Sex abuse case dismissed for inexcusable delay
HIGH COURT JUDGMENT:II -v- JJ
Neutral Citation IEHC (2012)327
Judgment was delivered on July 5th, 2012, by Mr Justice Gerard Hogan.
The court dismissed proceedings taken by a woman against her brother alleging rape and sexual abuse more than 30 years ago on the grounds of inordinate and inexcusable delay, concluding that the balance of justice required that they should be struck out.
The woman alleged that she was raped and sexually abused by her brother between 1976 and 1980 when she was between eight and 12 and he was aged between 13 and 17. There were four other siblings in the family.
She claimed the abuse occurred in the family home, a modest semi-detached dwelling in a suburban town.
She said she told her father of the abuse, only to be beaten.
She said nothing to anyone else until 2004 when, following an altercation at a family gathering, she blurted it out to two sisters, her mother and a friend.
The brother denied the allegations and said he had broken contact with his sister following the discovery of drugs at her property in 2002.
Following this, he said she told a sister, now deceased, that she would make his life a misery.
When he found she was making these allegations to various family members, he had his solicitor write to her asking her to desist.
She contacted gardaí, who interviewed the brother, but nothing appeared to have resulted from the investigation. The sister then began the proceedings in March 2006 and the brother filed a defence.
Apart from the service of two notices of intention to proceed, nothing further was done and in April this year, the defendant issued a motion seeking to have the proceedings dismissed for want of prosecution and also seeking their dismissal by reason of inordinate and inexcusable delay.
Mr Justice Hogan pointed out that in cases involving allegation of sexual abuse, the courts had acknowledged that considerable latitude must be given to the victims of sexual abuse to commence proceedings in view of the psychological trauma they inevitably suffer.
The Oireachtas had also come to realise this and had provided in the Statute of Limitations Act 2000 for such victims to seek to extend the time available.
However, there were also constitutional and EHRC obligations to ensure litigation was speedily resolved and a person’s right to their good name vindicated.
In relation to delay, it was impossible to deny that it had been inordinate in this case, as 26 years had elapsed since the end of the alleged abuse and the commencement of the proceedings. The question of whether it was inexcusable then arose.
An affidavit had been filed by a psychiatrist that the woman could not have proceeded before October 2004 because of her distress. However, by late 2004 she had repeated her allegations to various members of her family.
Given that she had waited so long before starting proceedings, she was under a particular obligation to process them speedily, especially as the defendant’s constitutional right to his good name was impugned.
The court was told that in 2008, the woman’s child was very seriously ill and this demanded her full-time attention for the following four years.
However, Mr Justice Hogan said that while her preoccupation with the plight of her child was completely understandable, she was not objectively entitled to allow the claim to just hang over the defendant.
“One cannot make an allegation of this seriousness against another family member for the first time after an interval of 24 years and then take eight years to prosecute the proceedings.”
He concluded that the delay was inexcusable. He also said the balance of justice required the claim to be dismissed, as the plaintiff’s claim largely rested on bald assertion.
She had given virtually no details of how and when the events occurred and, without such details, the defendant could not hope to defend the claim beyond denying it.
A claim of this kind rested completely on one person’s word against another’s concerning events which occurred between 32 and 36 years ago. Two potential witnesses had recently died.
In all these circumstances, he said the delay here was inherently prejudicial and the balance of justice required they be struck out.
The full judgment is on courts.ie