Personal Injury

Child sexual abuse is not a marginal or isolated phenomenon as many would like to imagine – it is an ordinary feature of social life for children in Australia. The Australian Child Maltreatment Study elucidates this tragedy vociferously, finding that nearly one-third of Australians report some form of sexual abuse in childhood. In any other context, this number would be a cause for immediate national concern – complete with a media frenzy- and a radical reconfiguration of legal and institutional frameworks.

Yet ostensibly, few matters as pervasive are so poorly managed, and so inconspicuous to public sensibilities. For every hundred children subjected to sexual abuse, only a fraction will ever disclose; of those, fewer will see their case investigated; and of those, fewer still will see charges laid, let alone a conviction secured. The recalcitrance of the criminal justice system is mirrored in the civil context, where redress schemes and claims for compensation capture only a negligible proportion of the survivor population.

From procedural hurdles to evidentiary challenges, the factors perpetuating this contradiction are complex and multifaceted. However, they all arise with an institutional malaise – an unresponsive culture that is reluctant to confront abuses of power and more concerned with symbolic recognition rather than enacting structural change.

The Prevalence of Child Sex Abuse  

As alluded to, the Australian Child Maltreatment Study paints a harrowing picture.   Among its key findings;

• 5% of respondents reported experiencing child sexual abuse (contact or non-contact) — more than one in four Australians.
• In that same survey, 1 in 12 participants (8.7%) reported having endured forced sex (i.e., rape) during childhood.
• The median number of sexual abuse incidents for those affected was 3.5 episodes, though many experienced far more (i.e. chronic victimisation).
• Sexual abuse rarely existed in isolation: many survivors also endured emotional abuse, exposure to domestic violence, and/or physical abuse.

These figures should shock those who doubt how widespread abuse is – unequivocally dispelling the notion that child sex abuse is aberrational. And yet, the reception to the report was surprisingly muted. Once the figures were reported in the media and absorbed into the evanescent news cycle, the issue was seemingly disregarded. There was little in the way of political urgency, and the institutional and legal reform that one would expect has yet to materialise. In its pervasiveness, the abuse has ostensibly become background noise. As a result, survivors have been rendered invisible and are tacitly encouraged to internalise their experiences as inevitable rather than criminal.

Reconciling Prevalence with Injustice

If abuse is so common, it begs the question, why is justice so seldom delivered? The answer lies in a confluence of factors; each rooted in its own legal, institutional and cultural context.

Criminal Justice

The prosecution of child sexual abuse is complicated by inherent challenges. In jurisdictions where historic abuse claims are time-barred, survivors who take years to disclose are automatically excluded. Even in states that have abolished or extended limitation periods, there are various evidentiary challenges. Criminal trials demand proof beyond a reasonable doubt – an often-insurmountable standard in cases where memories fade, records are lost, witnesses die or disappear, and physical evidence is scant or absent. Many perpetrators also operate behind closed doors, meaning that the victim’s memory is the only evidence to rely on. Over time, that memory can become fragmented or contested in cross-examination.

Whilst it is convenient and legally accurate to frame the paucity of prosecution as a by-product of evidentiary limits and procedural hurdles, there are other pertinent factors at play. For starters, the high standard of proof is often met by an equally low willingness to prosecute. Police and prosecutors exercise vast discretion in deciding which cases to pursue, and the calculus is often pragmatic rather than principled. As a result, unwinnable cases are looked upon unfavourably, and survivors are directed elsewhere.

The perceived apathy of law enforcement is exacerbated by the structural dynamics of institutional abuse. Where the offender is embedded in a church, school, sporting club, or government program, disclosure threatens not only an individual but an entire organisation. As a result, institutions have insulated themselves from risk, whether through the destruction of records, legal tactics, or outright obstruction. Survivors, already reluctant to report, not only have to confront their abuser, but also the institutional interests around them.

Unsurprisingly, out of the vast population of survivors, only a few enter the criminal system, and when they do, many are surrendered by evidentiary burdens. Convictions, when they occur, are celebrated – but unfortunately, they are the exception to a broader pattern of neglect and injustice.

Civil Justice

In theory, civil law should offer more accessible relief, and for the most part it does. The standard of proof is lower, the remedies are compensatory and survivors are given more agency. However, like the criminal system, it is also beleaguered by paucity.

By nature, litigation is highly costly. Survivors are burdened with the costs of medical evidence, expert testimony and prolonged adversarial proceedings. Even with the removal of limitation periods for child sexual abuse claims, claims are constrained by the same evidentiary hurdles symptomatic of the criminal system as well as additional structural obstacles. Institutions resist disclosure, invoke procedural technicalities and employ highly aggressive legal strategies to drain time and resources. Unable to compete with deep pockets and specialist counsel, survivors are forced into settlements that fall well below what they deserve whilst institutions circumvent liability and public accountability.

The National Redress Scheme, established in the wake of the Royal Commission, though symbolically important, has been substantively disappointing. Payments are capped at levels that are incongruent with the harm suffered, the process is overly complex, and many survivors are excluded altogether due to eligibility restrictions. Other than symbolic recognition, the scheme does little to deliver comprehensive justice – rather, it is a way for institutions and governments to draw a line under past abuses without confronting the full financial or reputational cost.

Institutional Factors

For survivors, the legal obstacles to justice are compounded by the institutions that facilitate their abuse.  Churches, schools and state bodies are not passive actors – they are independent entities with reputations, assets and legacies. As a result, their response to allegations of abuse is typically characterised by self-preservation rather than accountability.

The Royal Commission into Institutional Child Sexual Abuse exposed years of cover-ups, non-disclosure agreements and legal strategies designed by institutions to preserve their reputation at the expense of child safety. Nearly a decade later, these patterns persist. Many institutions prefer to contain liability rather than face reputational reckoning and often lobby vigorously to limit claims or suppress disclosure.

Even when matters come before the court, the judiciary has a proclivity to preserve the status quo and an unwillingness to push boundaries. In some instances, it has even acted so that institutions are able to carve out loopholes in the law to evade liability. The court ruled in Bird v DP, for example, that churches cannot always be held liable for the actions of priests because they are not employees.

Governments are also complicit in preserving the structural dynamics that institutions exploit. Although they may gesture publicly for survivor support, they legislate conservatively and act to insulate institutions against open-ended exposure. The National Redress Scheme perfectly encapsulates this duality. Whilst it acknowledges the harm suffered by survivors, it does so on terms carefully construed to limit state and institutional liability. When it comes to structural reforms, governments are resistant and increasingly beholden to the interests of institutional stakeholders

The Cost of Injustice  

The failure to deliver justice resonates through individual lives and society. Survivors are forced to live with the knowledge that their suffering is statistically common but legally inconsequential.  The absence of accountability compounds trauma, perpetuates stigma and undermines public trust in the legal system.

When abuse is so pervasive yet seldom punished, it reinforces the notion that institutional stability and self-preservation have primacy over individual dignity and truth. Survivors who seek redress but are denied, delayed or dismissed often endure re-traumatisation as they are sent the message that they are powerless in the face of abuse.

Without redress, victims may struggle with mental health, substance misuse, fractured relationships, and child welfare challenges, perpetuating cycles of harm. For example, as a part of a survey conducted by the ACMS, it was found that 48% of those who experienced childhood maltreatment met criteria for one of four mental health disorders, compared with 21% for those who did not.

At a societal level, the failure to prosecute or compensate deprives us of deterrence. Institutions that face little risk of exposure or liability have little incentive to reform meaningfully. The cycle repeats, survivors accumulate, and the collective cost – in healthcare, social services, intergenerational harm – becomes staggering.

Pathways to Narrowing the Gap

Clearly, there is an enormous gap between the prevalence of child sex abuse and the means for justice. In order to close it targeted reform needs to be equally as ambitious. Based on expert insight, there are several avenues available, including;

• Overcoming evidentiary burdens: Courts must adapt to the realities of child sexual abuse, recognising the dynamics of delayed disclosure and the absence of forensic evidence. Trauma-informed procedures and judicial education are crucial.
• Ameliorating civil processes: Cost protections for survivors, streamlined discovery processes, and a reversal of evidentiary burdens in institutional cases would rebalance the court process.
• Institutional transparency: Statutory obligations to preserve and disclose records, coupled with punitive sanctions for concealment, would reduce institutional obstruction.
• Revaluating the Redress Scheme: The National Redress Scheme requires recalibration, including higher caps, broader eligibility, and survivor-centred processes. Anything less renders it a symbolic recognition rather than a justice mechanism.
• Political courage: Above all, governments must resist the lobbying of institutions and accept that genuine accountability is financially, reputationally, and politically costly.

Looking Ahead

All considered, the ACMS report makes clear that child sexual abuse is no longer a marginal aberration but a pervasive issue within our society. Despite this, the means of justice, both civil and criminal, do not view it in the same way. Survivors deserve more than symbolic acknowledgment – they deserve a legal system that recognises their suffering not as background noise but as a call to action. Until meaningful reform confronts this, then prevalence will continue to outpace justice.