Sir, - As Carol Coulter and Catherine Cleary point out regarding the McColgan settlement over allegations of negligence against the North Western Health Board and a general practitioner for failure to respond appropriately to their complaints of childhood abuse (The Irish Times, January 24th), a number of legal issues remain. One is the unconscionable hurdle any survivor of child sexual abuse faces a result of the inappropriate legislative time bar on initiating proceedings.
Proceedings for negligence must start within three years of the cause of action or within three years of a plaintiff discovering that he or she has been injured significantly by an action attributable to a known defendant. A minor has a further three years from adulthood. The limit can be extended if at the time the individual was under a "disability", which includes being of "unsound mind".
Sophia McColgan first made a complaint of sexual abuse to the Gardai in 1993, when aged 23. She began proceedings in 1997, nine years into adulthood.
The defendants said that her claim was time-barred because it fell outside the three years. Her lawyers understandably responded by invoking the `'disability" exception. The defendants countered that her achievement of a degree and a job undermined this assertion. Expert evidence identified the complex psychological coping mechanisms of survivors of child sexual abuse. The result: a survivor of child sexual abuse faces a potentially painful and stigmatising dispute over the application of antiquated legal criteria.
While time limits as a general rule serve the aims of prompt proceedings, preserving evidence, and protecting defendants from stale claims, the current time limit and exception are inappropriate in the context of child sexual abuse.
The legislation does not account for the actual difficulties faced by victims. Some victims hide memories or dissociate from their experiences. They may appear to manage satisfactorily when their coping strategies actually avoid confronting the reality of the abuse and coming to terms with it. A victim's fear or anxiety may preclude confronting the perpetrator. Other effects of the abuse, such as depression or alcoholism, may prevent him or her from starting proceedings.
The current legislation can be amended to take account of these problems. One option is a specific exception for victims of child sexual abuse, as applies in almost half of the states in the US. A number of states allow a plaintiff to start a claim within a fixed period, variously five to 17 years. A preferable approach would be to adopt the position in Nevada where there is no time-bar to adult survivors of sexual abuse when there is a clear and convincing evidence of abuse.
Such an amendment would clearly reinforce the State's response to child sexual abuse, better address the psychological realities for victims and, therefore, improve the prospects of achieving justice. - Yours, etc.,
Eglantine Avenue, Belfast.