Redressing or Excusing the Past? The Evaluation of Sexual Child Abuse in the Swedish Redress Scheme for Historical Abuse in Out-of-Home Care

Abstract

This chapter addresses how adult victims of historical institutional child abuse have been treated in the Swedish state’s financial redress scheme. It demonstrates how the experiences of child abuse in welfare institutions materialize in new experiences of the welfare state when the state decides to acknowledge and offer redress to its historically abused citizens. It is shown how the Swedish state’s redress scheme shifted away from an explicit aim to acknowledge the victims’ unjustifiable suffering to the limited ways in which the state could be considered responsible for past harms. As a case, the chapter scrutinizes which details were pivotal for why victims of child sexual abuse in out-of-home care did not receive the financial redress as adjudicated by a temporary redress board. The chapter highlights how it proved difficult to combine an acknowledgement of the victims’ experiences of abuse with an assessment of the responsibility of the state. Furthermore, it demonstrates how contemporary tort law came to influence the assessment of the historical redress claims and set the standards for who received financial redress and who did not. This resulted in renewed experiences of the lived welfare institution caused by a “non-apology” from the welfare state.

Introduction

Over the last few decades, experiences of welfare institutions have emerged on the political agenda. Experiences can be understood as lived or remembered events that happened to people, but also as the “culturally and situationally bound social process” of sharing and mediating experiences to wider communities.¹ Through such social processes, scandals of historical or non-recent child abuse in various institutional settings have become known to the public, and this has led to demands for investigations, reparation, and redress. It is a result of victim-based activism that has pushed for justice, redress, and recognition of the child abuse that has thrived in residential institutions, foster homes, faith-based institutions (churches), schools, and other extrafamilial institutions.² The political response in many countries has been to establish inquiries to investigate the alleged abuse by collecting testimonies from adult care leavers. Since the 1990s, inquiries into historical child abuse have been launched in more than 20 jurisdictions, and tens of thousands of victims or survivors have testified before them.³ In the Nordic countries alone, 20 national or regional inquiry reports were published between 2003 and 2016.⁴ In these reports, adult survivors broke the silence and taboo to speak about child abuse, and this happened in a context in which their experiences were given new meanings. Rather than being fragmented individual accounts of more or less disrupted memories, experiences became narrated in relation to a public discourse on historical child abuse, resulting in a collective political force.⁵ As a result, adults have come forward as child abuse victims, positioning themselves as people with experience of institutional child abuse. The child category, which is usually an age-related category, thus became open to people who once were children.⁶

In some countries, the inquiries’ findings have pushed the responsible bodies, whether it be governments, municipalities, or faith-based institutions, to initiate reparation frameworks through official apologies and the establishment of financial redress schemes. Globally, at least 36 redress schemes aimed at compensating victims of historical child abuse had been identified in 14 jurisdictions by 2017, and the number has probably increased since then.⁷ Redress schemes constitute new welfare institutions that people who identify as victims of institutional child abuse meet and experience in their claim for justice. Reparations, such as public apologies and financial redress schemes, ideally have a transformative element in that they can encourage society to acknowledge the wrongs committed and promote state authorities and other bodies to take responsibility for what happened, and through this, promote victim healing. The sheer number of inquiries and redress schemes, as well as their arguably victim-centered focus, is an indication that they are a vital part of the transitional justice frameworks that are underway in established democracies today. However, as McAlinden has outlined, “there are several means by which individuals and collectives can ‘apologise without apologising’.”⁸

In this chapter, we explore how such a “non-apology” can feature in financial redress and how the transformative aspect of a transitional justice framework can vanish during its practical operation. The aim of acknowledging the individual victims’ unjustifiable suffering in order to offer redress was in the Swedish redress scheme juxtaposed with the question of whether caregivers (the representatives of the state) had failed in their responsibilities. This chapter sets out to explore this dual focus of the financial redress institution. As a case study, we look at the Swedish financial redress scheme for victims of historical child abuse in out-of-home care and how this resulted in renewed experiences of the welfare state. Taking sexual abuse as a starting point, we want to demonstrate how such abuse, understood as the worst kind of child abuse, was evaluated within a scheme that at first glance seemed to be inclusive but, during its practical operation, came to be exclusive.

Child Sexual Abuse: The Ultimate Crime Against Childhood

Child sexual abuse has become a major focus in a number of inquiries and redress schemes internationally.⁹ There are several explanations for this, such as the media’s interest in child sexual abuse scandals¹⁰ and the long-standing social activism of victims and survivors forcing the issue onto the political agenda.¹¹ Furthermore, the silence around sexual abuse and sexuality in general has been challenged, and consequently, a language to verbalize what happened to them is now more readily available to victims.¹² Clergy abuse scandals within the Catholic Church have also finally received major attention after decades of cover-ups.¹³ Most importantly, child sexual abuse has come to be seen as the ultimate crime against childhood—a criminal act that deprives the child victim of his/her childhood.¹⁴

The exclusive focus on child sexual abuse within institutional settings in the redress responses in Australia, England, and Wales has been criticized by care-leaver advocates for ignoring the extreme vulnerability of children in care when they were abused and exploited in various ways as laborers in both closed institutions and in foster families.¹⁵ In contrast to schemes focusing exclusively on sexual abuse in institutional settings, the Swedish redress scheme intended for victims of historical child abuse in out-of-home care had, at first glance, a wider remit. It included care leavers who had been in out-of-home care in both institutions and foster homes. Moreover, it was oriented towards severe abuse, which was defined as frequent, “serious violations and repeated abuse or neglect meant to seriously harm the child’s self-esteem”; occasional, “very serious physical abuse”; occasional, “sadistic or torture-like conditions”; and gross sexual abuse.¹⁶ While these definitions include physical and emotional abuse and neglect as well as sexual abuse, the Swedish scheme was guided by criteria that restricted the claimants’ eligibility in other ways. As this chapter will argue, redress schemes that include a plethora of abuse of different characters can also fail to recognize the vulnerability of the child in instances where negotiations about the state’s responsibility overshadow recognition of the child victims’ suffering. As this is a process that involves agents who are not equals, such an approach risks subordinating the interests of the victims to the interests of the state.¹⁷

Money as a Symbol of Recognition and the Emergence of the Swedish Scheme

The financial redress scheme was the final government response to a decade-long process of victims seeking an apology and redress for injustices committed against them as children in public out-of-home care. The process commenced in 2006, when the government established an official inquiry into child abuse and neglect in institutions and foster homes (Sw. Vanvårdsutredningen). During the period 2006–11, this inquiry interviewed 866 care leavers who had been placed in out-of-home care between the 1920s and early 2000s. An official government interim report (based on 404 interviews) released at the end of 2009 contained shocking revelations of abuse and neglect, in which 90 per cent of the interviewees reported various forms of neglect, approximately 50 per cent reported physical abuse with weapons, 75 per cent other kinds of physical abuse, 50 per cent reported that they had been exploited as laborers, and equally as many reported that they had been sexually abused.¹⁸ The interim report prompted the government to respond, and it did so by setting up a parallel inquiry with the task of proposing recommendations for how the state could organize redress for the abused care leavers—the so-called Redress Inquiry (Sw. Upprättelseutredningen).

While this inquiry suggested a commemorative museum exhibition, actions to prevent future abuse and neglect, and an official apology to the collective of care leavers, which was eventually delivered by the chair of the Swedish Parliament in November 2011, the most important and far-reaching recommendation was the financial redress scheme. In the Government Official Report, the Redress Inquiry Commission concluded that victims of historical child abuse would face serious difficulties in achieving justice through civil litigation due to the time-barred statute of limitations. Instead, the inquiry proposed a kind of ex gratia compensation, which should be considered as “recognition by society that the person eligible for compensation had been exposed to unjustifiable suffering and not as compensation for concrete damages.” This recommendation was endorsed by several victim advocacy groups.¹⁹ Money is transformative in character, and as Stephen Winter argues, financial redress “respects the survivor’s agency by providing the means to pursue and obtain a wide range of goods and services. Unlike redress ‘in kind’ or through service provision, money is extremely fungible—putting power into the hands of survivors.”²⁰ Therefore, financial redress is often favored by survivors, and it is also a response promoted by many inquiries.

After heated political debate about whether any financial redress should be issued in Sweden, a temporally enacted piece of legislation to be in effect between 1 January 2013 and 31 December 2014—the Redress Act—was passed by the Swedish Parliament in 2012. The aim of the redress scheme was, precisely as the Redress Inquiry had put it, to symbolically (through money) acknowledge the victims’ unjustifiable suffering in order to offer redress rather than compensate for concrete damages, as in a tort case.²¹ The scheme was constructed as a flat-rate payment in which eligible claimants would receive 250,000 SEK. The payment would symbolize the present society’s sincere apology for, and acknowledgment of, the suffering that was caused to children that were wards of the Swedish state.

This financial redress scheme was operationalized by a court-like administrative body—the Redress Board. This consisted of 16 members who were experts in social work, pediatrics, and child psychiatry, as well as several judges. Each case was adjudicated by three or four board members, presided over by one of the judges. The board was guided by the Redress Act and another important document—the Government Bill. In the Swedish legal context, government bills “summarize one or several Governmental Official Reports as well as the responses of a referral process among authorities and stakeholders,” and they are used by those enacting legislation to analyze the aims and possible interpretations of a legal act.²² The Government Bill, the Redress Act, and the Redress Board altogether constitute a new welfare institution with which claimants for historical justice have been confronted.

The idea of money as a symbol of the state’s or the government’s recognition of victims’ suffering is something other than a financial redress scheme’s legal practice and outcome. What redress schemes actually do is to clarify for whom the symbolic recognition is intended and for whom it is not. Kathleen Daly has described this as the scheme’s money logic: “how to decide and how much to pay.”²³ The how-much-to-pay dimension of the Swedish scheme was straightforward because, in contrast to many schemes internationally, it did not contain any graded steps. The claimant got either the flat-rate payment or no money at all. The how-to-decide dimension, in contrast, was far more complicated and was outlined in the legal criteria specifying who was eligible for compensation. These criteria were specified in the Redress Act, to some extent defined in the Government Bill, but ultimately interpreted by the Redress Board in their assessment of each individual application.

In order to be awarded money under the Swedish scheme, applications had to meet four specific criteria: applicants had to prove that (1) they had been taken into care between 1920 and 1980 (2) under specified Child Welfare Acts, and they had to (3) give credible evidence of exposure to severe abuse that occurred (4) in conjunction with municipal out-of-home care. Our previous research suggests that the four criteria functioned as excluding mechanisms that fragmented the applicants’ narratives of abuse. Any incident an applicant reported that failed to meet one of the criteria was excluded from the final ruling. Consequently, many of the abusive incidents in an applicant’s story and documentation could be considered non-valid, with the result that the whole application might be rejected.²⁴ This runs contrary to the explicit position taken in the Government Bill that, in its final ruling decision for each case, the board should “make an overall assessment of whether the abuses or neglects that had occurred in total could be determined as being of a serious nature.”²⁵

As we shall see, this practical implementation of the money logic of the Swedish scheme was not always as logical and predictable as expected. In total, the scheme compensated only 46 per cent of the approximately 5000 claimants who sought financial redress for past harms. The fact that more than half of all claimants received nothing stands out in international comparison.²⁶ The money logic alone cannot fully explain the outcome of the scheme. Rather, it is important to address how the design of the redress scheme and the assessment carried out by the Redress Board (the redress institution’s praxis) affected the scheme’s aim of symbolically acknowledging childhood suffering. To do this, we need to investigate how individual cases were adjudicated. Such an approach is still quite unusual. In previous research, the outcomes of redress schemes for historical child abuse have been analyzed either at an aggregate level by examining official reports²⁷ or else by scrutinizing interviews with officials working with the schemes²⁸ and interviewing victims who have been, or will be, affected by the schemes.²⁹

Data and Method

The data for our analysis comprise a sample of the three- to six-page decision texts in individual cases adjudicated by the Redress Board. Every decision text has a formal structure, consisting of the background to the applicant’s placement history, the grounds on which the applicant claimed redress, and the board’s summary of the applicant’s story, concluding with the board’s assessment, in which the decision to reject or award compensation is justified. The decision is the final document in a case file that consists of many other documents, such as the submitted application form, the applicant’s written submission, any other written evidence (witness testimonies, verdicts, etc.), archival documentation, the memorandum that summarized the case prepared by clerks (Sw. föredragande) assisting the Redress Board members, notes from the oral hearing that was held with 82 per cent of the applicants, and so on.³⁰ The decision text, in contrast to any other document in a filed case, is regarded as a public document under Swedish law and was therefore accessible to us. However, personal information, such as names, places, and even the number of years a person was placed in care, are excluded from these decision texts.³¹ We collected every fourth decision—1225 in total. Of these, 521 applications were successful and 704 were rejected.

Firstly, we processed all the decisions in an Excel spreadsheet. Each decision text was coded according to the following variables: whether the application was successful or rejected, the applicant’s gender, the number and character of placements, the grounds for claiming redress, the categories of abuse the applicant had described (differentiating between physical abuse, sexual abuse, work exploitation, detention, discrimination, violation, and neglect), what perpetrators were registered in the applicant’s story, and what arguments the Redress Board gave to justify its decision.

This initial coding allowed us to identify cases that contained allegations of sexual abuse (551). While the Swedish scheme included various categories of abuse, our sample of every fourth decision from the Redress Board demonstrates that child sexual abuse was prevalent in 65 per cent of the successful applications in our sample. This indicates that child sexual abuse was an important aspect of what the Redress Board considered to be severe abuse worthy of compensation. However, allegations of child sexual abuse are also mentioned in applications that did not meet the criteria for being eligible for compensation. In this chapter, we analyze 215 rejections, out of the total of 704 in our sample, in which the applicant reported child sexual abuse. It is important to note that an applicant’s story as summarized by the Redress Board often contains allegations about several types of abuse, which sometimes occurred at various placements during the applicant’s childhood—thus, the sexual abuse was one abuse amongst several. Determining why the incidents of sexual abuse did not meet the eligibility criteria required us to return to the decision texts and subject them to close readings. Special attention was directed towards how the Redress Board balanced a recognition of the victims’ suffering against their understanding of how the state’s responsibility for past abuse in out-of-home care should be comprehended, based on their interpretation of the Redress Act and the Government Bill.

Let us take a closer look at the 215 rejected applications in our sample that contained information about sexual abuse and the grounds upon which they were rejected.

Table 13.1 presents the grounds for rejection in relation to the criteria that outlined the Swedish scheme’s money logic. In a previous article, we presented the four criteria in more detail, concluding that, among other things, the credibility criterion inherited a requirement that the applicant must have the capacity to provide details of traumatic experiences.³² In Table 13.1, we can see that 28 of the 215 applications containing reports of sexual abuse failed to meet this requirement or failed to present sufficient evidence for the board to presume that the applicant had indeed been exposed to severe abuse. Five applications were also rejected because the applicant abstained from the legal process—that is, he or she did not appear at the oral hearing or made a renewed application without adding new information to the case.

Table 13.1 Grounds for decisions to reject the application among the applications containing reports of sexual abuse

When it comes to the care criterion, those whose abuse occurred after 1980 (6) or who were not taken into care under any of the Child Welfare Acts specified in the Redress Act (27) were not eligible for compensation, no matter how severe the sexual abuse may have been. The second most common ground for rejecting applications containing information about child sexual abuse was the conjunction with the care criterion, which we will comment on in the second section of this chapter. First, we turn to the severe abuse criterion, which was the most common ground for rejecting applications.

Child Sexual Abuse Considered Not Severe Enough

The conceptualization of severe abuse in the Government Bill indicates a difference between gross sexual abuse that should be awarded compensation and other forms of sexual abuse that were not conceptualized as severe.³³ In this first section, we analyze how the Redress Board made the distinction between gross sexual abuse entitling the applicant to compensation and sexual abuse that was not considered severe enough, resulting in rejected claims.

Of 215 rejected applications in our sample in which the applicant had reported child sexual abuse, 89 were rejected because the abuse was not considered to meet the severe abuse criterion. What kinds of sexual abuse were not considered severe enough?

It is not easy to establish a rationale for how to group incidents of child sexual abuse. Any categorization carries the risk of trivializing the suffering of the applicants. However, in order to gain an overview of the reported abuses that were not considered severe enough by the Redress Board, we have distinguished between hands-off and hands-on abuse, because such a distinction might have influenced the decisions of the board. A similar distinction was made in one of the preceding government official reports.³⁴

Table 13.2 shows several categories of hands-off sexual abuse that were not considered severe enough to entitle the applicant to compensation. For example, 11 applications contained allegations of perpetrators exposing their genitals or masturbating in front of the applicant. This might happen frequently, as in one case of a girl aged 18 or 19 years, whose foster father used to masturbate in front of her each time she took a bath (case 2013:106).³⁵ It is plausible that the girl’s age was of relevance to the board’s decision here. Age was a decisive factor: the younger the child, the more serious the abuse was considered to be.³⁶ Nevertheless, the Government Bill only stated in one section how age could matter:

The younger or more helpless the child is, the greater the responsibility the home [the caregiver, our interpretation] has for the child’s protection. With increasing age and maturity, however, children become more independent and the protective role of the caregivers changes and becomes more difficult to some extent.³⁷

Table 13.2 Categories of child sexual abuse that were rejected because the abuse was not considered to meet the severe abuse criterion

This reflects that if the applicant was understood as a young child at the time of the abuse, the state, through its representatives, was responsible for what happened, but if he or she was older (mature), the caregivers—and hence the state—could not be expected to protect this young person.

If we now turn to the hands-on abuses listed in Table 13.2, most of the allegations concern applicants being fondled over their clothes (36) or under their clothing (29). In some cases, the applicant has not been able to verbalize in more concrete ways what happened. One male applicant stated that a male staff member had lured him into a room and did things to his penis. It is stated in the board’s decision that the applicant had trouble giving a more detailed description of what had happened (case 2014:326). Consequently, this narrative is categorized as fondling, although it might have encompassed even more serious abuse. Fondling beneath clothing includes several cases in which the perpetrator touched or masturbated the child’s genitals.

In addition, ten applications reported that the child was forced to masturbate or touch the perpetrator, which also did not qualify as severe abuse, according to the board. Nine of these ten applications concern cases in which the child had been forced to masturbate or touch an adult carer, and one case concerned peer-to-peer abuse—a boy who was sexually abused by his ten-year-older foster brother (case 2015:407). It is difficult to extract the motivation as to why this category did not count as severe abuse, but it is apparent that the board did not assess these cases as gross sexual abuse nor as frequent “serious violations and repeated abuse or neglect meant to seriously harm the child’s self-esteem.”³⁸ Some of these decisions contain information that the abuse happened only once or twice, which perhaps did not count as frequent. In one case (2013:135), however, a boy was molested by his foster mother on frequent occasions (two or three times a week) in a foster home where the applicant claimed to have been placed for about two years. The board, in contrast, argued that the archival documents could only support a claim that the applicant had been placed in this foster home for about two weeks. The board explicitly stated in its decision that such a short period of time was sufficient to conclude that the abuse was not severe.

This case demonstrates that the archival documentation was pivotal for the assessment of the severity of abuse. While archival documentation was needed to prove an applicant’s custodial status, the Government Bill also stated that an applicant “should present evidence to the board to presume that the applicant, in conjunction with care, had been exposed to severe abuse or neglect.”³⁹ The Bill gives a few examples of how severe abuse may be evidenced through archival documentation or by calling witnesses, but it does not explicitly mention that archival documentation on placement periods should trump the applicant’s narrative. This is an effect of the board’s interpretation of the Bill. However, previous research, as well as one of the inquiry reports foregrounding the redress scheme, have demonstrated the difficulty of following a child’s journey through the child welfare system based on child welfare records. Documents may be missing, incomplete, or inaccurate.⁴⁰ Consequently, child welfare records must be treated with caution, and their veracity can only be determined in light of how complete the whole case record appears to be. We do not know the status of the child welfare record in the above-mentioned case, only that the Redress Board found archival documents that contradicted the applicant’s narrative.

The most disturbing result in Table 13.2 is that at least on some occasions, neither rape nor attempted rape qualified as severe abuse. Our sample of applications rejected because the sexual abuse was not considered severe enough contains five cases of rape and six cases of attempted rape. As the same individuals reported both attempted and completed rape in some cases, nine individuals were affected by these decisions to reject the application—two men and seven women.

The two men both reported rape. One of them was between 11 and 15 years of age when he was raped by another boy at an institution (case 2013:102). This happened once, and despite the fact that the applicant told the staff, no one reacted. The other boy was 11 years old when a female staff member at an institution forced him to have intercourse with her on three occasions (case 2013:211). Without being explicitly stated in the decision, it is possible that the board deemed this a voluntary act because the decision text also contains information that the applicant and other boys used to peep beneath this woman’s skirt because she wore no underwear. The fact that the boy was only 11 years old when the sexual abuse took place was not taken into consideration.

Three women also reported having been raped as children in care, all by adult men. One was raped by men with no connection to her care placement, and two were raped by their foster fathers when 14–15 years of age. Interestingly, one of these decisions to reject the application was decided on by a divergent board. Two board members opposed the decision, but as the chair of the board had the casting vote, the decision to reject the application was upheld anyway. The case concerns a 14-year-old girl who was raped once by her foster father after he got her drunk. The dissenting members of the board argued that the applicant should be compensated because the foster father took advantage of her sense of security in the home and got her into a helpless state by giving her alcohol. However, the majority argued that, because no violence, threat, or other abuse was reported, the board had to decide whether a single rape was considered gross sexual abuse. The board cited in its ruling a statement in the Government Bill that the assessment must not “completely ignore conditions that today would generate the same settlement of damages as the proposed compensation.”⁴¹

This quote indicates that the assessment of the severity of abuse should relate to contemporary tort law, despite the fact that the purpose was not to compensate for concrete damages as in a tort case but to symbolically acknowledge the victims’ unjustifiable suffering.⁴² In contrast to tort cases, where a lower settlement of damages would be an option, the Swedish redress scheme had only two possible outcomes—the claimant either received SEK 250,000 or nothing at all. This comparison between a flat payment ex gratia response and a tort settlement had negative consequences for many applicants, as the above-mentioned case exemplifies, because tort settlements in Swedish practice are normally low compared to other national standards. For example, the suggested compensation for a child rape victim at the time when the redress board adjudicated the cases was SEK 100,000 upwards, according to the Swedish Crime Victim Compensation and Support Authority (Brottsoffermyndigheten).⁴³ In a previous article, we argued that the extent to which contemporary tort law came to influence the assessment of these historical redress claims was probably not foreseen during the political process leading up to the establishment of the Redress Act.⁴⁴ The symbolic acknowledgment of victims’ unjustified suffering was translated into a legal assessment of historical abuse in accordance with contemporary tort law, which does not seem to be intentional and was not included in the ambitions of Parliament when they settled for an ex gratia payment. In such cases, the legal/judicial practice seems to have obscured the explicit political intention.

The Web of Criteria and Rejected Child Sexual Abuse Victims

Even if an applicant’s report of sexual abuse qualified as severe abuse according to the board’s assessment, other criteria could still disqualify the applicant from being awarded compensation. In this section, we turn to the conjunction with the care criterion that, after severe abuse, was the most common ground for rejecting applications containing information about child sexual abuse. As we will show, this criterion was complex, and it often had paradoxical consequences for applicants. We take the conjunction with the care criterion as a case study for how the character and extent of the state’s responsibility overshadow the recognition of victims’ suffering. Finally, we will present a few decisions to reject the application that have proven difficult to categorize because they appear incomprehensible to us.

The conjunction with the care criterion means that the abuse must have occurred within the institution or foster home, not outside it (for example, at school, in hospital, when the child had run away, etc.). In addition—and this is a more critical dimension of the conjunction with the care criterion—the caregivers, if they were not themselves the perpetrators, had to be considered to have been aware of the abuse and would have had to have deliberately chosen to refrain from taking preventive action.⁴⁵ We have previously shown that this criterion in effect meant that, if the applicant admitted that as a child, he or she did not tell anyone about the abuse committed by someone other than the caregiver, the application was rejected.⁴⁶ This is exactly what happened in 43 of the 215 rejected applications containing information about sexual abuse. It is possible that these applications contain information about gross sexual abuse, but because the applicants did not tell anyone, their caregivers were not aware of the abuse and thus could not act to prevent it from happening again.

However, during a close reading of decisions to reject the application referring to the conjunction with the care criterion, we found at least 12 cases where the decision text contained indications that the caregivers were indeed aware of the abuse. The board rejected these cases anyway. Why? One example concerns a boy aged between 13 and 15 who was sexually abused by two male friends of his foster mother. The first perpetrator abused him on six or seven occasions, mostly at the male perpetrator’s home but once in the foster home. The applicant disclosed the abuse when he was moved to another foster home, which eventually led to a trial where the male perpetrator was convicted. According to the applicant, it was revealed during the trial that this man had also tried to lure other children to come home with him. He was infamous and rumored to be a pedophile. In the decision text, it is claimed that the applicant never personally told his foster mother he was residing with at the time of the abuse, but that he believes she knew about it. The second male perpetrator was a neighbor of the foster parents, and he sexually abused the applicant on four or five occasions. The applicant never told his foster mother about this. In the motivation for the decision to reject the application, which included an assessment of the violations of both perpetrators, the board states:

Nothing has indicated that the foster parents knew or had reason to suspect abuse. Therefore, they cannot be considered to have failed in their responsibility to care for the applicant in the manner required for the abuse to entitle [the applicant] to compensation.⁴⁷

Despite clear indications, such as rumors about one of the perpetrators being a pedophile and an alleged guilty verdict, the board concluded that there was nothing to indicate that the foster parents knew about the abuse. The decision text does not reveal whether the board made efforts to track down the trial verdict. However, had they done so, a non-existent verdict would almost certainly have been mentioned in the decision, as would a verdict that could support or contradict the applicant’s narrative.

An even more delicate aspect of the conjunction with the care criterion is that we found seven applications rejected on the ground that the caregivers became aware of abuse and acted to prevent it. Therefore, the caregivers had not failed in their responsibility to care for the applicant, according to the Redress Board’s assessment, even if they had failed to protect the child from abuse. Consequently, the conjunction with the care criterion resulted in a paradox in which the applicant was damned if he or she did not tell anyone about the abuse but also damned if he or she did disclose the abuse and the caregivers acted upon it. A passage in the Government Bill was decisive in such cases:

In order to assess whether the child in such cases has been exposed to abuse or neglect in conjunction with care, one must take into consideration what a home [caregiver, our clarification] normally could have been expected to be aware of or act upon. If the home has taken responsibility and demonstrated such care concerns as are expected, it cannot be claimed that flaws have occurred in conjunction with care.⁴⁸

Case 2013:97 demonstrates how this passage was put into effect. The applicant was sexually abused as a seven-year-old girl by a man who was a tenant in the foster home. He used to lie on top of her and ejaculate, and he also photographed her genitals while threatening her with severe consequences if she told anyone. On one occasion, the foster mother discovered them. The foster mother took the applicant out of the room and gave her a spanking. After this incident, the applicant was moved to stay for a short period of time with a female friend of the foster mother. When the applicant returned to the foster home, the man was gone.

Interestingly, in its motivation for the decision to reject the application, the board does not say much about the abuse to which the applicant had been exposed but more about whether “normal care concerns could have prevented what occurred [the abuse].” With explicit reference to the Bill, the board concludes that “It has emerged that the applicant’s foster mother acted to protect the applicant when the sexual abuse was disclosed. The foster parents cannot therefore be considered to have failed in their responsibilities.”⁴⁹ It is significant that both the Bill and the decision of the board rests on the premise that it was sufficient that the caregiver acted after the abuse had taken place in order to fulfil his or her responsibilities.

This passage in the Government Bill together with the board’s interpretation of it exemplify how the redress scheme came to shift and narrow its focus from the victim to the limits of the state’s responsibility. The purpose of the scheme—to acknowledge victims’ unjustifiable suffering by offering redress—was downplayed in favor of a focus on proving whether the caregivers (the representatives of the state) had failed in their responsibilities or not. The abuse in itself was not regarded as a legitimate claim for compensation. Instead of redressing historical child abuse, the scheme came to accept it.

Finally, three applications containing information about sexual abuse were rejected for reasons that must be explained with reference to fragmentation and distinctions made between single events of abuse. The board had an obligation to make an overall assessment of each applicant’s abuse according to the Government Bill, but it seems to have failed to do so in a couple of cases that cannot be understood otherwise. Incomprehensible decisions are particularly delicate within a redress scheme in which the applicant had no right to appeal the board’s decision, as in this Swedish scheme.⁵⁰ Two of the three incomprehensible decisions to reject the application concern cases in which the sexual abuse was ignored in the motivation the board gave for its decision, while other incidents listed in these cases were disqualified with reference to other criteria.

In case 2014:275, the applicant claimed compensation on the grounds that she had been sexually and physically abused, offensively treated, and exploited as a laborer during numerous placements at several institutions and foster homes. She had been sent back and forth to out-of-home care from the ages 2 to 3.5 years and from 12 to 18 years. The sexual abuse occurred in a foster home where she stayed for a short period of time as a teenager (a week, according to the archival documentation). The foster father used to touch her genitals beneath her clothing and on one occasion pushed his fingers into her anus. In its decision, the board motivated its rejection by stating that the volume of individual placements was not a ground for compensation, and moreover, the placement periods were very short, and therefore, the abuse could not be considered severe. The sexual abuse was not even mentioned in the motivation. We argue that this is an example of how the board came to fragment the applicants’ narratives so that a childhood with a lot of different experiences of abuse in many different locations did not fit the outline of the money logic, whereby each incident had to meet all the different criteria. This case also shows that the board did not meet the requirement of the Government Bill to make an overall assessment of the child’s vulnerable situation—the child had been moved from place to place and abused constantly in different ways, including sexually, for many years.

Conclusions

This chapter demonstrates how, during its practical operation, a redress scheme can shift away from its explicit aim to acknowledge the victims’ unjustifiable suffering, moving instead to conditioning victims’ interests in relation to the state’s interest in only granting compensation for abuse for which the state could be considered responsible. While some aspects of this shift were detectable in the Government Bill, and therefore must have been obvious to, if not intended by, the designers of the scheme—the Swedish parliament—other aspects are effects of the legal operation that were probably difficult for politicians to foresee. The devil is in the details, and, in this chapter, we have outlined which details were pivotal for why 215 victims of experiences of child sexual abuse did not receive compensation from the Swedish financial redress institution. We have identified several possible explanations for this.

Firstly, the Government Bill did not state that all kinds of sexual abuse would count as severe abuse eligible for compensation. Instead, the Bill made a distinction between gross sexual abuse that clearly would be compensated for and “serious violations and repeated abuse or neglect meant to seriously harm the child’s self-esteem” that would also be compensated for if occurring frequently. Consequently, the text of the Bill urged the Redress Board to consider some child sexual abuse as being insufficiently severe. Our data demonstrate that the board certainly did not evaluate sexually abusive acts—such as fondling, the perpetrator exposing his or her genitals, masturbating in front of the child, or forcing the child to touch or masturbate the perpetrator—as serious violations, even if they occurred frequently. Moreover, not even rapes or attempted rapes by caregivers were considered gross sexual abuse or serious violations if they only happened once or occurred during a placement of only a short duration. Such experiences of child sexual abuse were consequently not considered grounds for redress.

Secondly, a less obvious detail that came to influence the board’s decisions is how the historical abuse described by the applicants compared to current understandings of compensation under tort case law. While the Redress Inquiry argued that contemporary tort case law should not apply when the government was issuing an ex gratia payment as a symbol to acknowledge the victims’ unjustified suffering, the Government Bill, on the contrary, suggested that the definition of severe abuse “could not ignore circumstances that today might lead to equally high damages as the proposed compensation.”⁵¹ In the internal guidelines of the Redress Board, this was expanded upon when it was stated that the board, in defining severe abuse, should “glance at what is required for settlement of damages of SEK 250,000 in a corresponding situation.”⁵² As tort case compensation in Sweden is rather low compared to other national standards, a single event of abuse, even if it concerned child rape, could not easily reach SEK 250,000 in contemporary tort case damages.

In effect, the compensation amount set the standards of what counted as severe abuse, which prioritized a legalistic view of the responsibilities of the state over the victims’ experiences of sexual abuse and suffering, as well as need for redress. The extent to which contemporary tort law would influence the assessment of the historical redress claims once the law was passed was probably not foreseen by the politicians in Parliament. This is an important reminder for designers of forthcoming schemes internationally to be observant about how other contemporary legislation can relate and shape the court practice of redress schemes.

Thirdly, the ambition to both acknowledge the suffering caused by the experiences of severe child abuse in welfare institutions and to assess the responsibility of the state in legal terms proved difficult to combine. This resulted in renewed experiences of suffering within the welfare state institutions. Ultimately, this had devastating effects for applicants who were able to prove they were severely abused, including grossly sexually abused, while in municipal out-of-home care, but were still not granted the compensation or the state’s acknowledgement of their suffering. A significant factor here was the details in the outlining of the conjunction with the care criterion, and how they were interpreted by the Redress Board. This criterion explicitly states that compensation could only be granted for abuse for which the state, through its representatives—the caregivers—could be proven responsible. The Bill specified that the state could only be held responsible for abuse occurring within the home and in cases where the caregivers either were themselves the perpetrators or deliberately refrained from taking preventive action for abuse of which they were aware.⁵³ The effects in legal practice of these details of the Bill were probably difficult to foresee.

One of the most surprising and disturbing results of our study is that applicants ended up in a catch-22 situation. They were denied compensation if they had acted as many child abuse victims do by remaining silent for fear of the consequences and not being believed, or perhaps because they did not understand the full ramifications of what had happened to them. They were equally denied compensation if they had spoken up or if the caregivers found out about the abuse in other ways and acted upon it after the abuse had occurred. The caregivers were not held responsible if they did not know or if they knew and had taken some action to prevent further abuse. The fact that caregivers had not been able to protect the children from abuse did not make them responsible in the eyes of the board. Instead of pursuing the message that child abuse within out-of-home care is always the adult caregivers’—and ultimately the state’s—responsibility, the message to claimants who failed to receive financial compensation was that the victims are to blame if they do not speak up, or that no one is to blame for severe abuse in out-of-home care. We argue that this is not at all compatible with the Swedish redress scheme’s explicit aim to acknowledge the experiences of victims of historical child abuse in out-of-home care.⁵⁴