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eLaw Journal: Murdoch University Electronic Journal of Law |
"In determining the amount of an award of compensation the Assessor shall have regard to any behaviour, condition, attitude or disposition of the applicant or deceased person which contributed, directly or indirectly, to the injury or loss suffered by him or to his death, as the case may be, and may reduce the amount which he would otherwise award by such percentage as he thinks just."
This provision addresses the concern that taxpayers do not want to compensate those who are the "author of their own misfortune".[20] This provision, when applied to a victim of domestic violence, looks for a way to hold her, if not totally, at least partly responsible for the violence of the male offender. While it does not justify the abuser's behaviour (he could still be found criminally responsible), its effect is to excuse the abuser's behaviour and apportion responsibility to the victim. The victim may be accused of engaging in "mutual combat" with her abuser, or of provoking the violence.
The following sections on "mutual combat" and "Provocative Conduct" describe how these accusations work against victims of domestic violence. Case scenarios are used to demonstrate how the particular incident of violence could have been perceived. The Assessor did not necessarily use these labels, but instead referred generally to contributory conduct.
Abusers, police, prosecutors, and other officials often minimise domestic violence by viewing it as a situation of mutual combat. The victim gave as good as she got; both parties used physical force; it was a mutual scuffle. Women do use physical acts against their abusers. However, one commentator, Daniel Saunders, asserts that women use physical violence for very specific, and different reasons than men.[21] Firstly, a woman often uses violence in self-defence, and, is usually not the initiator of an attack. Secondly, when women do in fact initiate violence, they may do so because "they sense impending violence from their partner, and initiate the attack in order to stop the overwhelming build up of tension."[22] Finally, Saunders casts doubt on the perception that mutual combat has in fact occurred when the injuries resulting from the violence are so disparate: "A shove by a woman may enrage her partner; a shove by a man can knock a woman down and cause a concussion."[23]
Classifying a physical fight as "mutual combat" ignores the obvious differences in the physical capacities of the parties, and the particular dynamics in male-female relationships. Assuming that the fight has the same characteristics of a male to male bar room brawl (entered into freely and by parties with similar physical capacities) allows society to assert that violence between men and women is also entered into freely and, therefore, that the female victim has indirectly or directly contributed to her injuries. This assumption ignores the reality that the victim's actions could be in self-defence, and negates the disparities in injuries received in a male - female "fight". It allows abusers to benefit from the fact that the victim fought back.
The following case scenarios reflect the Assessor's treatment of compensation claims where physical acts were used by both the offender and the applicant.
The applicant was the cousin of the offender's girlfriend. On the night of the criminal incident, the offender came to the applicant's home where his girlfriend (her cousin) was staying. The offender banged on the door and was verbally abusive. After the girlfriend admitted him into the applicant's home, the applicant asked him to leave twice before finally pushing him toward the door. He punched her twice in the jaw and once in the head. She suffered a broken jaw. After the assault, the applicant's cousin's pushed the offender out and locked the door. The offender was convicted of assault occasioning bodily harm. The Assessor awarded $7000, but reduced the award by 10% for contribution.
By shoving an unwelcome, abusive man towards the door, victim had contributed to her injury.
In this case, the male applicant was the defacto of the female offender. The offender had been drinking heavily and was upset that the applicant's old girlfriend had returned to town. The couple argued throughout the evening and the applicant admitted slapping the offender on a number of occasions. The offender's father was also present and bashed his daughter. The offender left the home and got into her friend's care for a lift . The applicant followed her to her car and ordered her out. She stabbed the applicant and was subsequently convicted of causing grievous bodily harm. The applicant was awarded $7500 with no contribution being found.
In this incident a bashed woman attempted to leave an abusive situation. The applicant's behaviour which contributed to her desire to leave and prevented her from leaving was not found to have contributed to his injury. An anomalous result given that the applicant in scenario one was penalised for shoving an abusive man out of her house, and the applicant in this scenario was not penalised for pursuing his offender once she had left and he was, for all intents and purposes, safe.
The applicant and offender were in a defacto relationship. The couple had been drinking heavily all day and arguing for several days. The day before the criminal incident, the applicant threatened the offender with a knife. On the day of the incident the offender, after being punched by the applicant, backhanded her onto the bed. He later cut the applicant's neck and forehead with a knife. For these injuries he was convicted of unlawful wounding. The Assessor reduced the applicant's $7500 award by 20% for contribution, finding that the mutual hitting and abusing contributed to the applicant's knifing injuries.
The disparity in injuries received in this fight (a punch and a threat versus $7500 in injuries) casts doubt on whether this was an incident of mutual combat. Reading between the lines, it could more easily be described as an instance where a woman's attempts at self defence proved unsuccessful.
Even when a victim has not fought back so as to attract the label of a co-combatant, she can still be deemed to have contributed to her injuries by having provoked her abuser into violence. A common retort of batterers is that they were in fact provoked by a woman's behaviour. In one file reviewed, an offender alleged that his ex wife's demand for maintenance and her refusal of access to his children excused his criminal behaviour of attacking his wife with a knife. He was convicted of attempted murder and his claim of provocation dismissed by the Assessor.
James Ptacek, in "Why Men Batter Their Wives"[24] explores this excuse for violence. He explains that men, who claim provocation, equate verbal aggressiveness with physical aggressiveness. A woman's verbal behaviour excuses them of responsibility for their violence.[25] He argues that even if one took this extreme position, the question that remains is who "provoked" the verbal aggressiveness.[26] Furthermore, he continues, this provocation argument implies that there is a proper way a wife can address her husband, and that the husband is empowered to maintain this behaviour.[27] Apparently in our society the wife cannot be excused for her verbal excesses, but the husband can be excused for his physically retaliatory behaviour. Ptacek concludes "that `loss of control' and `provocation' cannot explain violence; they merely serve as excuses, as rationalisations, and as ways of obscuring the benefits (however temporary or enduring) that the violence provides... at the individual level they obscure the batterers' self interest in acting violent; at the societal level they mask the male domination underlying violence against women."[28]
In criminal prosecutions, provocation can be used as a defence to a criminal charge of assault. The Criminal Code of WA provides that a defendant must have been in fact deprived by the provocation of the power of self control, and act upon it on the sudden and before there is time for his passion to cool.[29] The force used cannot be disproportionate to the provocation. The force must not be intended to, or likely to, cause death or grievous bodily harm. The defence is not available to the charge of causing grievous bodily harm or unlawful wounding.[30] If the defence is successful, the defendant is found not guilty.
It appears that a much wider defence is available to offenders under the Act. As Section 25 indicates, the Assessor shall have regard to any behaviour, attitude or disposition of the applicant... which contributed, directly or directly, to the injury or loss suffered."[31] A review of several of the files indicates that an offender's violence is in fact accepted as being provoked by the applicant's behaviour, no matter how trivial.
The applicant had been living with the violent offender, and had previously fled to refuges for assistance. On the evening of the criminal incident, the applicant had "been picking on the offender about one of his girlfriends until he got angry and couldn't take it anymore" When she realised that the offender was angry and likely to harm her, she grabbed a knife from the floor, thinking she might need it to defend herself. In the course of grasping the knife, she accidentally cut one of her friends and immediately dropped the knife. The offender, knowing she was unarmed, grabbed a chopper and bashed her on the head cutting her above the eye. He then took the blunt end of the chopper and again bashed her on the head. He was subsequently convicted of unlawful wounding. The applicant's award of $2500 was reduced by 20% for contribution.
In this case, note that under the Criminal Code, the defence of provocation was unavailable to the offender at trial. Also note that the provocation of "picking on him about one his girlfriends" was determined sufficient to contribute to her injuries which resulted in a criminal conviction for unlawful wounding.
The applicant cited three separate incidents of physical abuse. In the first incident, her sternum was broken when her defacto shoved her. She did not report this incident to the police, saying, "I did not consider the police would appreciate a person reporting an incident where their spouse pushed them." In the second incident, the applicant poured half a glass of wine over the defendant after he had been accusing her of being unfaithful throughout the evening. He reacted by head butting her; she suffered a fractured eye socket and cheekbone. The following day the offender pusher her head into a wall, then threw her into another wall with such force that her head put a hole through the asbestos panelling. Her award of $10,000 for the severe injuries she received, was reduced by 15% for her contributory conduct of pouring a half of a glass of wine on her attacker.
The offender absconded from the jurisdiction and was not brought to trial. Even if he had been, it is doubtful whether he could have raised a defence of provocation, and extremely unlikely it would have been successful.
Domestic violence was again shown to be of an ongoing nature. The offender had previously bashed his defacto, broken her hand, and caused cuts to her face. The criminal incident in the application consisted of his pushing her head into a wall and attempting to rape her. Though the matter was reported to the police, the offender was not charged because there were no witnesses and the police believed the applicant had provoked the offender while under the influence of alcohol. Relying on this police statement, the Assessor reduced the $3000 award by 20%.
The question that arises in this case is what standard the police used to determine that the offender had been provoked? If there were no witnesses to the incident, what witnesses were there to ascertain provocation?
The Criminal Injuries Compensation scheme is intended to compensate victims of crime. The victim must have been injured by the offender's criminal behaviour. If the criminal law allows a defence (such as provocation) to be asserted to avoid criminal responsibility, then the defence should be available to the offender to avoid liability for Criminal Injuries Compensation. In the majority, if not all, of the above case scenarios, the offender would not be able to raise the defence of provocation or self-defence in a criminal trial. The offender's behaviour would most likely be considered disproportionate to the provocation or the threat so as to preclude the defence being successful.
Assuming for argument's sake that an offender could be excused in a criminal trial for his conduct, the victim would still be able to pursue civil damages against the defendant for an intentional tort (assault and battery for example). In such actions, the offender will be unable to raise the defence of provocation to reduce compensatory damages.[32] These defences are not available in an intentional tort action such as battery or assault.[33] These exclusions, it has been asserted, arose as a "matter of comparative fault, in that there was a difference in failing to take proper care for his own safety, and the deliberate wrongdoing of the defendant' and that "not only was it a matter of comparative fault, but also a penal measure designed to repress flagrantly wrongful conduct." [34] The offender would, furthermore, be unable to raise any alleged contributory negligence of the victim.[35]
The limitation on the offender's use of such defences make sense. Society is willing to allow an offender to avoid the most severe of societal sanctions, criminal responsibility, when his unlawful behaviour is the result of provocation. Society is not, however, willing to allow him to escape financial liability for the damage caused by his intentional conduct.
By limiting Criminal Injuries Compensation to criminal acts, society is essentially sanctioning the use of the same approach -- it will use taxpayer's money to compensate for criminal behaviour, but not all unlawful behaviour. However, the Act goes much further. It allows the behaviour of the victim, not the offender, to be scrutinised to an extent not allowed elsewhere in criminal or tort law. If the behaviour of the offender is criminal (and intentional), the contributory conduct of the victim is irrelevant. The apportionment legislation of Western Australia specifically provides that "except in the case of an indictable offence arising out of some negligent act or omissions, no contribution may be claimed by a person who is responsible in tort if in the circumstances of the case he is, or might be found guilty of any indictable offence (including an indictable offence punishable on summary conviction).[36]
Furthermore, even when the defence is allowed in negligence actions where the circumstances do not indicate criminal behaviour, the plea must be specifically raised by the defendant, who then bears the onus of proof.[37] In contrast, the Criminal Injuries Compensation legislation allows the Assessor, in fact requires her, to assert the plea, whether or not the offender has made any objection of the victim's application.[38]
As raised in the introduction, one of the underlying rationales of the compensation scheme is to atone for the state's failure to protect its citizens from crime. An argument could be made that when an applicant seeks compensation from the State for its failure to protect her, greater scrutiny of her behaviour should be allowed. The State could argue that, as in any other negligence action, the contributory negligence of the plaintiff is allowed to be raised as defence, and is relevant. However, this rationale has been challenged as being "open to objection that the relationship is simply too remote" and as being "the weakest as an argument from legal theory as it runs into constitutional problems of sovereign immunity and the public policy argument which militates against conferring on the individual the right to sue the State."[39] Furthermore, "the injunction to reduce or deny is the reverse side of the tort coin: it is the plaintiff who is having his knuckles rapped for bad behaviour."[40]
If the ' State Is Responsible' rationale is abandoned, then the scheme's function should be limited to awarding damages for injury caused by criminal behaviour which is not excused except by legally recognized defences. There would be no legally recognised right for society to further scrutinise the applicant's behaviour.
Furthermore, if the scheme is to be used as a vehicle for social education (to educate citizens on what is acceptable behaviour), then any proscription on victim behaviour must be clearly delineated. Otherwise the educative function of the scheme is in effective, and the overall credibility of the scheme suspect. An applicant will perceive her treatment to be arbitrary and subject to the individual and personal values of the Assessor.
The other intended purpose of the scheme is to provide compensation to victims who would otherwise be unable to recoup damages for injuries because of the impecuniosity of the offender and the inherent difficulties of accessing the civil courts. If the Act is to serve this goal, then the standards it employs should reflect those available to a plaintiff in a civil action. The procedures and standards should not be more severe or onerous, otherwise the benefits of using the compensation scheme as an alternative forum disappears.
In the context of domestic violence, the examination of victim's behaviour is particularly inappropriate. Again, society is looking for a way to hold her responsible for her abuser's violence. Is it in anyone's interest, beside the abuser's, to ascribe blame to the victim? By reducing an award under the misconception that the injury occurred during "mutual combat" or because the victim provoked the abuser in some way (a way which would not be recognized in criminal law), the scheme reinforces the belief that there is a proper way for a woman to treat her intimate, and that if she misbehaves she will be held responsible for her abuser's violence, no matter how disproportionate it is. Subjecting the victim's behaviour to these vague and misconstrued inquires legitimises an offender's use of violence to control, and reaffirm his sense of entitlement to power. This in turn affirms all men's sense of entitlement to power and control over women.
Arguably, when an application is received by the Assessor, and the offender has been found guilty of a crime, it is inappropriate for her to further scrutinise the victim's behaviour. In the case of In Re Hondros,[41] the Court ruled that in considering an application for an award, it was bound to act upon the view of the testimony given at the trial. The statute did not contemplate that the issue of whether the applicant had contributed to her own injury should be re-litigated when an application for compensation is made under the statute.[42] This reasoning could be used to support an argument that if the provocative conduct was not allowed to be raised as a defence, or deemed insufficient at law to constitute a defence, the issue of provocation should not be re-litigated by the Assessor. If the offender was not brought to trial, either because the prosecutor declined to charge, or the offender absconded from the jurisdiction, then the Assessor could consider whether there was provocation sufficient to negate criminal activity. If the provocative behaviour would not be sufficient at criminal law, then the inquiry should stop.
Section 24 of the Criminal Injuries Compensation Act contains a formidable hurdle for a victim of domestic violence. That section states that the Assessor shall not make an award to an applicant if:
"the Assessor is of the opinion that the applicant...did not do any act or thing which he ought reasonably to have done to assist in the identification, apprehension or prosecution of any person alleged to have committed that offence or alleged offence."[43]
On its face this section seems appropriate. If a victim wishes to receive compensation for a criminal offence, then she should cooperate with authorities who seek to bring the offender before a court to face criminal charges. The key word in the section, however, is "reasonably." What would be reasonable in the context of an assault by a stranger will not necessarily be reasonable in the context of an assault by an intimate.[44]
Firstly, this section assumes that both the victim and the relevant authorities will in fact recognise that the offender's behaviour is criminal. Quite often police view a domestic violence calls as just another "domestic", a waste of their time, and a situation which is best characterised as a family matter.[45] It is difficult to assist police in the enforcement of a criminal matter when they themselves do not believe the matter should attract their attention or time.
Secondly, through the provision and reliance on civil remedies to stop abuse, the courts and other criminal justice system agencies have perpetuated the view that domestic violence is not criminal.[46] Victims are often advised to seek a restraining order against the offender for his breach of the peace. The order, if granted, is an accepted means of controlling and addressing violence against women.[47] While such orders may offer some protection to some women, the criminal nature of the offender's behaviour which prompted the victim to seek judicial assistance in the first place should not be ignored.
Thirdly, a victim herself may not believe that the violence she has suffered is in fact criminal. As described in the previous section,[48] one victim did not think the police would appreciate her bothering them about her de facto pushing her down (a push which caused a broken sternum). Furthermore, if a victim has sought the assistance of the courts to obtain a restraining order against the offender, she may believe that the civil remedy is all that is available to her. If, after relating the facts necessary to obtain an order, the court gives no indication that the offender's behaviour is criminal, the victim may adopt this perception herself.
When a woman calls the police for help in dealing with a violent offender, this decision, and all subsequent ones, are influenced by a "complexity of relationship and concerns."[49]
Her situation is not easily dealt with by traditional police procedure and practices used to deal with crimes by strangers.[50] By calling the police, she risks losing her relationship with the offender and all that it entails - love, economic support, the relationship the offender may have with her children.[51] Quite often what she wants is to have the violence end, not the relationship and everything it means. Unfortunately, a police response cannot guarantee the end to the violence.[52] In fact, if the victim calls for help, the offender may retaliate with increased violence.[53] Insisting that women report the abuse requires her to risk losing the relationship (and its attendant support), and also puts her at risk for increased violence by the offender.
If the victim has decided to terminate the relationship and seeks police assistance to get the offender out of her life, she will then "expose her family life, and the history of past dispute to the scrutiny of the police, the courts, and the Board, and a feeling of degradation or humiliation may provide a bar to her taking any action at all."[54] These feelings can also explain why a victim may withdraw a complaint after police intervention has occurred. Unfortunately, the police view the withdrawal of a complaint as an indication that the matter was not criminal after all. They fail to appreciate the victim's underlying motivation. They fail to acknowledge that if they had properly conducted an investigation into the facts surrounding the crime (interviewing potential witnesses, gathering collaborative evidence such as hospital records, seeking a confession from the offender), the need for a victim's complaint might be unnecessary.
The following scenarios reflect the Assessor's failure to recognise the difficulties faced by women in seeking the intervention of law enforcement authorities.
The victim, a year 12 student, was the step daughter of the offender. The offender was violent towards both the applicant and her mother. The abuse against the applicant which formed the basis of her application occurred over a two month period. During this period, the applicant obtained a restraining order against the offender. This restraining order was subsequently confirmed five months later when the offender was arrested (and later convicted) of attacking the applicant's mother with a knife.
The applicant sought compensation for injuries resulting from the offender punching her on the upper body and head. Her condition deteriorated over time to the extent that surgery to correct her jaw was contemplated. She required anti-depressant medication and psychological counselling.
At the time of the alleged offences, the offender would not allow the victim to use the telephone or to leave the house because he was afraid she would call the police. Any attempt by the applicant to do either was met with more violence and threats.
The victim's application was filed outside the three year limitation period contained in the Act. The Assessor granted the extension to allow the application to proceed. She, however, denied an award because the victim had failed to comply with the requirement of Section 24 (cooperating with police authorities.) The Assessor identified two reasons for these requirements: to guard against fraudulent claims when no person has been brought to trial, and to assist the Crown's right of recovery against the offender. Specifically she found that it seemed "inconsistent for the applicant to have the resolve to seek a court order and yet not have the resolve to make a complaint to the police."
The Assessor failed to consider that the applicant may have felt there was far less risk in seeking a civil remedy (the restraining order) where it would not be necessary for her to face the offender, than for her to contact the police who would surely require some form of confrontation with her stepfather. She may have just wanted the violence against her to stop, but not have wanted to be responsible for breaking up her mother's marriage. One might also inquire why the Court ,which issued the restraining order, did not notify the Department of Family and Children's Services that a minor was living in an abusive household and had been seriously injured as a result of her stepfather's violence.
The applicant and offender were an estranged de facto couple. On the evening of the alleged offences, the couple argued over the care of their child. The offender chased the applicant, threw her to the ground, and kicked her. She escaped and drove home. He followed her, broke into her home, dragged her into the shower where he held her head under water. He then stripped her of her clothing. She ran to a neighbour's home for help, but was caught by the offender and forced back into her home. He then hit her on the face causing her to pass out. She suffered a broken finger, bruised thigh, and a black eye.
The applicant reported the incident to the police and her statement was taken. The police noted that the offender intended to plead guilty. Approximately two weeks after the incident, the victim withdrew her complaint. After receiving the application for compensation, the Assessor advised the applicant that she would be unlikely to satisfy the requirements of section 24 because the charges against the offender had been withdrawn. The applicant did not respond to the Assessor's notice, and the file was closed.
The circumstances in this scenario indicate that had the police properly obtained available collaborative evidence from the neighbour, doctors, and offender, there would have been sufficient information to proceed without the statement of the victim. By making the initial contact with the police, the applicant could reasonably be viewed as having done everything that she ought to have done. Unfortunately, the police did not do everything they should have done.
To address the special needs of victims of domestic violence, the term "reasonable" should be interpreted liberally and in the particular context in which domestic violence occurs.[55] In both of the scenarios detailed above, the victim did, in fact, do everything that was reasonable for her to do.
The Criminal Injuries Compensation Board in Britain, which has similar requirements for victim cooperation with authorities, has held:
"Provided that a victim co-operates with the authorities, his express wish that there should be no prosecution, or his refusal to make a formal complaint, should not preclude him from compensation. Where the victim does refuse to press charges, the Board will specifically ask the police whether, in all other respects, he co-operated with them."[56]
There are many legitimate reasons why women do not contact police when domestic violence occurs. Fear of retaliation, past futile dealings with police, intimidation by the abuser, and a reluctance to be scrutinised by unsympathetic law enforcement authorities, are all reasonable explanations for not seeking outside help. It is inconsistent to have a requirement to seek such help if to do so is counter productive, and potentially life threatening. If the criminal justice system was truly interested in bringing men who abuse women to justice, then the appropriate mechanisms to ensure the victim's safety and cooperation must be in place before society can expect her to avail herself of the system's help.
Section 23 of the Criminal Injuries Compensation Act states:
"The Assessor shall not make an award of compensation to an applicant of he considers that, by reason of any relationship or connection between the person who committed the offence.. and the applicant.., any compensation awarded is likely to result in a benefit or advantage to the person who committed the offence or alleged offence."[57]
Again, on its face this section makes sense. It forecloses the possibility of collusion on applications and ensures that criminal activities will not be rewarded.[58] However, in the context of domestic violence, this provision fails to take into account the reality of a victim's circumstances -- circumstances which are ( or may be) beyond her control.
Firstly, this requirement assumes that if the victim and the offender share the same household, they are sharing a common household purse. It is possible that, for all intents and purposes, they live separate lives and that the only reason the victim remains in the home is that she has insufficient independent income to move out.[59]An award for compensation for injuries caused by her abuser could, in fact, be her ticket to freedom. The Assessor could make an award, place it in trust, and release the funds when the applicant has found alternative accommodation. Alternatively, an award could be made directly to a third party, the funds earmarked for a particular purpose. There were no applications in the review of files wherethis hurdle was faced by an applicant.
This article demonstrates that the Criminal Injuries Compensation Act contains inappropriate and inconsistent standards which serve to deny victims of domestic violence due compensation for crimes committed against them. Its strictly "legalistic" approach to compensation is flawed in two primary ways. First, by looking for contributory conduct in the victim, the Act creates defences to otherwise actionable conduct. The offender would not be able to assert a defence in criminal law, or allege contribution in tort law for his victim's behaviour. Second, the Act ignores the social and psychological context in which domestic violence takes place. The Act's attempt to award compensation only for the "truly deserving", and for those who are deemed not to be the "author of their own misfortune" is used to blame women for remaining in an abusive relationship or not seeking the assistance of the legal system when leaving it. . The realities of the context in which domestic violence occurs is ignored. As a result, the criminal offender is allowed to escape potential financial responsibility for his actions.
Section 25 of the Act should be amended in two ways. First, the section should be amended to prevent a reduction in compensation unless the reduction is one which would be recognised and allowed in a civil tort action. Perhaps more importantly, Section 25 should be amended to prevent the reduction of compensation for provocation unless the offender would have such defence available to him in a criminal prosecution.
The requirement that the victim fully cooperate with relevant authorities also fails to address the realities of the victim's life and the realities of the criminal justice system. The woman victim is held accountable for society's failure to implement effective intervention practices which would enable the victim to access outside agencies for assistance. Those interpreting the Act ascribe mal intent to the victim for failing to report the criminal act, or failing to cooperate with police. This interpretation refuses to acknowledge that some women do not view the law enforcement authorities as a potential source of help, and that some women would be putting their life at risk if they made such contact. Section 24 requires the applicant to do "any act or thing which ... [the applicant] ought reasonably to have done." The term "reasonably" must be interpreted in light of the reality of the victim's life situation, and with reference to the societal context in which domestic violence and the victim's response to domestic violence takes place.
As noted in the introduction, the Western Australian criminal injuries compensation scheme is intended to compensate innocent victims of criminal abuse. While the State cannot fully compensate such victims, if the scheme is to achieve its purpose of compensating innocent victims and assessing responsibility on the part of criminal offenders, then the Act must focus on the offender's behaviour not the victim's. The reforms suggested in this article are essential if the Act is to achieve its purpose, and more vitally, these reforms are essential to overcome the view that innocent women victims of criminal abuse are, somehow and in some way, responsible for that abuse.
[*] Ms Jurevic, BS, Portland State University; JD Lewis & Clark Law School, is a Lecturer in Law at Murdoch University School of Law.
She thanks Ms Jo Goodie for her invaluable research assistance and her dedication in reviewing 620 files at the Office of the Assessor.
She also thanks the Office of the Assessor for making the files available which form the basis for this research.
[1] See generally Stubbs J. (ed), Women, Male Violence and the Law, (Sydney: Institute of Criminology Monograph Series N.6, 1994); Buzawa & Buzawa, Domestic Violence: The Changing Criminal Justice Response (Westport: Auburn House); Seddon N, Domestic Violence in Australia, (2 ed) (Annandale: Federation Press, 1993)
[2] Veitch E and Miers D, "Assault on The Law of Tort" 38 Mod L Rev 139 at 147 (1975)
[3] Id at 148
[4] Id at 150
[5] Ibid
[6] See generally, Westling, W "Some Aspects of the Judicial Determination of Compensation Payable to Victims of Crime" (1974) 48 ALJ 428; Victims of Crime Working Party "What About Me? Office of the Attorney General Western Au stralia; Miers, P Compensation For Criminal Injuries (London: Butterworths, 1990)
[7] Ibid
[8] Ibid
[9] Western Australia Parliament Parliamentary Debates (Hansard) Vol 255 ,1985 at 1034 (17 September 1985)
[10] Ibid
[11] Western Australia Parliament Parliamentary Debates (Hansard) Vol 256, 1985 at 1790 (8 October 1985)
[12] Granted the State will still pursue a separate criminal action against the offender if possible, but the Criminal Injuries Compensation scheme provides the opportunity for relief if this is not feasible, for example, when the identity of the offender is unknown, or if there is insufficient evidence to proceed with a criminal prosecution.
[13] This assumes that the applicant may be seeking financial assistance from the State via Social Security, or other welfare entitlement programs. While many victims would prima facie be ineligible for such assistance, the in tended benefits of these programs is to offer financial assistance for citizens in financial need who meet predetermined eligibility standards.
[14] Above, note 2 at 150
[15] Above, note 1, at 151 : "If a victims compensation scheme purports to compensate for injuries, then previous bad character has no relevance whatsoever; if it has relevance then the scheme performs more than a simple compe nsatory function. The injunction to reduce or deny is the reverse side of the tort coin: it is the plaintiff who is having his knuckles rapped for bad behaviour. If the function of legal institutions is social education then criminal injuries compensation schemes are in the forefront. It is clear from the available reports of criminal injuries schemes that it is middle-class values that are being imposed."
[16] "On average it was taking nine to 12 months to compete a claim but it's now more like 12 to 15 months, so the backlog is growing... Last year (1994) 952 cases were finalised, either by awards or refusals, out of 1286. At the end of 1994, there were 1873 cases waiting to be processed. "Cash No Cure For Crime Victims" Sunday Times 13 August 1995
[17] See generally, Wessex, M "Criminal Injuries Compensation and Family Violence" [1983] Journal Of Social Welfare Law 100
[18] Criminal Injuries Compensation Act 1985 (WA) section 7
[20] Western Australia Parliament Parliamentary Debates (Hansard) Vol 2**, 1982 p 4055 (20 October 1982)
[21] Yllo K & Bograd M (eds) Feminist Perspectives on Wife Abuse (Newbury Park: Sage, 1988) pp 107-109
[22] Id at 107
[23] Id at 108
[24] Above, note 21, at 133
[25] Id at 145
[26] Ibid
[27] Ibid
[28] Id at 151
[29] Herlihy J & Kenny R, An Introduction to Criminal Law in Queensland and Western Australia (3 Ed) (Sydney: Butterworths, 1990) at 208-211
[30] Id at 211
[32] But see Ween v Evans (1985) 2 SR 263 (WA), where a district court judge held that provocation could be a defence in a civil action. This area of the law is apparently unsettled in Western Australia. Section 247 of the Cri minal Code Act does state that "It is lawful for any person to use such force as is reasonably necessary to prevent the repetition of an act or insult of such a nature as to be provocation to him for an assault; provided that the force used is not intende d, and is not such as is likely, to cause death or grievous bodily harm." While a full analysis of the relevant sections is beyond the scope of this paper, one might inquire whether an offender, in the context of domestic violence would ever be able to su stain this defence given the often trivial nature of the provocation claimed, and the extreme nature of his response to such provocation.
[33] See generally O'Regan R, "Provocation as a Defence in Queensland in a Civil Action for Assault" (1990) 16 n.1 U Qld L. J. 117
[34] Hudson, A "Contributory Negligence as a Defence to Battery" 4 Legal Studies (1984) at 340
[35] An offender would be most unlikely to successfully raise the defences of violent non fit injuria or consent in the context of domestic violence.
[36] Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act, 1947 (WA) s 7
[37] See generally Trindade, F & Cane, P, The Law of Torts in Australia (2 ed) (Melbourne: Oxford,1993)
[38] Criminal Injuries Compensation Act 1985 (WA) s 25
[39] Above note 2 at 149
[40] Id at 151
[41] In Re Hondros [1973] WAR 1
[42] Id at 3
[43] Criminal Injuries Compensation Act 1985 (WA) s 24
[44] Ferraro, K & Pope L, "Irreconcilable Differences: Battered Women, Police and the Law" in Legal Responses To Wife Assault (Newbury Park: Sage, 1993) at 106-109
[45] Above note 17 at 104; and note 44 at 119
[46] Above note 17 at 104
[47] Supreme Court of Western Australia, Report Of Chief Justice's Task Force on Gender Bias, (Perth WA, 1994) at 155-156
[48] See scenario five in text
[49] Above note 44 at 106
[50] Id at 108
[51] Brownlee, I "Compellability and Contempt in Domestic Violence Cases" [1990] Journal of Social Welfare Law 107, at 112
[52] Above note 21 at 104
[53] Id at 106
[54] Above note 21 at 104
[55] When interpreting remedial legislation, provisions should be interpreted liberally in favour of the intended beneficiary. See: Langer R, "Battered Women and the Criminal Injury Compensation Board: Re A.L.", (1991) 53 Saskatchewan Law Review 453
[56] Miers, above note 6 at 75
[57] Criminal Injuries Compensation Act 1985 (WA) s 23
[58] Above note 21 at 105
[59] Id
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