I recently represented a client in his claim for the abuse he had suffered at the hands of his primary school head teacher. His main objective in bringing the claim was to seek closure; he needed acknowledgement that what had happened to him was wrong and this was more important to him than any compensation he may recover. To this end, he sought an apology from the defendant. However, the defendant’s solicitors rejected this request on the basis that it was neither a legal requirement nor a requirement of the civil claim. Instead, they increased the settlement figure by £5,000. Whilst the claim was successful, the outcome left my client somewhat deflated. This led me to consider the value of an apology to victims of child abuse and the reasons for the defendants’ continuing reluctance to comply with a request for an apology in these cases.
The importance of an apology is well recognised in philosophy and religion, and apologies have always played a vital role in social discourse. There is a general societal expectation that the wrongdoer should, at the very least, apologise to those who are harmed by his actions and a failure to apologise is objectively insulting and disrespectful and can antagonise the victim. This exchange of harm followed by an apology takes place on a daily basis, from playgrounds to world affairs. World leaders, politicians, sports heroes, actors and other celebrities often offer apologies for various wrongs, recognising that people value remorse and apology because they heal psychological wounds and reconcile damaged relationships. As such, apologies are concerned not just with individual dispositions but they also reaffirm societal norms.
Strong emotions are often involved in child abuse claims because of the nature of the victims’ injuries; they have experienced a violation of their dignity and betrayal of trust, which leads to complex emotional and psychological injuries. As such, they are driven more by the need to heal than financial needs because, as the influential British writer G K Chesterton noted, “the injured party does not want to be compensated because he has been wronged; he wants to be healed because he has been hurt”. Monetary damages that are awarded in child abuse claims can compensate victims for tangible losses such as loss of income and treatment costs but they cannot redress the emotional and psychological harm caused as result of the abuse; apologies, however, provide moral recompense by addressing the very personal nature of the harm suffered by the victims.
An apology can play an invaluable role in the healing process for victims by responding to their psychological needs; whilst it cannot change the past it can affect perceptions of the past and help ameliorate the future. An apology can restore the victims’ dignity by validating their experience and confirming that they did not do anything wrong. Consequently, the shame they felt as a result of the abuse can be transferred to the abuser.
As well as benefitting the victims, an apology can also be beneficial to defendants; courts treat apologies favourably and it can be a mitigating factor in assessing the level of damages to be awarded. It can play an important role in facilitating settlement by influencing settlement negotiations and victims’ willingness to accept settlement. This in turn can minimise the costs of litigation. As Stephen Goldberg et al point out “the first lesson of dispute resolution that many of us learn as children is the importance of apologising” and highlight further that “many mediators have had one or more experiences in which an apology was the key to a settlement that might otherwise not have been attainable”.
In some cases, an apology can even prevent litigation. A study in relation to clinical negligence claims found that 37% of claimants who brought claims against their doctors would not have done so if they had received an apology and an explanation for their injury.
Furthermore, as an apology is a moral act and an act of good conscience which demonstrates respect for the victims, defendants can also improve their reputations through an apology. This objective has certainly prompted religious institutions to proffer public apologies for actions that damaged their reputations; the most recent of these being issued by the Church of England for abuse in the Diocese of Chichester.
The potential that apologies have as a reparatory function for victims and for contributing to the resolution of legal disputes is, at present, overshadowed by the defendants’ unfounded preoccupation with fears that an apology will lead to an adverse liability determination. All solicitors want to protect their clients’ interests and therefore, defendant solicitors discourage their clients from apologising in case they incriminate themselves and the courts interpret their apology as an admission of liability. However, whether an apology will have any persuasive force will depend, ultimately, on what is said and whether this helps to establish any of the elements of the case that must be proven. I cannot see how an apology on its own can sufficiently determine liability; even in the presence of an apology the claimant will still have to satisfy the burden of proof and the court will need to look at all the facts of the case and review the strength of the evidence in the case as a whole. Cases in the United States have highlighted this very point; where apologies were relied on as sole evidence of liability the courts ruled that this evidence was insufficient to prove liability.
Furthermore, the stage at which an apology is requested should also be taken into account. In my experience, claimants usually ask for an apology at the stage where settlement is being considered, by which time the issue of liability has been resolved either way. Even if it has not, one could argue that an offer to pay damages to the claimant is no less reflective of the defendant’s culpability than an apology would be.
Defendants in child abuse claims also argue against giving an apology on the basis that the officials who were responsible at the time when the abuse occurred have long since vacated their offices and they have nothing to apologise for. However, in my opinion, this argument is baseless. The apology, whether at the time or years later, is made by a representative or agent of the offending institution who is not personally implicated in what happened but who, by virtue of the office that he or she represents, has a certain responsibility.
Governments and other public organisations often apologise for historical wrongdoings, where the wrongs were committed by their predecessors. A striking example of this follows from what took place in Canada after the Japanese attack on Pearl Harbour in December 1941. The Allies were concerned about the presence of Japanese in North America, and Canada used the War Measures Act 1914 to take action against Japanese Canadians; thousands of men, women and children of Japanese origin were removed from their homes, held in internment camps and deprived of their property. In the 1970s, the Japanese Canadian community began to seek redress. In September 1988, over 40 years later, the Canadian Government formally apologised for the actions of the past. Prime Minister Brian Mulroney stated “I speak for members on all sides of the House today in offering to Japanese Canadians the formal and sincere apology of this Parliament for those past injustices against them, against their families, against their heritage”.
The importance of this apology to the Japanese Canadians and the role it played in their healing process was captured by the writer Joy Kogawa, who lived in the camps as a child, when he stated “a lot of us felt like we worked hard for the apology…it’s been acknowledged that what the government did was racist, and it was wrong, and it’s been put right; we can now cross over and we can no longer claim we are victims”.
The conclusion that apologies have a positive effect on the settlement of cases has led to the enactment of apology legislation in various jurisdictions around the world, including the United States, Australia and Canada, to primarily address concerns about apologies leading to liability. Such legislation, which encourages apologies, is gaining support as more people recognise the moral, social and legal justifications for apologies and the need to incorporate apologies in certain cases.
In child abuse claims, whether an apology is given rests very much on the moral sensibilities and “goodwill” of the defendants and if the request is denied there is not much that claimants can do to overcome the defendants’ intransigence. This can exacerbate claimants’ feelings of powerlessness, which they would have experienced during the period of abuse itself.
Not every victim feels that an apology is imperative but those who do deserve for their request to be given serious consideration. When faced with such a request, instead of an outright refusal, which compounds victims’ distress, defendants should appreciate the significance of their moral obligation to apologise and carefully contemplate how the apology might influence a variety of decisions and the final outcome.
At present apologies are available as legal remedies in limited situations only, such as cases of discrimination and defamation. Some tribunals can order defendants to apologise, where they find that an apology would be appropriate for a person who has been a victim of discrimination. Section 1.4 of the Pre Action Protocol for Defamation expressly refers to the claimant’s right to an apology by setting out that “there are important features which distinguish defamation claims from other areas of civil litigation and these must be borne in mind… a Claimant will be seeking an immediate correction and/or apology as part of the process of restoring his/her reputation”.
I strongly believe that apologies should also be available as a legal remedy in child abuse claims where, as in cases of discrimination and defamation, the victims are seeking to restore their dignity and validate the hurt caused to their feelings. There is a need for legal reforms in this area and I would advocate that, if a Pre Action Protocol for Child Abuse is enacted, it should contain a similar provision to that contained in the Pre Action Protocol for Defamation, to facilitate the social and therapeutic benefits of an apology to victims of child abuse.
This article was published in the Association of Child Abuse Lawyers’ Newsletter March 2014, Issue No.12