Distressingly, there have been more media reports about sexual abuse in faith groups this week. The focus this time is on claims being brought by over 20 former Jehovah’s witnesses for sexual abuse which they suffered whilst they were members of the group. A number of successful high-profile claims have been brought against this organisation in the past, and although this is unquestionably heart-breaking, in many religious contexts, it is just fair to acknowledge that most large, well-structured groups or federations have drastically improved their safeguarding policy and procedures over the last two decades. Obviously, whilst this is to be welcomed, campaigners continue to point out areas of concern, and for instance, in the case of the Jehovah’s Witnesses, Labour MP Sarah Champion has flagged up a worrying reluctance to report matters to the police and other external authorities.
A community culture which maintains a stark inside/outside divide, and is actively hostile towards third party intervention, by its very nature places vulnerable people at risk, and in this context, it is most challenging for victims to raise complaints and be heard by those in power, as they are part of an environment where maintaining group-autonomy and avoiding scandal is privileged over the welfare of individuals. It is also often easy for abusers in such settings to escape effective sanction, as the drive to avoid scandal and exposure means that they are frequently allowed to fade quietly away. All too often perpetrators disappear only to resurface and recommence their predation in another location, and consequently, the human costs of not implementing adequate safeguarding measures are incalculable.
So, what redress do victims have when they suffer this kind of harm? In recent years, the law of England and Wales has undergone some dramatic changes in terms of its approach to holding organisations accountable in civil law for the wrong-doing of their representatives, and it is key to appreciate that there are two distinct routes by which this might be achieved: negligence and vicarious liability.
Where negligence applies, the victim must show that the group was at fault for not taking reasonable care. For example, failing to do appropriate background checks on volunteers in positions of trust, especially where they have access to children, or not having procedures in place to ensure that incidents and complaints are adequately addressed, could both give rise to successful claims in negligence. In short, the claimant would be arguing that the carelessness of the organisation caused the harm which they experienced.
In contrast to this, there is a legal mechanism whereby one party is made liable for the torts (civil wrongs) of their representatives, which is known as vicarious liability and operates independently of fault. It does not matter whether the second defendant did everything in their power to guard against the kind of damage which ensued, they will be made liable by virtue of their relationship with the first defendant (i.e. the part who committed the tort, in this case trespass to the person). If this sounds puzzling, it helps to understand that it originated in the context of masters and servants, or in the more modern world, employers and employees. The basic principle was (and essentially still is) that the boss would be liable for what the minions did, although in recent years, it has expanded to include other relationships which the courts have deemed to be “akin” to employment. These include: religious ministers and their faith group, some religious volunteers and their faith group, prisoners and the Ministry of Justice, foster parents and local authorities and some independent contractors and companies which regularly use their services.
Clearly, the list is non-exhaustive, and the borders are not yet firmly staked out, and to make matters more confusing, there is another aspect of vicarious liability which is also expanding into the horizon. When the concept was largely confined to employers and employees, it was a basic principle that it was confined to torts committed “in the course of employment”, as it would be grossly unfair to make an employer pay for anything which an employee got up to during his or her waking life. If the idea is that you are liable for what your minions do, then it is only fair and logical to restrict liability to times when the minion is on the job.
However, where the law became sticky, is the difference between being on the job and doing the job. The original course of employment test required the delinquent worker to be doing his or her job, albeit sometimes in a wrongful way. Nevertheless, in the case of sexual abuse, of course, nobody could ever be said to be acting in the course of employment, and the courts became dissatisfied with this. Rightly or wrongly, judges concluded that it was appropriate to render a “boss” liable, where the minion’s behaviour was “closely connected” with their job, but unfortunately nobody actually has a clue what “closely connected” means in practice, and reading the case law, it is very difficult to reconcile conflicting decisions. The courts have stated explicitly that it isn’t enough to show that the first defendant’s role presented them with an opportunity to commit the tort in question, the link has to be more robust than that. Yet there are a number of reported cases when there really doesn’t appear to have been anything more tangible than opportunity involved, and as a result, there are legitimate concerns that litigation is becoming a game of roulette in this regard, with vicarious liability attaching according to whether the ball lands on red or black.
Needless to say, such uncertainly isn’t in anybody’s best interests, and is pretty difficult to reconcile with the rule of law. That though is really a discussion for another time. The point which currently concerns us, is that faith groups will often be accountable for the abusive behaviour of individuals representing them, regardless of fault, and that they will certainly be liable (by means of negligence) where their carelessness contributed to abuse occurring.
Of course, it should not be threat of litigation which spurs on religious organisations to put their houses in order, and most groups are anxious to keep everybody safe primarily because they are interested in people’s wellbeing. However, the potential exposure if they are not successful ought to be an additional catalyst. Civil law not only provides compensation for the wronged, vital though that function is, it also helps to set out the parameters within which everyone within society has to operate. The unmistakeable message be sent at present is that faith groups must operate in ways which protect their members, visitors and even floaters on the fringe, and unquestionably, if they fail to do this, they will be held accountable.
Related Articles
Jehovah’s Witnesses Sued Over Historical Sex Abuse BBC News (4/2/20)
A Secret Database of Child-Abuse: A former Jehovah’s Witness is using stolen documents to expose allegations that the religion has kept hidden for decades The Atlantic (5/4/19)
A v Trustees of the Watchtower Bible and Tract Society [2015] EWHC 1722 (QB)
