Adelaide lawyer Mal Byrne writes about the compensation options for victims of sexual abuse in South Australia.
I cannot imagine what it would be like to be the victim of adult or child sexual abuse. While I have represented many sexual abuse victims, I am only qualified to comment as a bystander. Nevertheless, despite those limitations, I can see that the damage done to victims of sexual abuse is profound. Sexual abuse leaves an indelible psychological mark on victims. While some victims recover, the psychological scar is always there and it does not take much to reopen the wound, especially for victims who have been abused as children. Try to imagine being the victim, but dealing with a lifetime of feelings of guilt, shame and embarrassment, all of which are completely irrational as you did nothing wrong, but which won’t go away. A child’s most precious property is their own innocence. You have to be a child before you can grow up. However, perpetrators of sexual abuse rob victims of their childhood, and compromise the transition from childhood to adulthood.
So what are the options for victims of child abuse to obtain compensation for what they have suffered? Of course, sexual abuse is a crime and therefore comes under the jurisdiction of the Victims of Crime Act 2001. However, if you are a victim of sexual abuse, you must report the incident to police, ask police to prosecute and co-operate fully with police in their investigations. If the offender is charged and convicted or pleads guilty to the offence, you will be entitled to claim compensation. If the abuser is charged but is acquitted, or the state of South Australia decide not to prosecute the offender because they do not have enough evidence to prove the offence, you will only be able to claim victims of crime compensation if the state of South Australia accept that the offence occurred beyond reasonable doubt.
Another problem with claims under the Victims of Crime Act 2001 is that the amount of compensation available is limited. The maximum amount payable is $50,000 plus legal fees and disbursements. If you are an adult victim of childhood sexual abuse that occurred decades ago, the entitlement to victims of crime compensation only came into law in 1971 and you will not be able to claim if the abuse occurred prior to that date. When the legislation came into force, the maximum amount payable was $10,000 and was then increased to $20,000, so if the offending occurred during those periods, your entitlement to compensation will be limited to those maximum sums.
The Victims of Crime Act is not necessarily your only option. If the offender had home and contents insurance at the time that the abuse occurred and you weren’t living with the offender, you may be entitled (subject to the terms of the policy) to sue the offender directly under that policy. Of course, you will have to prove that the offending occurred but only on the balance of probabilities rather than beyond reasonable doubt. If the perpetrator does not have house insurance you will need to be confident that the perpetrator has enough assets to pay you compensation before it would be worthwhile proceeding.
If the offender is a health professional and you were the patient, you can sue the offender under his or her professional indemnity policy.
If the offender commits the abuse in the course of their employment, you may be entitled to sue the employer for what is called vicarious liability, that is to say, the employer is held vicariously liable for the conduct of the offender. However, you will need to prove that the employer knew or ought to have known of the abuse. If you were abused as a child at school or as a ward of the State or by a priest or Minister of religion, you may still be entitled to sue even if the employer did not know or should have known of the abuse, if you can establish that the organisation that employed the offender was in effect acting as a substitute parent. The law in this area is still unclear. However, if you were abused as a boarder at a private school or as a ward of the State, you are much more likely to be able to establish this relationship of child/parent than other victims.
There is a three year statutory limitation date or expiry date period for personal injury claims in South Australia. The public awareness about sexual abuse in schools, churches and government institutions has increased substantially over the last decade. The criminal law was also amended several years ago to remove the statutory limitation period for criminal prosecutions. As a result, many sexual abuse victims who were abused as children by church ministers, teachers and other people in positions of authority have chosen to come forward and report the abuse and there have been a number of successful criminal prosecutions.
However, while the limitation period was removed for criminal prosecutions, the law for civil claims is unchanged. The three year period remains and it is still the biggest obstacle that victims face. However, the Courts do have the discretion to grant victims an extension of time on the 3-year limitation date period, but it’s difficult to predict when an extension will be granted. Most of these types of claims don’t run to trial and the precedent decisions are sparse. If you are a victim of childhood sexual abuse and wish to pursue compensation, you will definitely need the assistance of a lawyer, especially if the limitation period has expired. No one can guarantee that you will get the extension of time, but the Courts recognise that sexual abuse in institutions was wide spread during the 1960s, 70s and 80s and will show victims as much compassion as the law allows. However, there is no absolute right to an extension of time and the difficulties in getting an extension can’t be underestimated.
Sexual abuse is intolerable in any civilised society and victims need to be supported by the community and the Courts. When your life has been torn apart by sexual abuse, justice is one avenue to healing. However, the judicial system is imperfect. When the abuse occurred decades ago, the abuser and the witnesses may well be deceased. Memories blur and become less precise. The plaintiff or person suing always has the burden of proving their allegations. As such, the road to justice for victims of sexual abuse is difficult and thorny. Nevertheless, regardless of when the abuse occurred or whether the limitation date has expired it is an act of enormous courage for a sexual abuse victim to come forward, report the abuse and seek compensation. It is not easy to speak out, but every victim who comes forward, makes it easier for the next.
Author: Mal Byrne
For advice in Adelaide or Perth, contact Mal on (08) 8212 1077.