Is the system failing victims in #MeToo historical cases?

In light of the ruling against sexual abuse victim Mariya Taylor, Dr Zoë Prebble questions how limitation periods work in such cases of historical sexual and gendered harm.

Dr Zoë Prebble
Dr Zoë Prebble

This week, High Court Justice Rebecca Edwards ruled that Mariya Taylor, as the unsuccessful party in a civil case, must pay nearly $28,000 in costs to Robert Roper, the man who abused her during the 1980s while both were stationed at the Whenuapai Air Force base.

Justice Edwards ruled last September that although there was sufficient evidence to establish that Roper indeed abused Taylor, the overall case failed because Taylor did not sue until after the statutory limitation period.

Taylor and other of Roper’s survivors of historical sexual violence have experienced this costs award as a shattering blow. They feel re-traumatised and re-victimised by what strikes them as a kind of state-sanctioned vindication of their abuser. Media and social media commentary has been similarly appalled and outraged.

The story is a confronting reminder that survivors of sexual and gendered violence who seek redress through legal processes frequently find this to be a brutalising and unsatisfactory experience. The story of Taylor’s civil case is all the more jarring for appearing now, a couple of years into our collective #MeToo reckoning as more women like Taylor are gaining courage to speak up about historical abuses.

Taylor’s lawyer, Geraldine Whiteford, says that Justice Edwards’ costs decision sets a dangerous precedent, which could create a chilling effect whereby potential claimants may decide it is just not worth the risk to pursue their abusers civilly. Whiteford is right that there may well be a chilling effect. But this week’s ruling is better understood not as a precedent, in the sense of establishing anything new, but as an illustration of a chill that has long been in effect. Justice Edwards is right that as the legislation currently stands, the High Court Rules 2016 narrowly constrain her discretion as to costs. Legally, the starting principle is that the party who fails should pay costs to the successful party.

Potential litigants weigh a number of factors when deciding whether to sue. For a risk-averse potential litigant, the possibility of being saddled with $28,000 in costs on top of their own legal costs could well be too daunting of a risk to bear, regardless of the merits of her case. Had Taylor been a little less brave, she might have decided the bare possibility of losing the case and being ordered to pay costs was too great a risk. But would that have been any more satisfactory of an outcome?

It is this week’s costs award, rather than Taylor’s loss of the case last September, that has generated the most public and media outrage. At one level, this makes sense: the decision strikes many as an outrageous heaping of insults upon injuries. But this week’s decision follows fairly mechanically from the substantive decision in September that Taylor’s case was barred by the limitation period, and that she did not fit within a statutory exception.

Taylor’s lawyers have said she will appeal against Justice Edward’s September finding that Taylor was not sufficiently disabled by her trauma to prevent her from suing within the limitation period. Her appeal may succeed. But Taylor’s case suggests a more fundamental policy question about how limitation periods operate in relation to historical sexual and gendered harms.

Historical sexual and gendered violence claims such as Taylor’s are barred by the Limitation Act 2010, unless a plaintiff can prove she was of “unsound mind” amounting to a disability preventing her from suing within the ordinary limitation period.

Think for a moment about the implications of that test. Today, we understand much more about the range of psychological effects of abuse and trauma than we did in the 1980s. Sometimes, this kind of trauma can indeed affect a victim so profoundly that she is at a personal and psychological level incapable of suing.

But consider an alternative framing: the #MeToo movement has been about highlighting and challenging a political, cultural and legal climate in which victims of abuse have known for years, based on painful experience, that they are unlikely to be believed or to receive legal redress when they report their abuse.

For a victim in the 1980s to have recognised the futility of attempting to sue her abuser is not necessarily evidence of an unsound mind. On the contrary, a decision not to sue might have been a rational response based on empirical observations of how the legal system and society generally receive such claims.

A victim with that kind of reaction would not fit under the current limitation exception. But there is a meaningful sense in which such a victim is indeed hamstrung by circumstances, and disabled from seeking effective legal redress within the limitation period. Should it make a difference that the disability was systemic rather than personal or internal to the victim?

The primary rationale for limitation periods is an evidential concern. The more time that passes after an event, generally the more difficult it becomes to prove that the event happened. Memories fade, witnesses die or relocate, material evidence may be lost or destroyed.

Defendants have a right to mount a full defence and to receive a fair trial. However, these evidential risks did not come to bear in Taylor’s case. Justice Edwards found there was sufficient evidence to establish that the abuse had in fact occurred.

One effect of the #MeToo movement has been that women who have long carried histories of abuse, without believing there could be any redress, are beginning to speak up and to believe that they can demand that the legal system represent their interests. Victims of historical abuse may be beginning to wriggle free from the systemic disability that previously incapacitated them, preventing them from suing.

The Limitation Act does not recognise systemic disability of the kind I have outlined as an exception to limitation periods. But is there a principled reason why it should not?

This article originally appeared on Newsroom.