Sexual Abuse Claims Blog

Invisible Injuries

One of the greatest challenges in representing survivors of childhood abuse is the fact that, for the most part, the injuries are invisible. That is to say, they are primarily psychological. You cannot point to an x-ray, CT scan or MRI to show the nature and extent of a psychological injury. So in that sense, sexual abuse claims cause "invisible" injuries.

Sad Life Defence

Frequently survivors of childhood sexual abuse will have experienced other traumatic events (either before or after the abuse that is the subject of litigation). In these circumstances defendants usually argue that the pre or post traumatic incidents are the true cause of the plaintiff’s injuries. Therefore because the plaintiff has lead such a sad life, his or her compensation should be reduced (or eliminated) because the plaintiff’s harms and losses were actually due either in whole or in part to other sad and traumatic events.

Indivisible Injuries

My colleague Erik Magraken summarized a recent decision of the BC Supreme Court Estable v New, that deals with how to determine appropriate compensation when injuries are "indivisible".

Although the case Erik references is a motor vehicle claim the legal principles involved in calculating losses are the same as those that apply in sexual abuse cases.

Madam Justice Gropper explains that divisible injuries are those which can be clearly determined and separated. For example, injuries to different parts of the body which were not caused by the defendant’s actions.

In sexual abuse compensation claims where the injuries are almost entirely psychological it is rarely the case that one can clearly establish cause and effect between traumatic events that predate and postdate the abusive acts.

As Justice Gropper explains:

Indivisible injuries are those that cannot be separated, such as aggravation or exacerbation of an earlier injury, and injury to the same area of the body, or global symptoms that are impossible to separate… If the injuries are indivisible, the Court must apply the “but for” test in respect of the defendant’s act. Even though there may be several tortious or non-tortious causes of injury, so long as the defendant’s act is a cause, the defendant is fully liable for that damage.

What Does it Mean?

The decision clearly shows that defendants who spend a great deal of time in pursuing the “sad life” defence are, from a damages calculations standpoint, wasting their time.

However, I think it is unlikely defence counsel will stop pursuing these types of defences if only because they “muddy the water” and make cases more confusing and complex.

Human nature being what it is when something is confusing or complex we tend to revert to the status quo. Which, in the case of a sexual abuse survivors, means not awarding fair and adequate compensation.

Football fans and Penn State alumni around the world have been shocked by the criminal charges against Jerry Sandusky a former defensive coach for Penn State’s perennial powerhouse football team.

Just Horsing Around?

The criminal charges allege that Sandusky sexually abused eight young boys that he met through a charity that he founded, The Second Mile. Sandusky has denied all the charges, admitting only that he only "horsed around" in the shower with one of the boys that is the subject of some of the criminal charges.

Superiors Failed to Report

It is troubling that Penn State athletic director Tim Curley and Penn State Vice President Gary Schultz have been charged with perjury and failure to report sexual abuse to authorities.

Particularly disgusting are the allegations that Second Mile "pimped out" young boys to wealthy Penn Sate donors.

The turmoil has claimed the job of legendary football coach Joe Paterno.

Keeping in mind that at the moment the criminal charges are accusations only and no one has been convicted, the charges raise interesting civil-legal issues.

The charges against Curley and Schultz allege that they were aware of allegations that Sandusky was sexually abusing children on Penn State property but failed to report the disturbing allegations to campus or state police or to state child protection officials.

It appears that the Penn State employees have borrowed the playbook from the Catholic Church. Media reports from around the world have uncovered repeated incidents where officials within the Catholic Church have ignored or covered up allegations of sexual abuse against Catholic priests. See for example: The Catholic Church and Sexual Abuse

Legal Issues

The Penn State allegations raise some interesting legal issues. In cases around North America the Catholic Church has been found liable for sexual abuse by catholic priests. Churches around North America have been ordered to pay compensation to priest sexual abuse victims.

The question this brings to mind is whether Sandusky’s sexual abuse victims (if the allegations are proven to be true) could file civil suits for compensation against Penn State.

Vicarious Liability for Sexual Abuse

In Canada employers were traditionally responsible for acts of employees committed in the course of their employment. For many years criminal acts (including sexual abuse) were considered by the courts to be outside the scope of an employee’s duties. Therefore, employers were rarely found to be vicariously liable for sexual abuse committed by employees.

This changed in 1999 when the Supreme Court rendered its landmark decisions in Bazley v. Curry and Jacobi v. Griffiths.

In those decisions the Supreme Court of Canada set out the criteria for when an employer can be held vicariously liable for sexual abuse committed by an employee.

The Supreme Court said that consideration must be given to:

(1) Policy reasons to determine if vicarious liability should or should not apply; and

(2) Whether the wrongful act is sufficiently related to the employment to justify imposing vicarious liability.

The court went on to explain that vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of risk and the wrong that flows from the risk. It is not enough that the wrongful act or abuse took place on company property.

Vicarious liability was extended to the Catholic Church by the Supreme Court of Canada in a case known as Doe v. Bennett in 2003.

The Supreme Court of Canada said:

The relationship between the bishop and the priest in the Diocese is not only spiritual but temporal. First, the Bishop provided Bennett with the opportunity to abuse his power.

Second, Bennett’s wrongful acts were strongly related to the psychological intimacy inherent in his role as priest.

Third, the Bishop conferred an enormous degree of power on Bennett relative to his victims.

Should Penn State be held Responsible like the Catholic Church?

Sandusky's alleged child abuse was perpetrated through a charity he founded. His "charity" work were not part of his job duties at Penn State.

Although some of the abuse allegedly occurred on the university property, the SCC's reasoning in Bazley would suggest that isn't sufficient to create liability.

On the other hand, Sandusky's standing in the community and as hea of his charity were due to his reputatiion as one of Penn States coaches.

If it turns out to be true that Penn State was benefiting financially from acts of child abuse, then I think the legal responsibility becomes clearer.

Given the reasoning in the Supreme Court of Canada’s decision in Doe v. Bennett I think a strong argument could be made that if the abuse happened in Canada, Penn State could be held vicariously liable for Sandusky's (alleged) actions.

More Information

Duty to Report Child Abuse in Canada

Children and Family Services Act (Nova Scotia)

What do you think?

Former Saint John's Archbishop Alphonse Penney was aware of sexual abuse allegations against former Roman Catholic Priest James Hickey as early as 1980. This according to evidence filed by the diocese’s insurers who are seeking to deny responsibility for paying civil suits filed against the diocese by Hickey’s sexual abuse victims.

Testified Under Oath

In 1992 Archbishop Penney testified during the Winter Commission investigation that he was not aware of any abuse allegations against Hickey until 1986.

But according to affidavit evidence filed by Guardian Insurance, Penney was advised about Hickey's sexual misconduct by a Catholic seminarian, Randy Joseph Barnes.

If the insurance company’s allegations are proven correct (at this point they are only allegations) then it would appear that Bishop Penney committed perjury when he testified during the Winter Commission Inquiry.

Will Police Investigate Possible Charges Against Penney?

If so, we hope police in Newfoundland and Labrador will take appropriate steps to investigate and, if appropriate, lay criminal charges against Penney.

Hold Those Resposible to Account

The only way to stop the rampant sexual abuse within the Catholic Church is to hold those responsible for allowing the abuse to continue to account.

Recently criminal charges were laid against Bishop Finn of Kansas city in the United States. The charges allege Bishop Finn was aware of allegations of sexual abuse by priests within his diocese and failed to report them to the authorities as required by law.

Law Requires Reporting of Abuse

Every province in Canada has legislation that requires persons in authority (including Bishops) to report suspected cases of child sexual abuse to the appropriate authorities.

However, I am not aware of any cases in Canada where a Bishop (or for that matter any religious authority) has been charged for failing to report allegations of child sexual abuse. This despite the fact that there have been dozens of priests across Canada accused or convicted of childhood sexual abuse.

Perhaps the police need to be urged to be more aggressive in their investigation of potential failures to meet the statutory obligations.

What do you think? Please let me know in the comments

Boy Scouts Canada kept a secret list of scout leaders and volunteers who had been convicted of, or accused of sexual abuse according to an investigative report by CBC’s Fifth Estate.

Secret List of Abusers

According to media reports the Boy Scouts of America have long maintained a list of scout leaders and volunteers who had been accused of inappropriate sexual behavior with children.

The investigation in Canada indicates that Boy Scouts Canada maintain a similar list.

The spokesperson for Boy Scouts Canada claims Scouts Canada has never maintained a list of scout leaders and volunteers who have been accused of abuse.

Safety Requires a List

It is not surprising to me that an institution like the Boy Scouts, where volunteers are in a position of authority over young vulnerable children, would maintain a list of volunteers who had been found to have acted inappropriately.

In fact, I think it would be prudent for any organization involved with children to maintain such a list. I would go so far as to say that it would be negligent for Scouts Canada not to maintain this kind of a list. What raises concerns is the fact that these lists (if they exist at all) were secret.

Secrecy Protects the Abusers

Child abuse is a crime of secrecy. Pedophiles use their influence and authority to prey upon vulnerable children. They threaten, intimidate or cajole their victims into maintaining their silence which enables pedophiles to continue their predations.

Reporting Abuse is the Law

The fact that children who are being abused may not be in a position to report what is happening to them is what lead the governments of every province to enacted legislation requiring persons in authority to report suspected cases of child abuse.

Unfortunately, there are some institutions that believe that the reputation of the institution is more important than protecting children. Therefore, persons in authority within the institution fail to notify authorities when an adult within their ranks is found to have committed inappropriate acts with children.

Churchs Fail to Report

We have seen this time and time again with religious institutions, particularly the Catholic Church.

The Catholic Church is perhaps unique in that the Code of Canon Law requires the Bishop of each diocese to maintain a “secret archive” of any accusations of inappropriate conduct made against priests. Canon 1719

Litigation against Catholic Churches throughout North America has uncovered many examples of instances where the bishops or officials from the Vatican have sought to interfere the obligation to report to the authorities.

See for example:

The Catholic Church and Sexual Abuse

Different Players - Same Script

Unfortunately, it appears from the Fifth Estate Investigation that the Boy Scouts of America and Boy Scouts Canada felt that it was more important to protect the reputation of the Scout movement than it was to protect the children who were being preyed upon by pedophile scout leaders.

Silence Protects Abusers

Sexual abuse is a crime of secrecy. Pedophiles can only commit their offences when they are protected by the shadows of secrecy. It is only when pedophiles are exposed by the glaring light of public disclosure that they can be held accountable.

That is why I say to abuse survivors" If you have been sexually abused tell someone!"

Be it a family member, a friend, a health professional or a counselor. The best way to get help and to prevent the abuse from happening to others is to disclose what happened.

As a public service we have prepared a directory of professionals who provide counseling services to abuse survivors in the Atlantic Provinces. If you would like to receive a copy of the directory, at no charge, please feel free to contact me through this blog.

Charles Picot, a former Catholic priest employed by the Diocese of Bathurst in New Brunswick was acquitted of indecent assault against a former altar boy in March 2010. Picot had previously been convicted of other sexual assault charges involving other young boys.

The alleged victim appealed, and in a two to one decision Justice Bell ruled for the New Brunswick Court of Appeal that the trial judge didn’t properly consider all of the evidence. The Court of Appeal ordered a retrial.

It has come to our attention that Picot has now requested leave (permission) to appeal to the Supreme Court of Canada.

In the meantime his alleged victim still waits for justice.

One of my clients sent me a link to a page with a number of videos from last weeks Truth and Reconcilation Commission hearings in Halifax.

Of particular interest is a video montage titled Nora Bernard - Eastern Thunder.

There was a wonderful event Wednesday evening where Nora was honoured for her work on behalf of Residential School survivors. I was delighted to be invited by Nora's family to say a few words about Nora and her contribution to the National Indian Residential Schools class action.

Please take a look and join me in honouring a wonderful, courageous woman, Nora Bernard.