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Keoghs Insight

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Lauranne Rawcliffe

What is abuse?

Blogs31/05/2019

“Abuse” is a word often used in common language to describe many situations in which any form of harm is caused to another person. However, from a legal perspective the definition of what constitutes abuse in a tort actionable in damages continues to develop.  In order to consider what abuse is, and how the law is likely to respond, it is important to examine how the position has developed over the years.

A historical perspective

Nowadays it can be quite straightforward to identify abuse or inappropriate behaviour.  However, it can be surprising to learn that historically children were often considered to be just as culpable as adults.   For example, it wasn’t until the 1900s that child prostitutes were actually acknowledged as victims, previous developments in sexual abuse dealt solely with acts committed by men on adult females.

There was no recognition that a child could be forced to engage in sexual activity or the different ways that a child may be suffering harm.  Few attempts were made to protect or safeguard children.

The changes in attitudes have been greatly assisted by the availability of better trained police officers and other professionals, as well as the development of legislation such as the Indecency with Children Act 1960, which for the first time saw children as gender-neutral. As the changes in cultural and moral values have progressed there has been an encouragement to disclose sexual abuse, which has been further brought to the surface by developments such as the #MeToo movement which has gained traction within the entertainment industry.

In recent years there have been a number of changes in legislation not only due to developments in society and technology, but also in recognition of new types of abuse:

  • The Protection of Harassment Act 1997: made harassment a criminal offence, although it fails to actually define harassment in the Act
  • The Sexual Offences Act 2003: redefined rape and created the new offence of non-consensual voyeurism
  • The Serious Crime Act 2015: created the new offence of controlling or coercive behaviour in an intimate or family relationship
  • The Modern Slavery Act 2015: created the offence of slavery, servitude and forced or compulsory labour
  • The Voyeurism (Offences) Act 2019 (which came into force on 12 April 2019): created the new offence of “upskirting”.

Physical abuse

Unfortunately physical abuse has been a feature throughout the decades, most notably in care settings and educational establishments when corporal punishment had been prevalent.  Indeed, it remains that an individual may still be prosecuted in the criminal courts in relation to historic physical abuse.  However, in the civil courts, the law in respect of physical abuse has long been established.   Pursuant to the decisions of Irwin J in the St. Aidan’s/St. Vincent’s litigation, in particular his ruling in the case of HC, and the decision of Cockroft J in Hutton v The Catholic Children’s Society & Anor, the courts have considered there to be no reasonable excuse for a delay in a claimant bringing a claim for physical abuse only. 

Irwin J stated that the reason for this is that there is “no significant inhibitory factor produced” by such physical abuse and “excessive punishment could not possibly be thought to carry the same stigma as sexual abuse, or…the same inhibition from reporting, addressing or discussing what took place.”  Notwithstanding the views of Irwin J, proportionality would also be an issue in physical abuse claims as any damages would likely be very modest and the costs of the claim would be far more than any compensation the claimant might expect to receive.

Racial Abuse

Racial abuse is considered to be harassment and an offence of this nature would be punishable under the Protection from Harassment Act 1997 (‘the 1997 Act’). In recent months there have been a number of high-profile racist incidents directed at football players. During a recent Euro 2020 qualifier in Montenegro, black footballers Danny Rose and Raheem Sterling were subjected to repeated racist chants. This has resulted in UEFA stating that Montenegro must play their next game behind closed doors.    

The Professional Footballers’ Association (PFA) recently organised the “Enough Campaign” which encouraged players to take part in a 24-hour boycott of social media in protest of how online racial abuse is dealt with. The scale of racism in football led Danny Rose to make the comment that he “cannot wait to retire” from football because of the racism to which he has been subjected for the whole of his career. 

It remains to be seen how the civil courts will approach non-recent racial abuse claims, and the extent to which the approach will be any different to physical abuse claims and the analysis as to the explanation for the delay in pursuing such claims.

Cyber-bullying/ “Trolling”

Cyber-bullying is any form of bullying which takes place online or through smartphones and tablets. There is no specific legislation that deals with cyber-bullying but it could be covered under the 1997 Act given that the 1997 Act does not specifically define harassment. Cyber-bullying  can consist of a number of things such as offensive, rude, and insulting messages; nasty or humiliating comments on posts, photos and in chat rooms; sending information or photos about another person that is fake, damaging and untrue; impersonation by hacking into someone’s email or social networking account and using that person's online identity to send or post vicious or embarrassing material to/about others; repeatedly sending messages that include threats of harm, harassment, intimidating messages, or engaging in other online activities that make a person afraid for his or her safety. Again, given this is a relatively new and developing area, it remains to be seen how the civil courts would interpret such claims if presented.

Conclusion

What is considered to be abuse for the purposes of a criminal offence has progressed and developed not only in line with the changing values of society but also advances in technology.  For example, this also now includes further specific offences such as voyeurism and “upskirting”.   However it remains to be seen how the civil courts will interpret and apply the law to cases involving allegations which were not previously considered to constitute “abuse”, but may now be considered as such.

For more information, please contact, Lauranne Rawcliffe