Abuse. An act of violence that has the potential to ruin lives.
There are many who would argue that, in this area of law, the legal system needs a refresh. The statute of limitations continues to be a problem for many victims wishing to seek justice for the acts of violence perpetrated against them.
For years, there have been victims of sexual abuse that have been unable to seek justice through compensation due to being Statute Barred. The time for claiming civil damages under the Limitation of Actions Act 1958 (Vic), was 6 years from the date the victim realised that they had been abused or 12 years from the date of the abuse, whichever occurred first. The problem that arose with this was that victims of this crime can spend years burying the memories of their abuse. They may be in denial. They may have been threatened not to talk about the abuse. They may be worried that the blame will be put on them. In fact, victims often spend years avoiding discussing their abuse. Everyone handles being a victim in different ways however, when they decide to seek compensation for the pain and suffering they have incurred, they are often out of time.
During the COVID-19 pandemic, there has been a spike in historical abuse cases. It is possible that isolation has made it difficult for victims to continue suppressing their memories of abuse. The thought of being alone can cause victims to have flashbacks of traumatic events experienced in their lives.
From a legal perspective, the difficulty with resurfacing claims that have been dismissed due to limitations issues is obtaining evidence to support the allegations. Missing or discarded documents, lack of witnesses and institutions that no longer exist, are all issues that can arise with offences that occurred decades ago. The reason for placing time frames on causes of action are to avoid the issues arising out of insufficient evidence. With many sexual abuse claims relying on ‘he said, she said’, evidence is critical. For years, the statute of limitations was pursued aggressively as a defense, often used to waiver low-ball offers of settlement.
Thankfully, the Limitation of Actions Amendment (Child Abuse) Act 2015 (Vic) removed the limitation periods for causes of action relating to death or personal injury resulting from child abuse. The jurisdictional limitation period was removed in respect of Sexual Abuse in ACT, NSW, NT, QLD, SA, TAS, VIC and WA. New South Wales also removed limitation periods for connected abuse, while psychological abuse was incorporated into Northern Territory, Tasmania, and Victoria. The states have incorporated the abolition of limitation periods for abuse differently, however, all states have progressed by making a change.
By removing the limitation period for historical abuse cases, a door has been opened to those victims that have now decided to speak up.
The amendment is a light at the end of the tunnel for those that wish to seek justice. Victims no longer have to feel pressured to pursue a case quickly out of fear that they will ‘run out of time’, rather they are able to take as much time as they require to heal and seek compensation when they are ready.
Technology and evidence are evolving, the definitions of abuse are evolving, but more importantly, the laws are evolving to recognise that justice should not have a time limit.