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Legal Information Access Centre (LIAC) - Hot Topics |
Experiences of sexual assault may be different for each person, but it is common to have strong feelings and emotions after the assault. There are certain things that all people who have been sexually assaulted can do that may help them to deal with their experiences following the assault. Immediately after the assault, it may help for the person to:
> find a safe place they can go to, such as a friend’s house, hospital or police station;
> contact someone they can trust, such as a friend or family member;
> contact the NSW Rape Crisis Centre or the nearest Sexual Assault Service for counselling, support and information;
> if the person plans to report the assault to the police, it will assist in the gathering of evidence if they do not wash, eat, drink or brush their teeth. It’s useful to avoid using the toilet unless it is urgent, and not tidy anything including themselves;
> seek a medical examination as soon as possible (best within 72 hours).
Later, it may help for the person to:
> talk about what they have been through with a counsellor or Sexual Assault Service;
> develop a support network of friends, workmates, family members, counsellors, service providers, and other people who have been sexually assaulted;
> accept the emotions they are experiencing and allow time to recover;
> take care of themselves and do things to relax, such as going to see a movie, reading a book, or going for a walk;
> find helpful information and material – see Contacts & further reading, p 26.
There are a number of things that can be done to support a person who has been sexually assaulted. This includes:
> if the assault occurred recently, making sure the person is safe from further assaults or harm by encouraging them to go somewhere safe such as a friend’s house, hospital or police station;
> listening to what the person has to say, showing them that their story is believed, and that it was right for them to tell someone about what has happened;
> not making judgements about the person, and making sure that they know what has happened is not their fault;
> respecting the person’s privacy;
> assisting the person to contact a Sexual Assault Service or the police;
> making sure the person knows that what they do next is their decision to make;
> Being informed about sexual assault and about what services are available for people who have been sexually assaulted – see Contacts & further reading, p 26.
If the person who has been sexually assaulted is a child, it is especially important:
> to reassure the child by letting them know that they will be protected from further abuse, someone cares about what has happened and that they will be provided with support and their needs will be taken care of;
> not to ask the child questions about what happened because this needs to be done by either the police or DoCS.
The Victims Compensation Tribunal (VCT) is a part of Victims Services. It is a scheme set up to assist victims of crime on their road to recovery. The legislation about victims compensation is the Victims Support and Rehabilitation Act 1996 (NSW). It is a beneficial piece of legislation, designed to provide support, counselling and financial compensation to victims of violent crime.
Victims compensation claims need to be able to prove:
> an act of violence has occurred in NSW;
> the victim suffered a physical or psychological injury from the act of violence.
An act of violence is defined as either an act, or a series of related acts that:
(a) apparently occurred in the commission of an offence; and
(b) involved violent conduct that resulted in injury or death.
There is a two year time limit from the date of the act of violence to apply for victims compensation. There is a presumption in favour of accepting late applications in cases of domestic violence or sexual assault, unless there is no good reason to do so. This recognises the difficulties of reporting and dealing with the impacts of sexual assault and domestic violence.
The standard of proof in victims compensation claims is ‘the balance of probabilities’. This is a lower standard than the criminal standard of proof ‘beyond a reasonable doubt’. This means that it is possible to get compensation for a matter where the case has not been to court or where the perpetrator has been found not guilty.
It is not necessary for the sexual assault to have gone to court to get compensation. The compensation money is paid out of government funds, so the victim is still able to receive compensation even if the offender does not have any money.
If a criminal case does go to court and the defendant is convicted of a criminal office, the government claims the compensation from the convicted person. This is called victims compensation restitution.
Victims must claim for a specific injury. Currently, the maximum compensation for any crime (including murder) is $50,000. In cases of sexual assault, a victim could claim under the following categories:
Sexual assault category 1 includes:
> indecent assault;
> an assault with violence in the course of attempted sexual assault.
Sexual assault category 2 includes:
> unlawful sexual intercourse;
> infliction of serious bodily harm in the course of attempted sexual assault.
Sexual assault category 3 includes:
> a pattern of abuse involving category 1 or category 2;
> unlawful sexual intercourse where serious bodily harm is inflicted;
> unlawful sexual intercourse where two or more offenders are involved;
> unlawful sexual intercourse where the offender uses an offensive weapon.
Psychological/psychiatric disorder category 2:
This requires a chronic psychological or psychiatric disorder that is severely disabling. To be successful under this category, the victim would have to have a long term psychological injury that results in severe impairment of their ability to function in their day to day activities.
For a victim to claim for sexual assault evidence is needed of either:
(a) an actual physical injury, which may be minor but must be more than transient or trifling;
(b) a psychological or psychiatric disorder, which must be proved by a report written by a person qualified to make that diagnosis.
As well as compensation for the pain and suffering of the injury it is also possible to claim for medical expenses, time lost off work and loss of personal items. Solicitor’s costs for victims compensation are paid for by the VCT.
Compensation can be reduced if the victim did not assist the police or prosecution, did not seek treatment to lessen the injury or if they contributed to the injury.
Applications for compensation are decided on the documents provided to the Tribunal which prove the act of violence and the injury. There is no need for the victim or their solicitor to attend court. Examples of evidence include police records, court documents, medical records, psychologist’s reports and statements from the victim or other witnesses.
Compensation is also possible for secondary victims. For example, parents of a child who has been sexually assaulted may be able to claim as a secondary victim, if they receive an injury as a direct result of becoming aware of the act of violence against their child. They can only receive this if:
> they were the parent/guardian of the primary victim;
> the primary victim was under eighteen at the time of the act of violence;
> they are not the perpetrator.
However, there is only one pool of money for each act of violence for both primary and secondary victims.
If an award for compensation is made and the offender has been convicted for the sexual assault, the VCT will seek to recover the money paid out from them. In these circumstances, the offender would be aware that the victim has applied for compensation. Any reports prepared for the VCT may also be subpoenaed for other legal proceedings and unless protected by the sexual assault communications privilege could be admitted as evidence. Apart from these circumstances, the offender would not need to know about the VCT claim, and the application would be kept private.
The victim compensation scheme will pay for up to 22 hours of free counselling by an approved counsellor. Victims Services also provide other services such as Victims Register, assistance with Victims Impact Statements and a 24 hour victim support line.
If there has been a serious injury as a result of sexual assault, the victim might be able to sue the perpetrator directly for compensation. This is called a civil claim, or a personal injury claim.
To be successful in a civil claim, the victim will have to show that the perpetrator assaulted her and that she suffered injuries as a direct result. The victim would have to give evidence in court and could be cross examined by the perpetrator or his solicitor.
The damages that are awarded in a civil claim could be greater than in an award of victims compensation. However, if the perpetrator does not have any money or assets, it might be difficult to receive payment.
There is a three year time limit from the date of suffering the injury for starting a civil claim for personal injury. It is difficult to begin personal injury claims for sexual assault outside of this time limit.
If the claim is unsuccessful, the victim might be ordered to pay the legal costs of the perpetrator.
Tanya Plibersek, Federal Member for Sydney, in front of the Supreme Court at Queens Square, at a rally organised by the NSW Rape Crisis Centre, demonstrating against sexual violence, 6 September 2004.
Wade Laube, SMH.