and alcohol, had their own interactions with the criminal justice system as offenders, or found it difficult to hold down secure employment and accommodation. These factors often mean that some survivors do not appear as “good” witnesses in terms of how the legal system assesses credibility. Taken in combination, these factors may well mean that in many cases the prosecution’s burden of proving its case “beyond a reasonable doubt” will be insurmountable.
This difficulty can be clearly illustrated in the context of the revelations of extensive sexual and physical abuse arising from the Grandview School for Girls in Ontario, Canada.
In the early 1990s two survivors of the Grandview School for Girls revealed publicly the abuse that they suffered whilst institutionalised at the school. This led many other women to come forward and make reports to the police. What followed was one of Ontario’s longest police investigations necessitating the creation of a specific police unit to undertake the investigations. Despite this focused investigation, and the laying of multiple charges against a small number of alleged offenders, only two convictions resulted.
This should be seen in the context of the fact that the Grandview Survivors Support Group at the time numbered over 200, and that by 1998 over 320 women had participated in the Grandview Agreement, a redress scheme negotiated with the Ontario Provincial Government in 1994.
The effectiveness of the Royal Commission should therefore be seen in terms of its support for survivors to present their evidence (here a consideration might be given to the structure adopted by the Commission to Inquire into Child Abuse* in Ireland which had both confidential and investigative arms), the way in which it will deal with the extent of publicity such a Commission is likely to attract, and the way in which the Commission will see its brief in terms of transparency, creating a historical record of events, ensuring accountability and articulating a way forward.
The great strength of a Royal Commission is to look beyond individual cases to the systemic context in which these harms took place.