Victims’ compensation awards are remedial in nature (Lombard, 1995) and may be viewed as an expression of sympathy and concern by the state for victims of criminal acts (Davies, 1991).
Compensation should be conducive to victims having a more positive view of their future (Walsh, 1994). A description of the process of lodging a claim in the Australian state of New South Wales (NSW) is given below for the period during which study subjects could lodge applications, followed by a summary of research to date and arguments for changes to the system of compensation.
2.13.4.1 Applications for Compensation
In NSW, a Magistrate of the Victims Compensation Tribunal (VCT) decides on claims (Section 4, Victims Compensation Act 1987). “Primary victims” can receive compensation for physical injuries, nervous shock, mental illness or disorder, pregnancy or any combination of these suffered as a direct result of an act of violence (Sections 3 and 10, Victims Compensation Act 1987).
“Secondary victims”, such as parents of injured children, may also lodge claims if they are able to prove to the VCT that they were injured as a result of witnessing or becoming aware of a primary victim’s injuries (Section 10, Victims Compensation Act 1987). Secondary victims can only lodge claims for awards if their primary victims are eligible for compensation awards (Common Law Editors, 1995).
In the NSW, under the Victims Compensation Act 1987, victims who were not satisfied with the determination of their application, could appeal to the District Court, and if victims believed the
District Court had erred in law, they could then appeal to the Supreme Court (Davies, 1991;
Lombard, 1995). A new Victims Compensation Act was passed in 1996, but because claims examined in the course of this study were lodged in NSW prior to 1996, the appropriate sections of the previous Act have been discussed and referenced here.
There are three main categories of awards: injury (pain, suffering and loss of enjoyment of life), expenses (past and future expenses and loss of earnings) and loss of personal effects worn or carried at the time of the act of violence (Common Law Editor, 1995). For example, expenses can be incurred through medical treatment (Scutt, 1990, cited case of Ms T. v Crimes Compensation Tribunal of Victoria (1989) 3 V.A.R. 132 at 134-135, 136), moving house to avoid an area associated with the crime (Bailey, 1991 cited case (1987) 89 F.L.R. 64) and having security devices installed to improve the victims’ sense of personal safety and personal agency (Scutt, 1990, cited case of Ms T. v Crimes Compensation Tribunal of Victoria (1989) 3 V.A.R. 132 at 134-135, 136;
Whittaker, 1989 cited case of Sharman v Evans 138 CLR 563). Claims must not be able to be made elsewhere, such as through private insurance, Medicare, Workcover or civil claims; separate applications must be made for each incident (Lombard, 1995). There is provision, however, for cases where a mental illness or disorder arises from the cumulative effects of a series of related criminal acts occurring over many years (Lombard, 1995).
To be eligible for an award, there must be proof that an act of violence has occurred, although an offender does not need to have been apprehended or convicted as a result (Lombard, 1995). The standard of proof required is based on the balance of probabilities, as it is for civil claims, so the applicant only needs to prove that it was more likely than not that they were injured as a result of a given act of violence (Davies, 1991). It must be clear from police files and medical documentation submitted to the VCT that an act of violence occurred and that the person suffered a recognisable injury and/or mental disorder or illness as a direct result (Lombard, 1995). The offence must also have been reported to the police within a reasonable time, and the victim must have assisted the police in their investigation (Crawford, 1987; Lombard, 1995). In the case of sexual assaults of children, the nature of the offences and the psychological effects of the assaults may be legitimate reasons for not reporting the crimes to the police soon after they were committed (Lombard, 1995).
The Victims Compensation system is not an adversarial system and normal civil claim principles do not apply (Garkawe, 1993). To minimise their distress, victims are not required to appear in person, although they can apply to do so if they wish - the Victims Compensation system is
designed so that hearings or determinations are in a very informal setting (Davis, 1994; Garkawe, 1993). Victims can elect to be represented by another person such as a friend, relative or solicitor, or the application can be done on paper only (Garkawe, 1993). Legal practitioners cannot charge applicants directly for their services, but must recover costs from the VCT, and legal costs are capped. Matters can be “fast-tracked” only when they are determined on written documentation and if the application form is completed correctly and all supporting documentation is provided (Bartley, 1990; Garkawe, 1993; Walsh, 1994).
Awards are reduced or claims are dismissed if it is evident that the victim contributed in some way to the offence (Section 20, Victims Compensation Act 1987). When deciding claims, the VCT also takes into consideration whether an offender may benefit from the award (Section 22, Victims Compensation Act 1987). In NSW, claims must be lodged within 2 years of the date of the offence, although there is provision for late claims, provided claimants submit an application for "leave to apply out of time" (Common Law Editor, 1995). This is of particular relevance to child sexual assault cases, where the victim may have been too young at the time of the offence to lodge a claim themselves, and their parent(s) or guardian did not proceed with an application on their behalf.
Other aspects of child sexual abuse must also be taken into consideration so that applications for leave to apply out of time by adults assaulted as children may be accepted. Because memories of child sexual abuse can be repressed, and because of the secrecy, shame and self-blaming which occurs in victims, the crimes may not be reported until many years later when victims are receiving therapy (Cabassi and George, 1993). These reasons should be viewed as “reasonable explanations”
for delays in reporting and should not be seen as “special circumstances” as they are common to many child sexual assault victims (Cabassi and George, 1993).
2.13.4.2 Research To Date
There have been no previous studies which have focused solely upon child sexual assault claims lodged with the Victims Compensation Tribunal. However, in 1992, the Attorney-General reviewed the implementation and administration of the Victims Compensation Act (1987) and as part of that review, a profile of claims lodged with the Victims Compensation Tribunal from 1988 to 1992 was carried out (Salmelainen, 1995). The review showed that approximately 92% of all claims lodged with the Tribunal were awarded compensation and 85.9% of claims were lodged within 2 years of the act of violence. Child indecent assault claims had the longest time period from act of violence to registration of the claim, with the median time span being 31.5 months and 0.7% of claims were lodged more than 10 years after the act of violence. 64.8% of claims were
awarded in cases where offenders were convicted or alleged offenders were arrested and court action was pending. For primary victims, adult sexual assault victims received the highest mean award ($21,298) and child sexual assault victims received the second highest mean award ($15,618). The overall mean award across all types of crimes was $8,612. After bruising and lacerations, psychological injuries were the third most common injuries, sustained by 39.1% of all victims. Victims who only cited psychological injuries made up 19.1% of all victims, although the most common type of injury listed as the only type sustained was psychological injury. There were no significant differences between mean awards for those victims who appealed (3.5% of applicants) and those who did not. The report did not include the type of evidence used to support claims, the results of appeals and reasons for determinations. Furthermore, because these reports were profiles of claims, the relationship between the size of awards and their ability to predict later emotional and behavioural outcomes in sexually abused children was not examined.