Posted on Oct 27, 2017 by Mike Kemp
Personal Injury Solicitor, Mike Kemp explains his views on why the Time-Bar should be removed for abuse victims over 18 where there is a power imbalance.
I wrote last year about Scottish Government proposals to remove the time limits for childhood abuse claims and those proposals have now been passed and came into effect this month. Now the Scottish Government have produced a helpful guide to making such claims.
It is pleasing to see the Scottish Government take such a sympathetic view to the victims of childhood abuse and they should be applauded not just for the legislation but for trying to make matters as easy as possible for victims to make a claim. I would like to see that extended to victims of abuse who were abused by someone in a position of power over them, even if they were over 18 at the time of the abuse.
Removing time limits is necessary because the nature of abuse means it is very difficult for the victim to come forward and speak about it when the abuser is in a position of power. The recent accusations of sexual harassment, sexual assault and rape against film producer, Harvey Weinstein and director, James Toback bring into sharp focus how difficult it is to make an allegation against a person in a position of power. Victims feel unable to come forward unless they know their allegations will be taken seriously and this was certainly true of the victims of high-profile abusers such as Jimmy Savile, Stuart Hall and Rolf Harris. In child abuse claims that power imbalance comes from the abuser being an adult and the victim a child but it is apparent from the #metoo tweets on twitter that the reason much of the harassment or abuse suffered by adults had not been spoken about was because there existed an imbalance of power between the victim and their abuser.
There are ongoing police investigations into Harvey Weinstein dating back to the late 1980s and it is likely there are many adults in different industries who suffered historic abuse but felt unable to come forward, just as has happened with child abuse. There may be evidential difficulties in proving these offences beyond reasonable doubt but a civil claim would have greater prospects of success because of the difference in the standard of proof. The case brought against the footballer David Goodwillie which my colleague Caroline Kelly wrote about earlier this year is a good example of that.
Now that victims feel more able to come forward, what is their remedy, particularly if the police are not able to take action? They can make an application to the Criminal Injuries Compensation Authority. However, the CICA requires applications to be made within two years of the incident, although they can consider allowing applications late. Any civil claim brought directly against the abuser would most likely be out of time because of the three year time limit. The court does have a discretion to allow the claim late but the prospects of them exercising that is unclear. I call upon the Scottish Parliament to make it clear by legislation that a person abused by someone with power over them, regardless of their age when abused, should be able to seek justice and redress through the courts without artificial time limits put in their way.
Mike Kemp is an Associate in our personal injury team and can be contacted on 01382 723171 or firstname.lastname@example.org . Alternatively, contact the Personal Injury Team on 0800 731 8434.