The Irish Times – Thursday, March 18, 2010
A gagging clause which kills all discussion of the process of compensation by the redress board adds to the church’s culture of secrecy
THE TRUTH, they say, will set you free. The test of a true democracy is to be found in how it treats its weakest and most vulnerable members.
The depravity, violence, emotional and psychological abuse uncovered in the decade-long Child Abuse Commission Inquiry into residential institutions were inflicted on some of the weakest and most vulnerable members in society – isolated children without a home.
Following the 1999 very public apology by the then Taoiseach, Bertie Ahern, the Residential Institutions Redress Board was set up under laws passed in 2002, charged with compensating those who had suffered physical, sexual and emotional abuse in childcare institutions subject to State regulation.
While the debate has focused on various aspects of the redress scheme, it has been to the exclusion of an aspect with implications for a representative democracy: the so-called “gagging clause”. As part of the compensation award, this confidentiality clause bans those who receive redress from talking about their experience of the scheme or from divulging how much compensation they were awarded. While survivors can discuss publicly details of their abuse in institutions, they are rendered voiceless when it comes to their stories of redress.
The penalty for breaking the harsh confidentiality clause is a fine of €3,000 or six months in jail on summary conviction in the District Court, or €25,000 or two years in jail on indictment. As abuse survivor Christine Buckley of the Aislinn Centre, put it: “A person breaking the ‘gagging order’ could be fined more than they even received from the redress board . . . tellingly this means that speaking about your abuse in the institutions is legally worse than being raped and starved and enslaved!”
Understandably many survivors of institutional abuse see the confidentiality clause as a step back into the bad old days where secrecy and concealment were the friends of child abusers. These survivors never really enjoyed a right of privacy when, as young people, they were interfered with, exposed in secrecy, time and time again. By making secrecy a condition upon payment, the very culture of concealment which has enabled these issues to remain hidden for decades is preserved and maintained.
Why the secrecy? Why the threat of imprisonment if people speak about their experience at the redress board? The nature of the redress scheme is designed to avoid the kind of cross-examination techniques used in civil and criminal courts where allegations are heard in an adversarial context, victims get to confront the perpetrators, and where allegations are dealt with by the investigation committee equipped with the relevant powers to pursue an investigation of those allegations.
The burden of proof is lower than the “balance of probability” test used in civil courts, and the redress board cannot make a finding of fact relating to fault or criminal liability on the part of those involved in the running of these institutions. Claimants must prove only that they have suffered physical or psychological injuries consistent with abuse.
Some of the thinking behind the prohibition on disclosure of information is the desire to protect not only the interests of those making allegations, but also the interest of those against whom allegations are made, since they do not have an opportunity to contest those allegations. Arguably the redress scheme would probably never have got off the ground without the clause.
Thousands of victims of abuse looked to the redress board for ultimate vindication of the truth of the trauma they suffered as children. Undoubtedly the confidentiality of those who have been abused needs to be protected. But if the survivors themselves, at the end of redress, want to talk about it, want to advocate and comment on their case, how it was handled and lessons learnt, is there a rational reason why they shouldn’t be able to speak publicly? Which useful public interest is being served by imposing such a ban?
The board’s proceedings were often felt to belittle and demean those survivors who were brave enough to tell of their horrific abuse, according to survivors from various interest groups. But this aspect cannot be discussed because of a penal regime of secrecy which forbids survivors from speaking freely about their experience with the redress board, or advocating or commenting on their case.
A strange anomaly is then created whereby those who perpetrated abuse remain entirely free to advocate, while survivors who courageously went before the redress board are limited in their right to speak publicly on the process. It is only after many years of silent suffering, when nobody would listen, that the truth is beginning to emerge. It is this truth which is fundamental in creating a narrative which acknowledges what happened so that society can recognise and learn from past injustices.
Some of those who appeared before the redress board wish to write plays and poems about their experience of both abuse and redress, while others want to carry out academic research into their experience. But they feel they are effectively muzzled by the confidentiality clause. Given that redress is a major part of their truth, isn’t it reasonable they should have the right to tell their story which is in itself an important act of empowerment?
By encouraging a silencing ritual which further humiliates the victim, and continues a regime of concealment, intimidation and oppression, how can the existence of such deterrents be seen as anything other than damaging to the truth-telling process?
Ambiguity surrounding the interpretation of the prohibition on disclosure of information for those who accepted awards means those survivors are often unsure of exactly what is permissible in discussion in the public domain and what is off-limits. It’s this very confusion over the scope of what’s allowable in theory versus practice which usually serves to create an environment of fear where survivors are afraid to talk at all, according to Dr Geraldine Moane, senior lecturer at UCD’s school of psychology.
Such self-imposed censorship will likely have the effect of making one complicit with one’s subordination where silencing is the powerful tool to reinforce subordination. By keeping the victim silent, the survivors are kept controlled.
Given the enormity of distress that gagging clauses have caused several survivors of abuse who accepted awards, you have to wonder why it has not received more debate and challenge. How appropriate was this aspect of the scheme? It is one of the critical issues survivors want addressed, and which was included in Labour’s Private Members’ Bill published last June.
Considering that one of the underlying objectives of the redress board was to bring into the public domain the issue of child abuse in institutional homes, it does not seem consistent or reasonable that people who wish to speak about what went on during the redress process are prohibited from doing so. Surely the prospect of convicting a survivor for speaking out in breach of the gagging order goes against the very nature of open and transparent justice?
If the matter of survivors who accepted awards and breached confidentiality clauses were to be decided by a court, it is unlikely the court would enforce the clause given that this would go against the thrust of open and transparent justice. A potential public outcry might well be another protection mechanism survivors could rely on should they opt to publicise their experiences with the redress system. But having suffered in silence for years, is it fair that survivors are now reliant on public outrage to guarantee them space to discuss their experience with the redress board?
Ultimately, the redress scheme is part of the past that we have to put right before we can truly say that we have done right by the weakest and most vulnerable members in our democracy. By tolerating disincentives for ordinary people to come forward and tell the truth about our past, can this chapter of our national tragedy be truly transformative and be seen to be linked to social, political and legal redress?
Time and time again, it is expressed that “people” want to support victims of institutional child abuse, hear what they have to say, and see the right thing done by these people. If the former taoiseach’s apology for the country’s silence, our failure to hear, our failure to listen to our weakest and most vulnerable members is to ring true, isn’t it time we let survivors tell the whole story of their abuse and redress?
Sharon Commins was an aid worker for the charity Goal when she and a colleague, Hilda Kawuki, were kidnapped in Darfur last year. They were held for over 100 days before being freed last October