Summary of a Presentation from NAWL’s 14th Biennial Conference
A new development has emerged as adult survivors of child sexual abuse turn to civil litigation as a tool in obtaining redress for their injury: the joinder of the plaintiff’s mother as a defendant, either by the plaintiff herself or by the primary defendant, usually the father or father figure. The mother is, in a sense, a secondary defendant in these cases, since the wrongdoing attributed to her is that she failed to prevent the primary defendant from committing the abuse. These cases raise interesting challenges for tort doctrine. How civil litigation is likely to play out in this context must be analyzed against the backdrop of an understanding of the needs of survivors of child abuse. To this end, we draw on the recent work of the Law Commission in identifying the needs of victims of institutional abuse. However, we should not be too quick to assume that whatever the benefits of litigation for victims of institutional abuse, they will automatically carry over to the context of litigation between family members. The capacity of tort law to play a positive role must be assessed by comparison with other response mechanisms – both familial and governmental – that may be available.
While it may be obvious that greater effort to intervene to prevent violence in the family is the best approach, in the short term, it seems unlikely that state intervention is likely to be improved. Therefore, we can expect more litigation, and must take on the task of working through the available tort arguments for and against liability. We argued that we are only beginning to appreciate the complexities of using tort law standards to assess events within a family. The doctrine of intra-familial immunity has made it unnecessary until recently to confront these complexities. Seeking redress for child sexual abuse through civil litigation requires dealing with the family at its most complex. In this presentation, we explored the resources within the law of negligence for properly contextualizing family relationships, including the conditions of inequality that often characterize relationships between women and their male partners. We concluded that some of this work could be done through the use of the traditional requirement of reasonableness by asking whether the defendant’s conduct was reasonable in the circumstances. Through such contextualization, we may be able to prevent courts from relying on gender stereotypes in assessing the behaviour of women who are alleged to have failed to protect their child from abuse. This will require us to develop a richer understanding of the challenges facing women in detecting and responding decisively to evidence of child abuse. To begin this task, we turned to the available empirical literature recounting women’s experiences as mothers of child abuse victims.
It is illuminating to set these issues in the context of other areas of recent tort developments that have used the duty concept to limit tort liability in particular areas of activity or with respect to particular kinds of damage. In recent years, courts have appeared open to the possibility of recovery in areas traditionally not covered by tort liability, such as negligence causing pure economic loss and negligence by public authorities, only to begin to pull back when faced with some of the complexities of using negligence law in these contexts. More recently, the complexities of inserting negligence standards into the family context were discussed in Dobson v. Dobson [Dobson v. Dobson,  2 S.C.R. 753]. These trends led us to speculate about the feasibility of a revised doctrine of partial intra-familial immunity, under the rubric of determining whether a duty is owed to prevent a third party from committing abuse against one’s child.
Denise Réaume teaches law at the University of Toronto. Her main areas of focus are Torts, Discrimination Law, and Language Rights. Shauna Van Praagh is an associate professor and member of the Institute of Comparative Law at McGill University. She teaches Civil Liability, Children and Law, Social Diversity and Law, and Feminist Legal Theory.