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08

Dec

2022

Making monetary redress work

Written by: Stephen Winter

 
 

There are hundreds of thousands of survivors of abuse in care around the world. Many survivors experienced grievous physical, emotional, or sexual abuse or severe neglect while in out-of-home care. Their experiences of systemically injurious orphanages, residential schools, and foster care are gaining popular attention through films such as Spotlight (2015), theater works such as Reckoning (2016), and books such as The Lost Child of Philomena Lee (2010). Those works, and others, explore the injuries suffered by survivors, their families, and their communities. They also address the long-term and profound damage they endure.

Seeking remedies, many survivors have (and are) pursuing civil litigation against institutions responsible for their injuries. However, litigation has proved procedurally inadequate. On the one hand, the large number of claims threatens to overwhelm judicial systems. On the other hand, the poor quality of the evidence, and a host of technical defenses, raise insuperable obstacles to fair settlements. Many survivors live highly marginalized lives: the abuse and neglect they experienced in care cause them to struggle with homelessness, unemployment, addiction, and mental health problems. The damage they suffer has left many survivors ill-equipped to pursue legal claims against powerful institutions.

In light of these concerns, monetary redress programs are now a preferred policy response to manage survivors’ claims. Redress programs provide payments to survivors, settling the remedial obligations of offending institutions using procedures that are cheaper, faster, and easier for survivors. Often administered by states, these programs involve the offending institution accepting liability for claims that meet certain conditions and then asking survivors to complete an application process to establish that the survivor-applicant meets those conditions.

A fundamental tension pervades these programs. Survivors have a right to a remedy, but satisfying their rights often entails further harm to them. In the worst cases, the experience of applying for redress retraumatizes survivors. A critical literature has developed criticizing individual redress programs; however, those works rarely offer better policy alternatives. States and other institutions are spending billions on redress programs without knowing how to optimize the benefits they deliver and how to mitigate the evils they inflict.

Monetary Redress for Abuse in State Care examines what does and does not work. Focusing on state-run programs, I build on a robust empirical foundation of stakeholder interviews and documentary research to develop in-depth operation-level accounts of redress programs in Australia, Canada, Ireland, and Aotearoa New Zealand.

I then analyze that data using a comparative framework. That analysis foregrounds the experiences of survivors; however, it also explores why states operate redress programs and what impediments they encounter. State redress is a form of public policy. Therefore, policy analysis must attend to the nature of, and limits to, the state as an agent.

Monetary redress always involves trade-offs. A redress process can be faster and less costly if it pays all survivors the same amount. That is because tailoring the value of payments to the severity of each survivor’s injury requires getting information specific to each survivor. When programs collect more information about survivors, their collection procedures impose costs on survivors. Moreover, programs take longer to process claims when they amass more information. But cost-minimization and speed are not the only relevant values. Some survivors want to receive a payment that recognizes their unique experiences. And some want to use the redress program to “speak truth to power” and put their experiences on record.

Because different survivors will differ on how they prefer to make such trade-offs, I argue that redress programs should enable survivors to choose the pathway(s) to redress that best suit them. Appropriately supported survivors will best know what is best for them. Also, respecting survivors means respecting their agency. Respecting survivors’ agency requires flexible redress programs that provide survivors with different paths that meet different goals and involve different costs.

That participatory emphasis also applies to policymaking. Policymaking decisions are likely to be better made by those most closely affected. Care-experienced survivors may anticipate the issues that other survivors will confront in accessing redress and contribute to resolving problems as they arise. Moreover, the participation of survivors in redress design and delivery can make the redress program more credible to others.

My book advocates for flexible and participatory policy design. But it also warns against the dangers involved. It can be challenging for survivors to participate in complex programs without solid legal, psychological, archival, and logistical support. However, professionals consume resources and, too often, their interests compete with or displace those of survivors.

My book is gives examples of those difficulties and how they might be mitigated. To provide one illustration, in Canada, disreputable lawyers systemically took advantage of their clients, defrauding both survivors and the Canadian state. However, Australian practice offers a superior alternative. The Australian government funds a community service provider, ‘knowmore’, to provide trauma-informed legal advice to survivors. Providing high-quality service, knowmore is cheaper than the traditional user-pays model.

It is easy to judge monetary redress programs by how much they pay survivors. But what survivors need to do to get their money, and how they are treated in the process, are no less important. Monetary Redress for Abuse in State Care embraces practical, operational-level matters, including staffing, funding, and assessment procedures. Such mundane matters shape survivors’ experiences of these programs and the redress outcomes that states achieve.

In conclusion, monetary redress policy is a relatively new field. Better redress programs need to develop optimizing strategies. That requires policymakers to know what operational challenges they will confront and how best to negotiate them. Examines redress from a public policy perspective and offers recommendations designed to help policymakers, survivors, and other stakeholders.

Monetary Redress for Abuse in State Care by Stephen Winter

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About the Author: Stephen Winter

Stephen Winter is an Associate Professor in Political Theory at the University of Auckland and a leading expert in state redress programmes. He has previously published Transitional Justice in Established Democracies: A Political Theory (2014), and Magna Carta and New Zealand: History Politics and Law in Aotearoa (co-edited, 2017)....

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