Sexual Abuse Claims Blog

Albert LeBlanc - Ex Priest and Probation Officer Pleads Guilty to Sexual Abuse

Fri, 18 May 2012 10:49:02 -0400

Albert LeBlanc a fomer catholic priest from the Yarmouth Diocese pleaded guilty this week to charges that he sexually abused six boys in the 1970's and 1980's. Some of the charges stem from the period when LeBlanc was employed as a priest with the Roman Catholic Diocese of Yarmouth the later charges relate to periods when he was employed as a case worker with Social Services and then a probation officer.

LeBlanc is facing 44 more charges which are scheduled to be dealt with in August.

The Diocese of Yarmouth has already been sued by several of LeBlanc's victims. The potential legal exposure for the Diocese, Family and Children's Services and Probation Services could be enormous.

More Information

Albert LeBlanc pleads guilty to sexual abuse. Will other survivors break their silence?

Sexual Abuse Charges Against Former Priest Albert LeBlanc Raise Interesting Legal Issues

More Criminal Charges Against Former Yarmouth Priest Albert LeBlanc

Date Set for Albert LeBlanc Sex Abuse Trial

Another former boy scout leader charged with sexual abuse

Fri, 11 May 2012 14:41:28 -0400

Scouts Canada has apologized for not reporting suspected cases of child abuse. They are conducting an internal investigation into hundreds of sexual abuse claims from past cases. See Scouts Canada Admits Not Reporting Abuse Claims.

Now they can add another abuser to their list. Notorious pedophile and former boy scout leader Ralph Rowe has been charged, again, with multiple counts of sexual abuse against young boys.

Media reports indicate Scouts Canada has already been sued for sexual abuse perpetrated by Raph Rowe.

Former Boy Scout Leader Facing More Sexual Abuse Charges

Walk So Kids Can Talk: Fundraiser for Kids-Help Phone

Thu, 26 Apr 2012 14:07:52 -0400

The Kids Help Phone is a non-profit organization that provides a telephone counselling service to youth 24 hours a day, 365 day a year.

Kids Help Phone provides support to youth suffering from a variety of problems including abuse, bullying, suicide, depression and online issues like cyberbullying.

Kids Help Phone doesn't receive any core government funding and relies entirely on the support of individual donations and corporate sponsors.

Did you know?

* 87% of students in grades 8-10 reported witnessing bullying in the past year.

* On average at least one student in every class suffers from an anxiety disorder.

* Researchers have found up to 24% of youth experience at least episode of clinical depression before they turn 18.

* 20% of students report avoiding school due to fear of bullying.

On Sunday, May 6, 2012 volunteers from across the country will be walking to support The Kids Help Phone.

I am proud to support this worthy cause, and I hope you will too. If you want to volunteer, donate or just get more information, you can go to www.walksokidscantalk.ca.

Incest Survivor Waits Too Long to Sue – Claim Struck-Out

Wed, 25 Apr 2012 15:16:37 -0400

Historical sexual abuse claims can be complicated and difficult to prove for many reasons; the abuse happened long ago, witnesses may have died, records are destroyed and memories fade.

Limitation Periods a Barrier

One of the biggest hurdles abuse survivors faced was the fact that the time limit to file a claim had usually run out by the time the survivor had the strength or courage to be able to disclose what happened to them as a child.

Supreme Court Provides Greater Access to Justice for Survivors

In 1992, the Supreme Court of Canada recognized the difficulties that sexual abuse survivors face in being able to pursue compensation for their injuries. The Court tried to provide greater fairness to abuse survivors who pursue civil claims against their abusers later in life.

In M(K) v M(H) the Supreme Court of Canada ruled that limitation periods in provincial legislation do not begin to run until the abuse survivor is aware of connection between the defendant’s wrongful act (the abuse) and the plaintiff’s injuries (the effect of the abuse).

This means that abuse survivors are now able to bring forward claims years, sometimes even decades, after the abuse occurred.

When Does Time Run Out?

However, there are limits to the courts discretion to extend the ability for survivors to pursue their claims through the courts. A recent case from Alberta’s Court of Queen’s Bench is a perfect example.

In OW v WP the Plaintif, OW, sued her brother, WP, for incestuous sexual abuse she has claimed to have suffered between 1940 and 1945.

The defendant, WP, made a motion to strike out OW’s claim based upon Alberta’s Limitations Act.

In considering the motion, Justice Mahoney referenced to the Supreme Court of Canada’s decision in MK and stated at paragraph 41 of his decision:

“As stated in M(K), the tort claim, although subject to limitations legislation, does not accrue until the plaintiff is reasonably capable of discovering the wrongful nature of the defendant’s acts and the nexus between those acts and the plaintiff’s injuries. In MK that discovery occurred only when the applicant entered therapy. The law suit was commenced promptly thereafter. La Forest J., for the majority said at paragraph 30:

“It is at the moment when the incest victim discovers the connection between the harm she has suffered and her childhood history that her cause of action crystallizes.””

The difficulty in the OW case was that the plaintiff waited for more than fifty years to bring forward her claim. The judge examined evidence provided by OW during her discovery, which confirmed that she and her sister were actively contemplating suing WP for compensation as early as 1972. Justice Mahoney stated at paragraph 33:

“OW, in her discussions with E, indicates that she was aware of the link between the alleged sexual assaults and problems in her life. She knew she could sue WP then, and her sister E would not join her. OW then told E she was going to sue WP, plainly indicating her awareness of the right to do so as early as 1972, when these discussions took place.”

Justice Mahoney concluded, paragraph 49:

“As already discussed when referring to MK, sometimes, regardless of the passage of time, limitation periods begin when the claimant discovers the harm from sexual abuse long after it occurred. Taking the latest possible time in this case, being when OW and her sister E were discussing suing WP some time before 1972, the limitation date would have expired in 1974 at the latest. As this action was commenced some 25 years later in 1999, it is statute barred.”

The unfortunate result in the OW case was that her lawsuit against her brother was struck out by the court.

Self-Blame a Key Issue in Abuse Claims

There is no doubt that it is difficult for survivors of sexual abuse to disclose what happened to them. Survivors often struggle from feelings of self-blame that can be difficult to overcome without professional help. In fact, in the MK case, the Supreme Court of Canada went so far as to say that there is a presumption that incest survivors were not capable of making the connection between the acts of abuse and the harm caused by the abuse until they received professional counselling.

Counselling is Critical for Survivors!

I believe that access to professional counselling is a critical part of the recovery process for any abuse survivor. In fact, I think it is counselling that helps transform abuse victims into abuse survivors.

Free Resource for Abuse Survivors

That is why we prepared The Maritime Directory of Services for Survivors of Sexual Abuse. If you would like a free copy of the Directory you can download a copy from our website by clicking on the link or you can contact us through this blog, or call us toll-free at 1 (877) 423-2050.

Bishop’s Report Shows Abuse Allegations Against Priests Continue to Increase

Wed, 11 Apr 2012 15:36:59 -0400

The US Conference of Catholic Bishops released a report this week supposedly showing the number of sexual abuse allegations made against American priests last year. How the data in the report should be interpreted depends on your point of view.

The report indicated that there were 594 new credible allegations of sexual abuse of a minor by a priest during 2011. That’s more than a 15 percent increase over the previous year.

However, the Conference of Catholic Bishops is quick to point out that “only” 23 of the new allegations involved children who were under the age of 18 in 2010 or 2011. In other words, the Bishops are trying to suggest that the problem of sexual abuse by priests is an historical one and that there are few current cases of sexual abuse by priests.

Needless to say, the Conference of Bishops puts the best possible spin on the report. Cardinal Timothy Dolan, the USCCP President, said that the report: “Supports the conclusion of both studies done by the John Jay College of Criminal Justice – that the majority of allegations are way in the past.” Of course, it’s not actually clear that the Jay report’s conclusions said any such thing.

Repressed Memory and Delayed Disclosure

This of course ignores the fact that victims of abuse often conceal what happened to them for years, even decades, before finally disclosing to their family, friends or therapists. Sometimes victims traumatic memories are repressed until they are triggered later in life.

Given the serious flaws with the Jay report, it is difficult to give much credibility to any conclusions arising from the report. For a more detailed discussion you can take a look at my article The Catholic Church and Sexual Abuse: Is the church’s response real action — or window dressing?

A couple of interesting facts from the report:

More than 6000 priests have been accused of sexually assaulting children in the United States since 1950.

Last year, allegations were made by 588 people against 461 priests.

More Accusations than Ordinations

Only 275 priests were actually ordained in the United States last year, so that means that the number of allegations against priests is actually outpacing the number of priests being ordained.

For those that are interested the website bishopaccountability.org has assembled an exhaustive database from a variety of sources outlining the total number of abuse allegations made against priests by year and the number of survivors along with references to supporting documents.

No Accountability

Given the thousands of priests that have had credible allegations of sexual abuse made against them and the hundreds of victims who have had the courage to come forward, it is astonishing that no Bishop, Cardinal, or Vatican official has ever been sanctioned or criminally charged for knowingly transferring abusive priests or covering up sexual offences against children.

The current criminal prosecutions against Monsignor Lynn in Philadelphia and Bishop Finn in Kansas City are a welcome change.

What about Canada?

The Canadian Conference of Catholic Bishops does not keep a database similar to the US Conference of Catholic Bishops. At least, not one that they make public.

This information would be readily available to dioceses across Canada. In fact, Bishops in each diocese are required by Canon Law to keep a record of priests accused of abuse.

There can be only one reason why this information is not being collected or made public. It is because the Canadian Conference of Catholic Bishops does not want to know how a big a problem sexual abuse by priests actually is here in Canada.

Scouts Canada Admits Not Reporting Abuse Claims

Fri, 17 Feb 2012 10:19:28 -0400

After issuing a blanket apology to former Scouts who were sexually abused and claiming that every single allegation of sexual misconduct was reported to authorities, Scouts Canada has now admitted that some allegations of sexual misconduct were not investigated and not reported to police as required by law and Scouts Canada's own policies.

Last year Scouts Canada said they have requested KPMG to conduct an "independent review" of 350 past allegations of suspected or alleged sexual abuse. What isn't clear is if the 350 is the number of suspected victims or the number of suspected abusers.

Tip of the Iceberg
The fact that there are 350 past victims or abusers should be a huge concern to Scouts Canada. As a sexual abuse lawyer, I have been representing survivors of childhood sexual abuse for more than 20 years. I have represented hundreds of survivors.

Over 20 years and hundreds of cases I have only had one case where there was a single victim!

There is abundent scientific literature that shows sexual offenders have a very high chance of re-offending.

For example, in one study of recidivism rates of pedophiles (how often pedophile re-offend) the researchers found: "... recidivism rates were 22.8%, 33.9%, and 45.6% for sexual, violent, and any reoffence, respectively."

Simply put, the survivors who have come forward to report that they were abused are likely just the tip of the iceberg.

Whether the 350 number is an estimate of the number of past victims or the number of suspected abusers, it means that there could be hundreds of victims who have not yet reported the abuse they suffered.

Secrecy Protects the Abusers

Sexual abuse is a crime of secrecy. Victims suffer in silence, sometimes for decades, before being able to come forward and disclose what happened to them.

There are services for survivors of sexual abuse to get help. But the first step is Breaking the Silence to tell someone.

Sports and Scouts at Risk of Liability for Sexual Abuse

Fri, 03 Feb 2012 13:15:45 -0400

Vicarious Liability for Sexual Abuse Claims: What does the Future Hold for Sports Organizations, Scouts and Not-For-Profit Organizations?

Recently CBC’s Fifth Estate aired a report exposing Boy Scouts Canada’s system for recording the names of pedophiles within the organization, euphemistically referred to as the “ineligible volunteer list”.

Graham James recently pleaded guilty to repeated sexual assaults on former NHL star Theo Fleury and another unidentified junior hockey player.

Will this media attention result in litigation similar to that experienced by the Catholic Church? If so, what’s the basis for potential liability?

The Beginning

Vicarious liability for sexual abuse really started with the Supreme Court of Canada decisions in Bazley v. Curry 4 and Jacobi v. Griffiths.

The Court confirmed the traditional Salmond test for vicarious liability which holds an employer liable for the actions of an employee where the abusive acts were authorized by the employer or may be considered “modes” of acts authorized by the employer.

Where it is difficult to apply the Salmond test, the court endorsed a new enterprise liability test. In short, vicarious liability exists when there is a significant connection between the creation or enhancement of risk by the employer and the harm that flows from the risk.

These decsions were hailed as groundbreaking or criticised as dangerous, (depending mostly on whether counsel represented abuse survivors or institutions who employed accused abusers).

Employers Offered Relief

The Supreme Court of Canada denied vicarious liability for sexual abuse in three decisions from British Columbia, KLB v. British Columbia ; MB v. British Columbia and EDG v. Hammer .

In KLB and MB vicarious liability was denied for sexual abuse by foster parents. The court stated the close relationship between creation of risk and harms from wrongful acts normally wouldn’t exist in cases involving independent contractors.

In EDG a school janitor sexually abused a student for several years starting when she was in grade 3. Binnie J. stated opportunity without authority will “seldom” be sufficient to establish vicarious liability.

The trilogy decisions appeared to significantly limit the circumstances where victims of childhood abuse could receive compensation.

Focus on Psychological Intimacy

Doe v. Bennett was decided shortly after the trilogy. The Supreme Court confirmed vicarious liability of the Diocese of Saint George’s Newfoundland and Labrador for sexual abuse by Father Kevin Bennett stating:

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.

McLachlin, C. J. concluded that:

The enterprise substantially enhanced the risk which led to the wrongs the plaintiff – respondents suffered. It provided Bennett with great power in relation to vulnerable victims and with the opportunity to abuse that power.

Liability of Religious Organizations (Mostly) Clear

Bennett has, for the most part, established religious organizations are vicariously liable for acts of sexual abuse by religious employees. For example in Doe v. Fifield vicarious liability was imposed for sexual abuse committed by a volunteer minister with the Salvation Army. Dunn J. placed weight on the psychological intimacy the Salvation Army encouraged it’s ministers to develop with their congregations.

An exception is Wilson v. United Church of Canada . The court refused to impose vicarious liability for sexual abuse by a volunteer lay minister. The court held there was insufficient evidence of “job created intimacy” to establish vicarious liability.

Independence, Discretion and Intimacy

In BMG v. Nova Scotia the province was vicariously liable for sexual assaults by a probation officer. Our Court of Appeal stated:

In short, the province’s probation service gave Lalo independence and discretion in carrying out his duties and these enabled Lalo to assault BMG repeatedly.

The Court turned to one of the key elements in Bennett, finding Lalo’s assaults:

…were strongly related to the psychological intimacy inherent in his role as a probation officer and that this psychological intimacy encourages victim’s submission to abuse and increases the opportunity for abuse.

Liability of Sports Organizations and Scouts Canada

So when will vicarious liability be imposed and when will it be denied?

Where courts have imposed vicarious liability, they have focused on the power and authority given the abuser by the institution. Independence and discretion has been critical. Vulnerability of the victim is a given. Finally, physical or psychological intimacy has been important.

Where vicarious liability has been denied, courts have held the abusers employment was not connected to the risk or that the abusers actions were not connected to the employer’s enterprise.

Sports and Scouts

Where does this leave amateur sports, the Boy Scouts and other non-profit organizations?

It goes without saying that young children are vulnerable to psychological manipulation and intimidation. But one might argue a child athlete’s vulnerability increases as he or she advances to the higher levels of amateur sports and gets closer to the “holy grail” of a professional sports career (or university scholarships).

In his autobiography “Playing with Fire” Theo Fleury says:

The most influential adult in my life at the time was telling me that what I thought was wrong was right. I no longer had faith in myself of my own judgment.

Given the highly competitive nature of amateur sports today there is little doubt coaches ( who potentially control a child athlete’s future) wield tremendous influence, power and authority. I would suggest amateur sports organizations are at significant risk of being held vicariously liable in future sexual abuse litigation.

The scouting movement (like the Catholic Church) has a strict hierarchical structure. Scouts belong to small groups called dens or patrols. The small groups are combined into larger groups called packs or troops under an adult volunteer known as the scout master. Scout Masters have a great deal of independence in how they run their troops.

Those seeking to impose liability on the Boy Scouts would be wise to investigate the independence granted to the scout leader, the authority the leader exercised over the troop and the degree to of physical or psychological intimacy between the scout leader and the victim.

The Future

What does the future hold? As always these cases will depend on their own facts. Claimants’ counsel will focus on vulnerability and psychological intimacy while defence counsel will argue lack of connection between the risk and the enterprise.

A shorter version of this article originally appeared in the February 3, 21012 edition of Lawyers Weekly Magazine.

Crazy Decision of the Month: Greece Defines Pedophilia as a Disability

Wed, 18 Jan 2012 10:32:59 -0400

In what has to be one of the most stunning examples in history of government incompetence, the Greek government has decided to expand a list of categories that entitles persons with disability to receive financial support.

I can hear you say..."But wait John, isn't helping persons with disabilities a good thing?"

Yes it is. Extending aid to persons with legitimate disabilities is not the problem. That's something any forward thinking person can agree with, right?

Molest a Child Get Paid By the Government

What is ludicrous, indeed even offensive to persons with real disabilities, is that Greece has decided to define pedophilia as a disability. The decision means sexual deviants who molest children will be entitled to receive financial assistance from the government! Pedophiles will be entitled to receive “disability” pay up to 35% of their “pre-disability” income.

Incomprehensible

Greece’s national confederation of disabled people referred to the decision as “incomprehensible” and warned adding pedophiles (as well as exhibitionists and kleptomaniacs) to the list of people entitled to financial assistance means that there will be fewer financial resources available for persons who are truly disabled and in need.

I rarely post on matters outside of North America. But this decision is just so completely and mind-bogglingly wrong that I felt I had to comment. No wonder Greece is in the economic situation it is in.

What are your thoughts? Let me know in the comments.

Court to Rule on Reliability of Repressed Memory in Abuse Case

Mon, 16 Jan 2012 16:15:33 -0400

Sexual abuse victims often struggle for years with memories of the traumatic abuse they suffered as children. In some cases, the experiences are so traumatic that they block out (or repress) the memories.

This week the Minnesota Supreme Court is hearing a motion to determine the validity of repressed memory in sexual abuse cases.

Courts will not allow expert evidence unless the party seeking to submit the evidence can establish that the evidence is reliable.

In Canada, the Supreme Court of Canada in R v. Mohan decided the test to be applied when considering expert evidence. Mohan sets out four specific criteria for the admissibility of expert evidence. They are:

1.Relevance;
2.Necessity in assisting the trier of fact;
3.Absence of any exclusionary rules; and
4.A properly qualified expert.

The Supreme Court recently weighed in on this issue again in R. v. Trochym where the majority of the Supreme Court Justices reiterated that reliablity is an essential component when determining the admissibility of expert evidence.

Is Repressed Memory Reliable?

Determining the accuracy of a plaintiff’s memory in cases of childhood sexual abuse is critical to the success of a plaintiff’s claim.

When considering evidence relating to repressed memory syndrome the court needs to understand how human beings store memories.

Experts agree that there are three components to our memory:

1.Sensory memory;
2.Short term memory; and
3.Long term memory.

The scientific literature generally agrees that although our ability to store and retrieve memories is usually accurate, memories naturally tend to fade over time.

Factors Resulting in Better Memory

Psychologists have found that there are five factors that tend to result in clearer or better memory retrieval over time:

1.Recency;

2.Meaningful memories (you are more likely to remember the details of your marriage twenty years ago than what you had for breakfast a week ago);

3.Emotional events are more likely to be remember than neutral events. (So you are more likely to remember the drive to work where someone almost crashed into your car than the hundreds of other routine commutes you made every other day of the year);

4.Paying attention. Obviously if someone is focused on paying attention to events around them they are more likely to remember the act than if they are not paying attention; and

5.Reviewed after the event. If you are in a car accident and write down what happened or give a statement to the police or an insurance adjuster you are more likely to remember the event because you have reviewed or repeated the event over again in your mind.

Dates are Difficult

Experts have found that specific dates are very difficult to remember unless they can be tied to a specific event or milestone. In other words, you are more likely to remember an event that happened in the past because you remember that it happened after your birthday party than you are to remember an event that happened on a random uneventful day.

Does Trauma Effect Memory?

Sexual abuse lawyers, and experts who treat survivors of childhood abuse, have to consider what effect trauma has on memory. The weight of scientific evidence appears to indicate that the content of traumatic memories are usually accurate and can be retained over very long periods of time.

Traumatic memories appear to be different than ordinary memories. They tend to be very vivid despite the passage of time and often are re-experienced as flashbacks (one of the symptoms of post traumatic stress disorder).

One of the most common differences between traumatic memories and ordinary memories is that gaps in recall or fragmented memories are very common. Memories tend to be disjointed or lack detail.

Fragments?

Psychologists believe in situations of extreme emotion, a victim’s attention may be narrowed, causing fragmentation of their memories.

Victims may dissociate during and after traumatic events.

Finally, victims may repress the memories all together. Psychologists believe that repression of traumatic memories may be a means of coping. The fact that child abuse often takes place secretly means that the events are not likely to be reviewed at a later date (one of the factors which helps increase recall).

What about False Memories?

Defendants in sexual abuse cases often claim the victim is experiencing false memories. See for example:

Priest Sex Abuser Appeals Conviction: Denies Existence of Repressed Memory

Repressed Memory of Sexual Abuse a Creation of the Media?

Can False Memories be Created?

It does appear that false memories can be implanted. The ability to create and implant false memories tends to depend on the importance of the event and the likelihood or plausibility of the memory.

Experts agree that false memories are more likely if the suggested event is believable, plausible or has some basis in reality.

For example, I normally stop at a local drive through for a coffee on my way to work in the morning. Experts suggest that it would be possible to implant a false memory that in addition to my coffee I bought a donut on my way to work. On the other hand, it would be unlikely that I would go to the drive through and buy a watermelon.

Experts have determined false memories for positive events (like a birthday party) and neutral events (wearing a blue baseball cap) are more likely to be produced than false memories for negative events (like sexual abuse).

Amnesia

Can you forget traumatic events?

It is well documented that traumatic events can be forgotten. Studies of war veterans has determined that combat trauma can result in amnesia.

There are well documented studies proving amnesia for victims of childhood physical abuse, rape victims, car accident victims and survivors of natural disasters.

Childhood Sexual Abuse

Studies of victims of documented childhood sexual abuse have shown that between 20% to 60% of abuse survivors are reported having times in their lives when they had no memory of their childhood abuse.

Studies also appear to confirm that recovered memory is as reliable and accurate as continuous memory in studies that compared abuse that was documented in hospital records.

What does it all mean?

Victims of childhood sexual abuse can have periods where the abuse is forgotten and then remembered at a later date.

Traumatic memories may be fragmented or disjointed but generally tend to be accurate.

False memories can be implanted but it is unusual and very unlikely if a memory is of an improbable or unusual event.

Finally, memories can be recovered and corroborated by objective third party evidence.

Former Bishop Lahey to be Sentenced on child porn charges today

Wed, 04 Jan 2012 10:58:23 -0400

Raymond Lahey, the former Bishop of Antigonish, will hear today how much time he is to serve for his admitted possession of child pornography.

In May last year Lahey surprised the court by pleading guilty and asking to go to jail pending his sentencing hearing.

I speculated at the time that Lahey's guilty plea was less a sign of contrition and more likely a legal tactic to gain advantage during his sentencing. Courts in Canada have typically granted a two for one credit for time served while awaiting sentencing. Last year Canada changed the law forbidding the 2 for 1 sentencing credit. But Lahey's lawyer successfully argued that because Lahey was charged in 2009 and the sentencing rules were not changed until 2010, he should still be entitled to the 2 for 1 credit.

So the eight months he has served so far will translate into sixteen (16) months in the eyes of the court.

Lahey's lawyer has asked for a one year sentence, the minimum that the court can impose under federal sentencing rules. The Crown has asked for a sentence of 18 to 22 months.

So there's a good chance that Lahey will be walking out of court a free man after his sentencing hearing this morning.

Update

The judge has sentenced Lahey to 15 months in jail and two years probation. So with the 2 for 1 credit for time served, Lahey will be released today!

What do you think? Has justice been served? Is the sentence appropriate?

Are Sexual Abuse Injuries Indivisible Invisible, or Both? - Estable v. New

Mon, 21 Nov 2011 17:13:28 -0400

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.

Did Penn State Steal the Catholic Church’s Playbook?

Tue, 15 Nov 2011 10:11:26 -0400

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)

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In Remembrance

Fri, 11 Nov 2011 00:39:46 -0400

Is Archbishop Penney Guilty of Perjury?

Wed, 09 Nov 2011 11:55:26 -0400

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 Secret List of Abusers: Players are different but the script is the same.

Mon, 07 Nov 2011 11:26:42 -0400

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.