By Juliet Davis
There is a myth that civil litigation is superior to redress schemes for institutional wrongs such as sexual and physical abuse.
This myth is supported by three claims:
1. ‘Civil litigation establishes legal liability and redress schemes do not.’
2. ‘Civil litigation can address all relevant wrongs and harms to victim/survivors.’
3. ‘Civil litigation provides better outcomes for victim/survivors.’
These claims are misleading and must be challenged.
First, let me briefly set out what is meant by redress schemes. To do so, I draw upon my work in the International Redress Project, led by Professor Kathleen Daly. Redress schemes are established by state and non-state institutions (such as churches). Most operate for a fixed period (1 – 10 years) and have specific eligibility criteria. Successful claimants may receive a range of outcomes, including a money payment, apology, and counselling.
Claim 1: ‘Civil litigation establishes legal liability, redress schemes do not.’
This claim assumes that all civil litigation ends in a court judgment.
A court judgment establishes legal liability. It also orders a money payment. However, only a tiny share of civil claims (less than 2% in institutional cases) end in judgment. Most civil cases are settled outside of court.
It is unrealistic to focus on civil judgments when comparing civil litigation and redress schemes. Instead, we need to compare like with like.
Judgments are court-determined. Settlements and redress schemes are not.
Settlement agreements are negotiated between the parties and commonly exclude liability. Likewise, a redress scheme does not establish liability. Both involve the payment of money without a court order.
It is a myth that civil litigation establishes legal liability, when only a tiny share does. We instead need to consider whether outcomes are court-determined or not.
Claim 2: ‘Civil litigation can address all relevant wrongs and harms to victim/survivors.’
We are all aware of media stories of individual survivors receiving high civil payments for institutional sexual abuse. You may have also heard that law reforms have improved access to civil justice for sexual abuse, as well as physical and emotional abuse in some circumstances.
These kinds of stories may lead people to believe that civil litigation is now open to addressing all institutional wrongs experienced by victims. This is not the case.
Sexual and physical abuse claims fit within personal injury law. However, many other forms of institutional wrongs do not, including perpetuating a climate of fear, humiliation, and control, and systematically failing to meet children’s basic needs. Redress schemes can address a broader range of institutional wrongs than civil litigation.
Claim 3: ‘Civil litigation provides better outcomes for victim/survivors.’
It is true that, on average, civil payments are generally higher than redress scheme payments. However, this is not always the case.
Even if we accept this claim, it is not sufficient to only compare average payments.
We need to consider all the outcomes that civil litigation and redress schemes may provide.
Civil judgments order money. Research with survivors makes clear that money alone is often an insufficient form of justice. Money should form part of a group of measures available to survivors.
Redress schemes offer a range of outcomes that survivors have said they want, including:
- public/personal apologies
- memorials
- counselling
- practical supports with employment, housing, literacy, and addiction
- access to records
- family tracing and reunion
- survivor network support
Summary
Myths grow because the claims and assumptions supporting them appear unassailable. However, current claims about civil litigation and redress stand on shaky ground.
Court judgments do establish legal liability. But we can’t compare redress schemes with court judgments, because most civil claims are settled. Thus, we need to compare non-court determined outcomes: redress schemes and civil settlements.
Recent law reforms have removed some obstacles to court access, but there are several wrongs that civil litigation does not address that redress can.
Civil payments are higher than redress payments, on average. But redress offers a broad range of outcomes.
Implications
Rather than pitting civil litigation and redress schemes against each other, we should encourage access to both. Indeed, civil litigation can draw ideas from redress schemes, like having meaningful non-monetary outcomes in settlement agreements. These hybrid arrangements are a positive step towards providing survivors with the types of outcomes they are seeking.
We must also insist that assertions about the comparative benefits of civil litigation and redress are supported by empirical evidence.
Juliet Davis is a research fellow in the Griffith Criminology Institute. A version of this post was presented at the 2023 Law and Society Association of Australia and New Zealand conference, with funding from the GCI Conference Travel Grant.