For people who have suffered sexual abuse, especially as a child, it may take years before they have the courage to tell the police about their ordeal. And in the time that passes, their abuser may have died.
The classic example of this is in the case of Jimmy Saville. Serious allegations about the Saville’s conduct with underage girls began surfacing a year after his death. Now we know that he was one of the most prolific child abusers in British history.
When it comes to criminal prosecutions, the UK is unique amongst the EU bloc in that there is no statutory limitation period for the prosecution of sexual abuse crimes. For example, entertainer Rolf Harris was questioned, arrested, and subsequently jailed for historic sexual abuse crimes when he was 83 years’ old.
When it comes to historic abuse cases, the defendant will be judged by the standards at the time the offences were permitted. For example, marital rape did not become a crime in the UK until October 1991, so a man can only be charged with raping his wife if the act was done on or after this date.
Of course, once a person is dead, they cannot be posthumously brought to trial. However, contrary to what many victims believe, compensation can be claimed from their estate and employer.
Claiming under the Criminal Injuries Compensation Authority (CICA)
The Criminal Injuries Compensation Scheme is a government funded scheme designed to compensate blameless victims of violent crime in Great Britain. If you have suffered from sexual abuse then you may be able to make a claim against this scheme, although strict eligibility criteria apply including a two-year time limit on bringing a claim once an offence has been reported to the police, except for some exceptional circumstances.
If you do meet the eligibility criteria, you can claim compensation, even if your abuser has died.
Making a civil claim
There are two ways to make a civil claim for compensation if you find the perpetrator has died. One is to make a claim against his or her employer, if they committed the acts of abuse while working. The other is to make a claim against the deceased’s estate, providing the assets of the estate can still be traced.
Vicarious liability refers to a situation where someone is held responsible for the actions or omissions of another person. In a workplace context, an employer can be liable for the acts or omissions of its employees, provided it can be shown that they took place in the course of their employment.
The House of Lords in the case of Lister v Hesley Hall set out how a duty was imposed on the employer in respect of their employee. Here, their lordships held that institutions such as schools, care homes and hospitals are in a special relationship of duty or responsibility to those under their care. When they then entrust a duty to an employee and who then breaches that duty, the employer is liable for employee’s tortious act (in this context, the sexual assault). Importantly however, the claimant must establish a sufficient connection between the perpetrator’s wrongful conduct and their employment. It is not sufficient that the employment gave the abuser the opportunity to be at the premises.
In the case of Lister v Hesley Hall, the abuser was employed as the warden of a boarding annex to a school for children with emotional and behavioural problems. That position, and the close contact with the boys that it entailed, created a sufficient connection between the abuse and the work he had been hired to do.
The test is really one of control and knowledge. If the victim can show that the organisation exercised day-to-day control over its members or staff and knew or at least were suspicious that abuse was taking place, particularly if the abuse took place on the organisation’s premises (such as in many of the instances involving Jimmy Saville, where the abuse happened at the BBC), then it is likely the victim can sue the organisation rather than the individual abuser.
Breach of direct duty of care
The claimant may be able to establish that a public authority itself owed a duty of care and that it breached that duty. Such a cause of action is to be distinguished from the vicarious liability of the public authority for the breach by employees of their duties.
A claim might arise where there was negligent supervision or management of an institution on the part of an authority, such that abuse occurred or was permitted to occur.
The breach of duty may be founded where there are failings in:
- process of staff recruitment
- supervision of staff working in close proximity to children
- response to reports, complaints or warnings
- following up internal investigation
Why pursue a claim against an organisation instead of an individual?
Very often victims will discover that their abuser, whether alive or dead, has or had little money or assets with which to pay out compensation ordered by the court. An organisation or business however, is likely to have insurance and considerable capital to meet a compensation claim.
Justice and compensation for victims of sexual abuse
If you are the victim of sexual abuse and believe you have a claim, please speak to us, regardless of whether or not your abuser is still alive. We will look into your case in a sensitive, compassionate manner and quickly let you know if you have a claim worth pursuing.
At IBB, our personal injury and abuse team, led by Malcolm Underhill, has the expertise and knowledge to advise and represent you if you wish to make a claim following sexual abuse. To talk about how we might be able to help, please phone us on 0333 123 9099, email us at firstname.lastname@example.org or fill in our contact form. Any discussions you have with us will be in the strictest of confidence and handled with the utmost sensitivity.
  All ER (D) 37 (May)