A recent decision in the Irish Court of Appeal raises questions of whether a new tort of grooming has emerged. It also considered consent in non-recent abuse cases.
McDonald v Conroy and Gorey Community School  IECA 239
The plaintiff alleged that, between 2004 and 2007, when a pupil at the second defendant's school, she was physically and sexually assaulted and falsely imprisoned by the first defendant, who was a chaplain and religion teacher.
The plaintiff was successful at first instance. The High Court held that the first defendant was guilty of the tort of grooming. The second defendants were vicariously liable. The defendants appealed. The Court of Appeal set aside the order of the High Court and directed a rehearing.
The tort of grooming
The Court of Appeal referred to the earlier first instance Irish case of Walsh v Byrne  IEHC 414. This had established that a tort of grooming existed. In Walsh the court defined the tort of grooming as:
"a combination of behaviour by which a child is befriended, to gain his or her confidence and trust and which includes a process by which a person prepares a child, significant adults and the environment for the abuse."
In the present case the first defendant submitted that grooming was not a stand-alone tort and was only actionable if it led to sexual abuse. The Court of Appeal maintained that there were significant questions about whether there is a stand-alone tort of grooming. It determined that it would not be appropriate to resolve these issues on appeal, but that they should be considered at the rehearing.
When commenting upon the decision in Walsh the Court of Appeal noted that the judge had not referred to any authority – Irish or otherwise – in which grooming was recognised as a civil tort.
The first defendant argued that the plaintiff consented to the sexual acts. The acts took place after the plaintiff was aged 17, and thus she could legally consent. The plaintiff said that she had been exploited by the first defendant and that, despite being 17, the relationship between teacher and pupil meant that her consent had been vitiated.
The Court of Appeal noted that there were potential questions about the burden of proof. It hypothesised that:
"When the issue of consent arises in circumstances such as those presented here – involving alleged sexual relations between a person in a position of authority and a person (who was, for much of the relevant period, a child) over whom he had authority – it might be thought that the arguments for requiring the defendant to establish consent, rather than requiring the plaintiff to establish its absence, are particularly compelling."
However the court was not willing to determine these issues on appeal and held that it should be determined following full argument at first instance.
Scots law has not recognised a delict of grooming, but the Irish case law suggests that it is possible that one could emerge. The tone of the Irish Court of Appeal's comments on Walsh suggests that they remain to be convinced such a tort exists. Scottish courts may consider that existing delicts such as assault offer adequate protection. If there is sexual activity without consent, or where in the circumstances any apparent consent was vitiated, then the claimant may well have a good argument that they were assaulted.
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