Can I make an abuse claim if my abuser is deceased?

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We are often asked by our clients if whether the fact that the person who abused them is now deceased will prevent them from pursuing a claim for compensation.

The short answer is no, but it does raise additional issues which need to be addressed or may require further evidence. We thought it would be useful to set out the legal position and explain when a deceased abuser may be a problem and how we can overcome this.

Abuser is deceased

Why is this often an issue in sexual abuse and assault cases?

It is very common for those who have suffered abuse and assaults, to take many years to be able to disclose the abuse or take any step to report to the police or to seek legal advice.

This is particularly the case where abuse happens as a child. For a whole number of reasons, the abuse is often buried and it is not uncommon for the lasting psychological effects of the abuse to resurface many years later.

As lawyers who deal with these claims, it is fair to say that in the majority of cases, the claim is already many years out of time.

What does ‘out of time mean’?

This basically means that the time limit for pursuing your claim has passed. This is known legally as the Limitation Period. In these types of cases there is a three-year time limit. Court proceedings must be issued within three years of the date of the incident(s).

If the incidents happened when you were a child, this time limit does not start to run until you reach age 18. After this three years had passed your claim will be ‘out of time’.

Bringing and out of time claim

If a claim is brought out of time, it means that your opponent can raise this in their defence. The Court does have a discretion to allow you to bring your claim out of time, but it is for you to persuade the court to exercise that discretion in your favour and to allow your claim to proceed.

There are a list of factors that the court will consider when deciding whether your claim can proceed, but generally the court needs to be satisfied that there can still be a fair trial of the issues and that the delay has not significantly affected its ability to decide the case fairly.

When might it still be possible to bring a claim where my abuser is deceased?

The main problem when the abuser is deceased is the fact that they are not able to answer the allegations and therefore your opponent will have lost the opportunity to put the allegation to the person who abused you, or to call them as a witness to try and rebut the allegations.

There are many circumstances were other evidence may be available, and we can argue that the fact that the abuser is deceased does not matter. These include, but are not limited to:

Where the abuser was convicted of offences against you when they were alive. In this case, you can rely on the conviction and the abuse will not need to be proved again.
If there has been a finding of fact by the abuser’s employer or other agency or organisation. So for example, if a teacher who abuses a pupil is found guilty of misconduct and dismissed from their position because of the abuse, you can rely on these findings in support our your claim.
If the abuser admitted the abuse in other circumstances before they died, such as in a written letter to a family member, or even the person they abused. If we have or can obtain a copy of the document that contains the admission, then this will hold great weight with the court.
If there are witnesses to the abuse itself. If someone witnessed you being abused and is prepared to give evidence in court, this can also be argued to overcome the fact that the abuser themselves is now deceased.
Where the abuser was convicted of similar offences against others. You will still need to prove the abuse in so far as it happened to you, but the fact that others were abused in a similar way may support your account.

There may be other circumstances and other evidence which can assist when we are faced with a claim where the abuser has passed away, even if it doesn’t fall into one of the above situations.

You should therefore not be deterred from seeking legal advice and should do so without delay where your case is already many years ‘out of time’.