Defining ‘Sexual Abuse’ under the

Defining 'Sexual Abuse' under the Civil Liabilities Act: An Opportunity to Consider Our Approach

by Lillian Robb

In March 2020, Herron DCJ handed down his judgment in the case of Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27 (‘Lawrence’). This case required Herron DCJ to enter into a challenging discussion; what distinguishes sexual abuse from physical abuse?

The decision in Lawrence is the first to be handed down in WA since the 2018 amendment of the Limitation Act 2005 (WA) (‘Limitation Act’) to remove the statutory limitation period on historical sexual abuse matters. Mr Lawrence was subject to a number of abuses over a period of many years. Of these, most are clearly and without exception to be considered as ‘sexual abuse’. However, there are two instances that brought into dispute the meaning of ‘child sexual abuse’ and ‘sexual abuse’ for the purposes of the Civil Liability Act 2002 (WA) (‘CLA’).1 The defendant argued that the conduct in both of these instances did not constitute child sexual abuse,2 and in so doing singled them out from the other incidences.3 The recent amendments to the Limitation Act and the CLA are the first stage in implementing legislative reform in WA to reflect the recommendations of the Royal Commission into Institutional Sexual Abuse.4 In this climate, with the door open for further cases, Lawrence presents the food for a timely consideration of how we define ‘sexual abuse’ in the context of civil claims in Western Australia. The jurisprudence that arises will have longstanding impacts on sexual assault cases in WA.

The first incidence in which sexual nature of the abuse was in question involved the following: “[o]n one occasion at Clontarf, then the Plaintiff was about 12, Brother Foley took the Plaintiff to the gym and then made the Plaintiff lift weights while naked with Brother Foley watching”.5 The second is a series of incidents over a period of years during which “Brother Doyle would call the Plaintiff to his office, strip the Plaintiff naked from the waist down, questioned the Plaintiff about whether he had been engaged in sexual activity with other students, and then beat the Plaintiff across his bare backside with a cane whilst rubbing his bare hands