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Compensation for the victims of rape and sexual assault

  • November 25, 2015
  • mmassen
  • Comments Off on Compensation for the victims of rape and sexual assault

 

If you have been the victim of rape or sexual assault then you have two potential ways of making a claim for compensation.

You can look to bring a civil claim against your attacker. This is a claim brought through the courts as you would any other type of personal injury claim.

This would normally be a claim against your attacker as an individual or, if at the time of the assault your attacker was in a position of trust or authority over you, potentially against their employer.  This can apply in cases involving teachers or members of religious orders. The same can apply to colleagues at work, if the opportunity of the assault arose as a result of work. This can include taking advantage of a colleague who say, may be drunk at a works function. This is known as vicarious liability.

If you are not able to make a claim against the individual or their employer the second way of making a claim is to apply to the Criminal Injuries Compensation Authority (CICA).  The CICA is a government funded body that makes compensation payments to the victims of violent crime, including rape and sexual assault.

Which type of claim should I pursue?

If it can be shown that the assault occurred as a result of an opportunity at work then your best chance of success is to bring a claim against your assailant’s employer.  It doesn’t have to be your employer. I have dealt with a case where the owners of a health spa were held to be liable when a masseur sexually assaulted a client.

The reason why an employer is the best avenue, if available, is that they will invariably have insurance for such acts. This ensures that, if you are successful, you will receive compensation.  The downside is that it can be difficult to show a causal link between the employment and the assault so as to make the employer vicariously liable.

A further advantage of bringing a civil claim is that the level of damages and the recoverable heads of claim in a civil matter are greater than for an application to the CICA.

Do I need a conviction to bring a claim?

It is worth bearing in mind that if your attacker is convicted of the assault, you will not have to prove the assault in a civil claim.  However, this would not automatically prove vicarious liability on the part of the employer, and you would therefore still need to prove a causal link with the employment.

If you cannot show a causal link between the employment and the assault, or if it was just an assault by a person outside of work, you can bring a civil claim against your assailant direct.  The problem is however, that even if successful you may not be able to recover any award made in your favour if your assailant has no means to pay.  Household insurance does not cover this type of claim and you would have to go against their personal assets such as, properties, pensions, etc.

How soon do I need to bring my claim?

In any civil personal injury claim there is a three year limitation period.  This means any claim must be brought within three years of the date of the incident, or if the person assaulted was under 18 at the time of the assault, by their 21st birthday.  The Courts do have a discretion to extend this period, but only in exceptional circumstances.

If you bring your claim outside of this period the courts will need to look at the prejudice that both parties will suffer if the claim is allowed to proceed. The main prejudice to the defendant would be that they would be required to defend an alleged set of circumstances, possibly many years after being committed. This may deny them the chance to find witnesses to assist in their defence.  If your attacker was convicted of the offence then you can rely upon the conviction as evidence that the incident occurred, should you wish to bring a claim outside of the three year period. This can allow a situation whereby an assault perpetrated years ago can lead to a conviction, thereby giving rise to the opportunity of bringing a civil claim many years beyond the limitation period.

I don’t know who attacked me. Can I still make a claim?

You can still make an application to the CICA even if you don’t know who attacked you. All you need to show is that on the balance of probabilities, you were the victim of a crime of violence.

Making an application to the CICA

As stated, this is a government funded organisation and the matter is dealt with between you, your lawyer and the CICA.  No contact is made with the party who attacked you.

To qualify for an award you need to make an application within two years of the assault or your eighteenth birthday, (compare this with the three years for a civil claim).  Again, the CICA have a discretion to extend this period, however it is always best to lodge your application within the two year period.

In addition to lodging your application in time you need to show the following:

  1. the incident happened in Great Britain (England/Scotland or Wales);
  1. you reported the matter to the police within 72 hours of the incident taking place;
  1. you co-operated fully with the police.

In addition your award may be reduced or refused if you have criminal convictions that are still relevant.

The CICA has a tariff based system so the same level of award for a particular injury is paid to an applicant regardless of their age or sex. This is supposed to bring consistency when dealing with applicants.

It is worth bearing in mind that none of the requirements for reporting the incident to the police are relevant to a civil claim, nor do any previous convictions have any bearing on your right to bring a civil claim.

In summary, a claim for sexual assault should be brought against, in the following order:

  • where possible, the employers of your attacker on the grounds of vicarious liability
  • a civil claim against your attacker if they have the resources to pay your compensation and your legal fees
  • the Criminal Injuries Compensation Authority as this allows some measure of compensation, albeit based on a tariff system

Regardless of the status of your attacker you should, as a victim of rape or sexual assault, always seek legal advice.

For confidential expert advice get in touch with us today:

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