As part of the new laws that have been enacted in Victoria, Australia, regarding organizations that face allegations of child sex abuse, the onus (burden) of proof in liability cases has been shifted from child sex abuse victims, to those organizations themselves. Moving forward, this will make it easier for children to successfully sue any organization that fails to protect them from sex abuse.
The Onus of Proof
In the past, if a victim of child sex abuse that occurred inside an organization, such as a church or childcare facility, wanted to sue that organization, the burden of proof was on the victim. That victim needed to prove how and why the organization was neglectful, or how the actions of the organization contributed to their molestation.
However, this has now changed, due to the long-term Betrayal of Trust Inquiry, which concluded in 2014. This Inquiry found that child abusers in various organizations often obtained “credibility, trustworthiness, and easy access to children from their position within the organisation.”
Because of this easier access to children, and added ability to gain their trust when in a position of authority, the government of Victoria is now putting more requirements on such organizations to protect children in their care from abuse.
Those organizations will then also need to prove that they did protect children, rather than children needing to prove that the organization failed to protect them.
If an organization cannot prove what concrete steps were taken to protect children, and especially in accord with the state’s Commission for Children and Young People‘s Child Safe Standards, this would bolster a victim’s claim of liability and make it easier for them to win such legal cases.
This law is not retrospective, meaning that victims of past abuses cannot use it in their liability cases. As of right now, it also only applies to the state of Victoria, not all of Australia.
However, this is yet another great victory for victims, who no longer need to go through a tiresome, complicated, and detailed explanation of the practices of an organization that may have contributed to their sexual abuse. For Jehovah’s Witness children, this might mean no more having to explain the “two-witness” rule, the judicial committee process, the threat of disfellowshipping that is used to keep victims quiet, and all the other policies that allow child abuse to flourish in the organization.
Jehovah’s Witnesses would need to prove that they are taking concrete, absolute steps to keep children safe, rather than children bearing the burden of having to prove the lack of safety in the organization.
This law also puts even more pressure on organizations to comply with that state’s Child Safe Policies; one part of these policies says that organizations need to be proactive in evaluating risks to children, in putting child-safe practices into place, and in reevaluating those policies and practices as time goes on. Failure to do so could risk the loss of liability cases, and even the loss of an organization’s legal standing.
These policies also state that an organization should have a Code of Conduct for everyone in their organization, especially for those working with children. If Jehovah’s Witnesses fail to create such a Code, or congregants fail to live up to it, and these situations are not handled swiftly and appropriately, this could mean that Jehovah’s Witnesses would be less able to shift the blame for child sexual abuse to others, such as when calling such allegations “apostate lies” (see this post) or blaming homosexuals for pedophilia (see this post). This, too, could make it easier for victims to win liability cases against the religion.
Australian activists who have been campaigning for such laws are hoping to see it rolled out nationwide, and of course it’s also hoped that the rest of the world will follow in tightening the reins on organizations that are so negligent of children in their care.
I will try to follow up as much as possible, so please use the subscribe button at the right to be informed of any updates. In the meantime, you can read a local report about this new law here, and also find out more about the state’s Child Safe Practices at the website for Victoria’s Commission for Children and Young People.
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