Survivors of child sexual abuse, who courageously gave evidence to The Royal Commission into Institutional Responses to Child Sexual Abuse, are now torn between applying for compensation through the Redress Scheme and/or launching legal proceedings against the perpetrating organisations. Neither pathway is easy and neither has a guaranteed outcome. Historical child sexual abuse cases are notoriously difficult to win given the passage of time, lack of witnesses and the legal requirement for detailed information. Survivors and solicitors embarking on the marathon journey into the world of trauma and legal processes need to be well prepared.
Acknowledge the legal process will trigger trauma symptoms
Applying to the Redress Scheme or undertaking legal action is likely to be distressing. Revisiting the abuse, providing statements, and arguing your case may trigger flashbacks, nightmares and other trauma symptoms. During this time be proactive in care for yourself.
Gather a support team
- Invite someone, other than the solicitor, to join you on the journey and be your support person. Ask them to accompany you to appointments, read information, discuss the case with you and retain the focus in appointments when you are distressed. Give consideration to who you would ask. Another trauma survivor may also be triggered by the process. Perhaps there could be more than one person to assist you.
- Inform your family and friends that the legal process is likely to be stressful and lengthy. Try and be clear about what you need e.g. “After appointments, I may be distressed, can you spend some time with me?” “Can you come for a walk sometimes to help me manage the stress?” “I may just need a hug or my handheld, will you be able to do that for me?”
- Access support through a psychologist, counsellor, social worker, or caseworker and schedule regular appointments in advance.
Commit to a rigorous self-care plan
Legal cases may go on for years and are stressful. They are indeed a marathon and not a sprint. Plan to proactively manage your diet, exercise, and sleep. Schedule soothing and fun activities. Make times to connect with supportive family and friends. Many survivors underestimate the time a legal case will take.
Engaging a solicitor
It can be daunting to discuss your case with a solicitor, particularly if the perpetrator who abused you was a person of authority. Remind yourself that it is your decision whether to engage with the solicitor or not. You have the power. Often solicitors offer an obligation free consultation which enables you to decide if the solicitor is the right one for you. You may choose to interview a number of solicitors before making a final decision.
Agree with your support person that no decision, or signing of contracts, will be made at the first appointment with a solicitor. A solicitor that pushes you for an agreement at the first meeting is unprofessional. You have a right to go away and consider the information you received at the initial appointment.
Legal information can be incredibly complex. Was the solicitor able to talk about information in a way that you understood? Did they take the time to explain the process to you? What did your support person think about the solicitor? Do you know anyone that has used this solicitor? If so were they happy with the process?
Questions you may like to ask the solicitor:
- Do you have experience with child sexual abuse cases?
- What percentage of your cases are historic child sexual abuse cases?
- Do you understand trauma and how going through the legal process may impact me?
- Have you undertaken trauma training?
- Knowing that I am a trauma survivor how will you work with me so that this process minimizes my distress?
- What are the legal costs? What am I paying for? When do I need to pay them?
- What happens, particularly in a no win no fee situation, if an offer is received that I think is too low?
- Will you be dealing with my case personally?
- How long is this process likely to take?
- Will you be trying to keep my case out of court? Are there other ways of settling this case?
- If I find the process too much and I want to stop, what will happen? What costs will I need to pay?
- Can you suggest a realistic settlement amount? How often have cases you’ve worked on achieved this?
- Will past Medicare payments be deducted from my settlement? What else will be deducted?
- Will you keep me up to date with your assessment of the likelihood of winning the case as you understand more about the complexity of my situation?
Key points to remember when working with a solicitor
- The solicitor is not your therapist or your friend. Solicitors are expensive and you have engaged the solicitor to gather information and make a case of law on your behalf. Communication with the legal team will be task focused and brief. They will not want to chat, empathise or console you, your support team can do this for you.
- The solicitor will focus on information. Gather any relevant documents, and provide them with copies. Give the solicitor as much information as you have available, they will decide what is relevant.
- The solicitor may require your permission to access records such as Medicare payments and doctors records. Provide permission promptly. Not doing so will slow down the process of your case. These records are often necessary to prove your case.
- You may need to provide a detailed statement of the abuse. Talk with your solicitor about the least distressing way for you to do this. Many survivors find making statements triggering. Utilise your support team and professionals to help you at this time.
- The other party may demand you undertake a psychiatric assessment from an independent psychiatrist, not someone that you have been seeing for treatment. Your solicitor will inform you about this. This is part of the process and does not mean your solicitor disbelieves you or the medical professionals you have seen in the past.
- If the solicitor asks you further questions about the abuse, it’s not because they don’t believe you, it’s because they know the law and need to argue your case confidently.
- The solicitor doesn’t need you to tell them the story of your abuse each time you meet with them.
- Solicitors bill for every contact they have with you, so use their time wisely.
- Emails and phone calls can be triggering. We are so connected that distressing information pops into our hands through our phone, even when we are relaxing. If this is disturbing for you, set up a separate email account to receive information from your solicitor and disengage notifications to your phone.
- You may also ask the solicitor to email you or phone you only at particular times e.g. only send an email or phone me after 4 pm.
- Request that the solicitor summarises each conversation in writing. It can be hard to recall information that you receive when distressed.
- Ask questions if you don’t understand.
I am currently assisting a friend to negotiate the legal process. She, her daughter and I interviewed two solicitors. The first seemed overly aggressive. Her daughter and I receive all emails from the solicitors first and then work out an appropriate time for my friend to receive the email. Often we can provide the information the solicitor needs. If the solicitor needs to talk to my friend we arrange a time so that at least one of us can be present. I have driven her to psychiatrists appointments related to the case and cared for her afterward. She has regular appointments with her health providers.
This has been going on for over a year, and I can’t see an end in sight. It seems like we have got nowhere, though the solicitor assures me that there is work going on behind the scenes. It feels like the power remains with the perpetrator, as they put roadblocks at every junction. The legal information is complex and I struggle to understand it. Witnessing the deterioration of my friend’s mental health when she gave her statement was frightening. It is a grossly unfair and revictimising process and there is still more to come. There has to be a better way.
Do you have any other suggestions for survivors going through the legal process?
Edit: See Hilary’s comments below for thoughtful comments regarding reflecting on goals and outcomes prior to commencing the journe.
knowmore – a free service offering legal advice and information to help you consider your options about compensation, redress and other legal issues related to abuse.
National Legal Aid represents the directors of the eight state and territory legal aid commissions in Australia.
The legal aid commissions are independent statutory bodies that provide legal assistance services to the public, with a particular focus on the needs of people who are economically and/or socially disadvantaged.
- Lifeline: 13 11 14
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Adults Surviving Child Abuse (ASCA): 1300 657 380 www.asca.org.au
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