Stop treating abuse victims with contempt
Everyone who suffered abuse in a defective school system should now be paid the compensation they are entitled to under human rights law, writes Conor O’Mahony.
It is well known that navigating the justice system is a traumatic experience for people who experience sexual abuse or assault. This has been documented at length in academic research, and extensively discussed in the media in the past year or two. It remains the case in spite of the fact that in criminal cases, the power of the State is amassed on the side of the victim.
So imagine how much more traumatic the experience must be when the power of the State is devoted to denying justice rather than pursuing it? This is what has been experienced by people who were sexually abused in Irish primary schools in the 1960s and 1970s.
Louise O’Keeffe knows this all too well. She fought a 15-year legal battle to establish that the State’s failure to establish an adequate child protection framework in schools made it partly responsible for abuse suffered by children. During this time, the State repeatedly sought to pursue her for costs; she could have lost her family home.
When she lost in the Supreme Court, the State wrote to other litigants threatening to pursue them for costs unless they dropped their cases immediately.
When she eventually won her case in the European Court of Human Rights in 2014, that should have been the end of the matter, not just for Ms O’Keeffe, but for others abused in the same defective system.
Instead, the State once again marshalled its considerable resources to seek to prevent others from obtaining compensation. It established an ex-gratia compensation scheme, but applicants could only qualify for compensation if they could prove that their abuse occurred in the aftermath of a prior complaint made against their abuser.
This condition was effectively impossible to prove; and moreover, it was incompatible with the judgment in Ms O’Keeffe’s case. Every single application to the scheme was rejected for failure to prove prior complaint.
The independent assessor appointed to review applications to the scheme,retired High Court judge Iarfhlaith O’Neill, ruled on Monday that the condition was “an inherent inversion of logic and a fundamental unfairness to applicants”, and was “inconsistent with the core reasoning of the judgment of the ECtHR in the Louise O’Keeffe case”.
This establishes once and for all that rather than accepting its liability following the O’Keeffe judgment, the State spent five years (and €1.5m in legal costs) seeking to deny compensation to people entitled to it as a matter of human rights law.
So now is the time to put things right. In practical terms, this means that every person who experienced sexual abuse in the same inherently defective system should be compensated inthe same way. The Louise O’Keeffe judgment demands no less.
There are 360 known victims, and the scheme proposes to make payments of €84,000 per person. The total cost of this would be €28m — just 2% of the €1.4bn indemnity given to religious orders in respect of abuse in residential institutions.
Unfortunately, there is already evidence that the Department of Education is considering a continuation of the“divide and conquer” tactics that it has employed over the past five years. Thus far, it has only indicated that it will make payments in 13 cases specifically considered by the independent assessor.
However, to limit the implications to these 13 cases is a wilful distortion of the assessor’s decision. If the condition of prior complaint is inherently incompatible with the O’Keeffe judgment, then as a matter of international human rights law, it must be dropped for all applicants (and not just those whose cases tested the point).
Other tactics adopted by the department to date include distinguishing cases based on the point in time at which court proceedings were instituted, and denying all compensation to people who have never litigated in the courts.
There is neither logic nor humanity to these positions. They penalise people who lacked the emotional or financial resources to take a court case at a time when the State was attempting to financially ruin those who took one.
If two people suffered sexual abuse in the same defective system, it is abhorrent to compensate one and not another simply because court papers were or were not filed by a specific date.
And humanity aside, there is a strong argument that since the European Convention on Human Rights does not require people to pursue national remedies that had no reasonable prospect of success, all victims should be entitled to benefit from the O’Keeffe decision regardless of whether they ever took a case at national level (where Irish courts have repeatedly rejected all such claims).
This issue has dragged on for far too long already. The State has treated abuse survivors with contempt, and added insult to their significant injuries.
It needs to make amends now by paying everyone who suffered abuse in a defective school system the compensation that they are entitled to under human rights law. It has failed to do so once already; the same mistake cannot happen a second time.
Conor O’Mahony is director of the child law clinic at University College Cork. The clinic assisted Louise O’Keeffe’s case before the European Court of Human Rights, and made multiple submissions to the independent assessor in this case.
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