ABUSED BY THE LEGAL SYSTEM

By Peter Garsden, solicitor from Abney Garsden McDonald solicitors, Cheadle Hulme, founder member and Vice-President of ACAL (Association of Child Abuse Lawyers)

Any survivor of abuse will tell you that there are various situations that “trigger” them into remembering about the abuse they suffered in childhood. A similar situation, sound, smell, or visual image can re-awaken memories long since buried in the deep subconscious, and produce emotional, or even physical, pain. Not surprisingly, giving evidence in court is one of the most painful experiences, because the whole drama is replayed in front of lawyers, who are often verbally aggressive. The result is a repetition of the hurt feelings experienced at the time of the act itself, but often magnified by the passage of time.

When training lawyers I often recite the following list of triggers for the survivor in normal life outside of the legal system.

• Birth of one’s own child
• Familiar setting e.g. any closed space where the abuse took place in a small storeroom, or a hospital, school etc.
• Intimate medical examinations
• Discovery that one’s own child has been abused
• Any mention of abuse on the media
• Visiting a similar professional if abused by, say, a doctor in the course of an examination.

There are many other examples, too numerous to quote in this article. The following examples, however relate purely to the long journey the survivor may have to endure through the legal process: -

• Giving a statement to the police
• Giving evidence at the trial of an abuser – especially cross examination
• CICA Hearing
• Visit to a lawyer
• Medical examination by a psychiatrist
• Conference with a barrister
• Civil legal action compensation hearing

Often the sleeping demons within the survivor’s memory are awakened when the police knock on their door 20 to 30 years after the events, in the course of large-scale investigations. Often the survivor in an effort to protect them self denies all knowledge at first, because the memories are too painful to recount. Usually, after some reflection the survivor decides to co-operate “for the benefit of others and to make sure the abuser is stopped from harming anyone else”. The need to act is reinforced when the abuser is still in the child care arena. Disclosure is usually a bit at a time as the survivor tests the ability of the listener to cope with the information he/she is imparting. After each disclosure the survivor suffers the same nightmares and flashbacks. Tension increases, and the survivor often resorts to psychic numbing in the form of alcohol or drugs.

The same feelings are re-awakened after any similar event in the above list. I calculate that in the normal course of events the survivor has to tell their story a minimum of seven times, with other discussions of a less damaging nature in between. We thus expect clients to turn up fortified with alcohol if, indeed they turn up at all, such is their fear of the pain of disclosure.

During the legal process of criminal prosecution not enough protection is given to the survivors of childhood abuse even though evidence is given in adulthood. The trial does not have the status of female rape. If the survivor was giving evidence at the time of the abuse, whilst still a juvenile, the law would provide that regard should be had to all sorts of protective devices such as evidence by video link etc.

How fair is it for an abuse survivor who happens to be doing a custodial sentence for an unrelated matter to be held in custody at the High Court whilst they wait to give evidence against their abuser, feeling anxious, tense and apprehensive about facing their abuser, whom they probably haven’t seen for 30 years. If they can face giving evidence at all they have to stand in court within yards of their abuser, who probably is on bail in view of their lack of previous convictions. In a famous high profile case one witness was a transsexual who had become very sexually confused a result of the abuse. Another could not face the trauma of giving evidence after spending several days in custody waiting to give evidence. The alleged abuser, who had not faced a full trial, was released after no evidence was offered by the prosecution and proclaimed to be a man with not a blemish on his character. The survivors had collapsed under the massive pressure of the trial and the media attention.

Peter Garsden is a partner in Abney Garsden McDonald solicitors of Cheadle Hulme, Cheshire. He leads a department of 30 staff who specialise in Child Abuse Compensation claims. He has written articles for the Legal and National press, lectures on the subject and has much experience of radio and television He can be emailed at peter@abneys.co.uk See the firm’s website www.abneys.co.uk

28th November 2007