Unidentified Perpetrators of Abuse in the context of Institutional Child Abuse Claims
Institutional abuse is when an organisation is responsible for sexual, physical, or emotional abuse of a person or child. Institutional abuse claims are usually based upon a claim of negligence by an organisation such as a school, youth detention centre, government department, or a religious institution.
Particularly in a school or youth detention setting, it is not uncommon for a survivor not to know (or be able to recall) the identity of the perpetrator(s). More common in a youth detention setting, perpetrators may often be referred to by a nickname only, which can make identification down the track difficult.
In Australia, the courts are yet to be asked the question whether an organisation can be held liable for negligence for the abuse perpetrated by an unidentified employee falling within a defined class of employees under its control. This has led to uncertainty for survivors of abuse as to what barriers they will face in circumstances when they are unable to identify their perpetrator(s).
In matters where a perpetrator has been identified but is deceased or otherwise mentally incompetent to provide a response to a Defendant organisation in relation to an allegation made against them, the courts have largely held that this will be considered prejudicial to a Defendant organisation and the survivor’s claim will be made subject to a permanent stay application. This means the survivor is prohibited from continuing legal proceedings against the institution as a result of the prejudice.
Of course each case is considered on its individual facts and merits. In circumstances where a survivor is not presently able to identify the perpetrator, this does not automatically mean that a survivor cannot pursue a claim and achieve an outcome and we would recommend survivors seek legal advice regarding the viability of pursuing a damages claim to ensure they are fully informed as to their legal rights and options. In our experience, it is often possible through investigations to research to identify perpetrators where we have been provided with a nickname, physical description or other information that assists with identification.
There are many investigations that can be undertaken to assist in identifying a perpetrator and the team at Southside Legal have extensive experience in investigating and identifying perpetrators whose identity were otherwise unknown to a survivor.
In circumstances where a survivor is able to identify their perpetrator, there is a common misconception that the perpetrator must be made a party to the claim in additional to the organisation. This is not the case. Every case must be considered on its own facts.
Once a perpetrator has been identified, investigations will be undertaken to determine whether a perpetrator has the assets or means available to pay damages. Upon conclusion of these investigations, a decision will be made as to whether the perpetrator is made a party to the claim.
At no stage will you need to speak with or interact with the perpetrator directly, your team at Southside Legal will handle all communications and dealings with all parties to the claim on your behalf.
If you wish to make a confidential enquiry regarding childhood abuse please get in touch with one of our friendly team members today. You can find out more about out lawyers via their bios on this website. If you have a preference to speak with a particular lawyer this can be arranged for your initial consultation.
