• Specific Year
    Any

Forster, Christine; Jivan, Vedna --- "Opportunity Lost: In Search of Justice for Victims of Sexual Assault" [2005] UNSWLawJl 45; (2005) 28(3) UNSW Law Journal 758

[*] Christine Forster, Law Faculty, University of NSW. Vedna Jivan, Law Faculty, University of Technology, Sydney.

[1] Victims Compensation Fund Corporation v GM [2004] NSWCA 185 (Unreported, Mason P, Ipp JA, McColl JA, 16 June 2004).

[2] Peter Duff, ‘The Measure of Criminal Injuries Compensation: Political Pragmatism or Dogs Dinner?’ (1998) 18 Oxford Journal of Legal Studies 105, 133.

[3] See Christine Forster, ‘Stolen Generations and the Victim’s Compensation Tribunal: The Writing in of Aboriginality to “Write Out” a Right to Compensatory Redress for Sexual Assault’ [2002] UNSWLawJl 7; (2002) 25(1) University of New South Wales Law Journal 185; see also New South Wales Combined Community Legal Centres, Submission to the Attorney General’s Review of the VSRA 1996 and Victims Rights Act; NSW Attorney-General’s Department, Review of the Victims Support and Rehabilitation Act 1996 and the Victims Rights Act 1996 (2004) 42.

[4] [2004] NSWCA 185 (Unreported, Mason P, Ipp JA, McColl JA, 16 June 2004).

[5] See Diana Majury, ‘Equality and Discrimination According to the Supreme Court of Canada’ (1991) 4 Canadian Journal of Women and the Law 407, 417 who argues that it is crucial to consider context when interpreting any legal measure aimed at addressing inequality. See also Jenny Morgan, ‘Equality Rights in the Australian Context: A Feminist Assessment’ in Philip Alston (ed), Towards an Australian Bill of Rights (1994), who similarly advocates a ‘contextual’ approach in the application of equality measures.

[6] See generally Liz Tong, Kim Oates, Michael McDowell, ‘Personality Development Following Sexual Abuse’ (1987) 11 Child Abuse and Neglect 371; Judith Cohen and Anthony Mannarino, ‘Psychological Symptoms in Sexually Abused Girls’ (1988) 12 Child Abuse and Neglect 571; David Finkelhor et al, ‘Sexual Abuse and its Relationship to Later Sexual Satisfaction, Marital Status, Religion and Attitudes’ (1989) 4 Journal of Interpersonal Violence 379; A J Einbender and William Friedrich, ‘Psychological Functioning and Behaviour of Sexually Abused Girls’ (1989) 57 Journal of Consulting and Clinical Psychology 155; Judith Herman, Trauma and Recovery: From Domestic Abuse to Political Terror (1992); Paul Mullen et al, ‘The Effect of Child Sexual Abuse on Social, Interpersonal and Sexual Function in Adult Life’ (1994) 165 British Journal of Psychiatry 35; Mark Chaffin, John Wherry and Roscoe Dykman, ‘School Age Children’s Coping with Sexual Abuse: Abuses, Stresses, and Symptoms Associated with Four Coping Strategies’ (1997) 21(2) Child Abuse and Neglect 227; Paul Mullen and Jillian Fleming, ‘Long Term Effects of Child Sexual Abuse’ (1998) 9 Issues in Child Abuse Prevention <http://www.aifs.gov/au/nch/issues9.html> at 6 November 2005; Jillian Fleming et al, ‘The Long-Term Impact of Childhood Sexual Abuse in Australian Women’ (1999) 23 (2) Child Abuse and Neglect 145.

[7] See Reg Graycar and Jenny Morgan, ‘Disabling Citizenship: Civil Death for Women in the 1990s’ [1995] AdelLawRw 3; (1995) 17 Adelaide Law Review 49; Luan Danaan, ‘Justice Meets Mnemosyne: The Law and Women’s Memories of Child Sexual Assault’ (1996) 7 Australian Feminist Law Journal 151; Sue Jarvis and Fiona McIlwaine, ‘Telling the Whole Story: Reports to the Crimes Compensation Tribunal’ (1996) 7 Australian Feminist Law Journal 145; Luan Danaan, ‘Just Tokens? A Report on the Experience of Victim/Survivors of Sexual Assault when Making Application for Crimes Compensation’ (1997) 9 Australian Feminist Law Journal 143; Ian Freckelton, ‘Compensating the Sexually Abused’ in Patricia Easteal (ed) Balancing the Scales. Rape, Law Reform and Australian Culture (1998) 19; Nick Mullany, ‘Civil Actions for Childhood Abuse in Australia’ (1999) 115 The Law Quarterly Review 565; Nathalie Des Rosiers, ‘Childhood Sexual Abuse and the Civil Courts’ (1999) Tort Law Review 201; Julie Stubbs, ‘Sexual Assault, Criminal Justice and Law and Order’ (2003) Practice and Prevention: Contemporary Issues in Adult Sexual Assault in NSW <http://www.agd.nsw.gov.au/cpd.nsf/> at 6 November 2005.

[8] GM v Victims Compensation Fund (Unreported, Sidis J, 18 June 2003).

[9] GM [2004] NSWCA 185 (Unreported, Mason P, Ipp JA, McColl JA, 16 June 2004).

[10] Crimes Act 1900 (NSW) s 437(1).

[11] Ian Freckelton, Criminal Injuries Compensation: Law, Practice and Policy (2001) 32.

[12] See Paul Fairall, ‘Criminal Compensation Under the Crimes Act 1900 (NSW)’ (1985) 9 Criminal Law Journal 98, 99.

[13] Criminal Injuries Compensation Act 1967 (NSW).

[14] See Freckelton, above n 11, 32.

[15] See Fairall, above n 12, 98.

[16] New Zealand was the first in 1963: Criminal Injuries Compensation Act 1963 (NZ) followed by the United Kingdom: Criminal Inj uries Compensation Act 1963 (UK). The United States passed legislation in 29 jurisdictions between 1965 and 1977 followed by Canada and some European countries: Deborah Carrow, Crime Victim Compensation (1980); David Miers, ‘The Provision of Compensation for Victims of Violent Crime in Europe’ (1985) 10 Victimology 662.

[17] Margaret Thornton, ‘Neo-liberalism, Discrimination and the Politics of “Ressentiment”’ (2000) 17(2) Law in Context 8, 11.

[18] See Duff, ‘The Measure of Criminal Injuries Compensation’ above n 2, 106.

[19] See Thornton, above n 17, 10.

[20] Cec Brahe, Review of the Victims Compensation Act (1993).

[21] Ibid 15.

[22] A tariff approach guides the judiciary in their calculation of an award for non-pecuniary loss with a table of amounts to be awarded for particular specified injuries. Most workers compensation schemes use a tariff model of awarding compensation. See also Sporting Injuries Insurance Act 1978 (NSW), which adopts a tariff model. However, in criminal injuries compensation schemes in Australia only Queensland and New South Wales have adopted a tariff approach.

[23] A discretionary approach leaves the assessor to determine the amount of non-pecuniary award up to the statutory maximum of the particular scheme. All criminal injuries compensations schemes in Australia, other than New South Wales and Queensland, have adopted this model.

[24] Victims Support and Rehabilitation Act 1996 (NSW) sch 1.

[25] In 1998 the Victims Compensation Amendment Act 1998 (NSW) widened the counselling provisions so that victims who had suffered an injury within the meaning of s 5 but not a ‘compensable injury’ within the meaning of s 7 could still access counselling services.

[26] See New South Wales, Parliamentary Debates, Legislative Council, 15 May 1996, 974 (Jeff Shaw, Attorney-General). The Attorney-General identified the principal aims of the new scheme as follows:

to place greater emphasis upon the rehabilitation of victims of violent crime, through the provision of appropriate counselling; to ensure that awards of compensation are directed toward those victims suffering the most serious injuries; and to address the escalating costs of the scheme such that the genuine needs of victims are met at a reasonable cost to the community.

In 2000, the Victims Compensation Amendment Act 2000 (NSW) was passed changing the name of the New South Wales Act to the Victims Support and Rehabilitation Act 2000 (NSW) (removing the term ‘compensation’ and replacing it with ‘support and rehabilitation’).

[27] New South Wales Joint Select Committee on Victims Compensation, First Interim Report: Alternative Means of Providing for the Needs of Victims of Crime (1997) 9.

[28] See the statements in New South Wales, Parliamentary Debates, Legislative Council, 15 May 1996, 976, 977 (Jeff Shaw, Attorney-General).

[29] New South Wales Joint Select Committee on Victims Compensation, Report: Inquiry into Psychological Shock (1999) 16.

[30] Note that the range in Category One was initially $2500–$10 000 but the threshold was raised in 2000 to $7500: Victims Compensation Amendment (Compensable Injuries) Regulation 2000 (NSW) sch 1.

[31] See Duff, above n 2, 133 who uses the terms victim-centred and offence-based to describe similar approaches to awarding compensation in the English jurisdiction.

[32] Ibid.

[33] See Forster, above n 3; New South Wales Combined Community Legal Centres, above n 3.

[34] GM v Victims Compensation Fund (Unreported, Sidis J, 18 June 2003) 9.

[35] GM [2004] NSWCA 185 (Unreported, Mason P, Ipp JA, McColl JA, 16 June 2004) [115].

[36] GM v Victims Compensation Fund (Unreported, Sidis J, 18 June 2003) 11.

[37] GM [2004] NSWCA 185 (Unreported, Mason P, Ipp JA, McColl JA, 16 June 2004) [135].

[38] Ibid [137].

[39] See discussion in above n 25.

[40] GM [2004] NSWCA 185 (Unreported, Mason P, Ipp JA, McColl JA, 16 June 2004) [120].

[41] Interpretation Act 1987 (NSW) s 33.

[42] Patrick Parkinson, Tradition and Change in Australian Law (2nd ed, 2001) 209.

[43] Interpretation Act 1987 (NSW) s 34(2)(e).

[44] See Parkinson, above n 42, 210.

[45] The Joint Select Committee on Victims Compensation was established after the introduction of the VSRA to review the changes that had been made to criminal injuries compensation. The three publications that ensued from the Committee and referred to by the Court of Appeal are not extrinsic sources within the meaning of the Interpretation Act 1987 (NSW) since they were published after the passing of the VSRA. Nevertheless one of the Reports was utilised by the NSW Court of Appeal in their reasoning. Joint Select Committee on Victims Compensation, Second Interim Report: The Long Term Financial Viability of the Victims Compensation Fund (1997). Joint Select Committee on Victims Compensation, Report: Inquiry into Psychological Shock, above n 29; Joint Select Committee on Victims Compensation, Report: Ongoing Issues Concerning the NSW Victims Compensation Scheme (2000).

[46] When the Bill was presented to parliament for its final reading, Jeff Shaw stated that ‘the categories of sexual assault in the schedule have been introduced to recognise the particular needs of this group of victims’: New South Wales, Parliamentary Debates, Legislative Council, 15 May 1996, 976 (Jeff Shaw, Attorney-General). See also Brahe, above n 20, 18, 21, 41.

[47] See Joint Select Committee on Victims Compensation, Second Interim Report, above n 45, 44.

[48] See Joint Select Committee on Victims Compensation, above n 29, 8.

[49] Joint Select Committee on Victims Compensation, Report: Ongoing Issues Concerning the NSW Victims Compensation Scheme (2000) 9.

[50] Dr E Elms (Seminar on Criminal Compensation Claims, 1992), cited in Joint Select Committee on Victims Compensation, above n 29, 16.

[51] See Majury, above n 5, 417. See also Morgan, above n 5.

[52] See Majury, above n 5, 417.

[53] The Australian Bureau of Statistics recorded that, on a national level, 15 630 sexual assaults were reported to authorities in 2000. They also recorded that 79% of the victims who reported a sexual assault were female and that 99 per cent of the offenders were male: Australian Bureau of Statistics, Recorded Crime (2000). The Report covered the period from 1 January 2000 to 31 December 2000.

[54] See Julie Stubbs, ‘Sexual Assault, Criminal Justice and Law and Order’ (2003) Practice and Prevention: Contemporary Issues in Adult Sexual Assault in NSW <http://www.agd.nsw.gov.au/cpd.nsf/> at 6 November 2005.

[55] There has not been in Australia the surge of litigation in the tort of battery seen in the Canadian jurisdiction: see Bruce Feldthusen, ‘The Canadian Experiment with the Civil Action for Sexual Battery’ in Nick Mullany (ed) Torts in the Nineties (1997) 274. However see also the successful case of W and W; R and G (by their next friend P) (Intervener) (1994) 17 FLR 751, in which two girls successfully sued their stepfather in battery for sexual abuse and received $97 000 and $80 000 respectively for pain and suffering, emotional shock, post traumatic stress disorder, anxiety and depression. See also Paten v Bale [1999] QSC 317 (Unreported, Wilson J, 19 October 1999) where the plaintiff successfully sued a neighbour in battery for sexual abuse over a two year period between the ages of seven and nine. She suffered chronic post traumatic stress disorder, chronic depressive disorder, sexual aversion disorder and an unspecified personality disorder and was awarded a total of $183 282 including $120 000 for future economic loss.

[56] Christine Forster, ‘The Failure of Criminal Injuries Compensation Schemes for Victims of Intra-Familial Abuse: The Example of Queensland’ (2002) 10(2) Torts Law Journal 143, 150.

[57] See Julia Cabassi and Amanda George, ‘Remembering Childhood: Time Limitations the Hurdle for Childhood Sexual Assault Survivors Seeking Compensation’ [1993] AltLawJl 114; (1993) 18(6) Alternative Law Journal 286, 288.

[58] See Jarvis and McIlwaine, above n 7.

[59] See P v South Australia (1992) 60 A Crim R 286, 290.

[60] See Judith Cohen and Anthony Mannarino, above n 6; Einbender and Friedrich, above n 6.

[61] See Paul Mullen and Jillian Fleming, ‘Long Term Effects of Child Sexual Abuse’ (1998) 9 Issues in Child Abuse Prevention <http://www.aifs.gov.au/nch/issues9.html> at 6 November 2005; Finkelhor et al, above n 6.

[62] See Judith Herman, Father, Daughter Incest (1981).

[63] S E Romans et al, ‘Sexual Abuse in Childhood and Deliberate Self-Harm’ (1995) 152 American Journal of Psychiatry 1336.

[64] Chaffin, Wherry and Dykman, above n 6.

[65] GM [2004] NSWCA 185 (Unreported, Mason P, Ipp JA, McColl JA, 16 June 2004) [126].

[66] See Harold Luntz and David Hambly, Tort Cases and Commentary (5th ed, 2002) 87.

[67] See Francis Trindade and Peter Cane, The Law of Torts in Australia (3rd ed, 1999) 23.

[68] See Dennis Pearce and Robert Geddes, Statutory Interpretation in Australia (5th ed, 2001) 66; See also Martin Dixon, Textbook on International Law (2001) 98.

[69] UN Division for the Advancement of Women <http://www/un/org/womenwatch/daw/cedaw> at 6 November 2005.

[70] Formal equality is the requirement that legal rules should apply in the same way to all members of the community regardless of sex, race, sexuality or any other characteristic. See Australian Law Reform Commission, Equality Before the Law: Women’s Equality, Report No 69 (1994) [3.8]. Research has illustrated the limitations of formal equality to achieve actual equality for women.

[71] Substantive equality refers to ‘actual’ equality: see Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with Law in India (1996) 176.

[72] See Rea Abuda Chongsun ‘Non Discrimination and Gender Equality’ (Presentation on behalf of International Women’s Rights Action Watch Asia Pacific (IWRAW-AP), given at the Regional Consultations on the Interlinkages between Violence Against Women and Women’s Right to Adequate Housing, in Co-Operation with the UN Special Rapporteur on Adequate Housing, New Delhi, India, 28– 31 October 2003).

[73] See, eg, C v BC; D v BC (Unreported, Supreme Court of Western Australia, Murray J, 5 June 1997); R v C [1982] 2 NSWLR 674; C v C [1993] NTSC 6; (1993) 111 FLR 467; KAB v DJB [2000] Q SC 498 (Unreported, Atkinson J, 22 December 2000); R v Tamcelik; Ex Parte Ozcan [1998] 1 Qld R 330; ‘H’, ‘B’, ‘E’ v Crimes Compensation Tribunal [1997] 1 VR 608; ‘E’ v ‘P’; ‘T’ v ‘P’ (Unreported, Supreme Court of Western Australia, McKechnie J, 10 December 2001); ‘F’ v ‘H’ (Unreported, Supreme Court of Western Australia, Nicholson J, 27 August 1992); ‘J’ v Petterson (Unreported, Supreme Court of Western Australia, Scott J, 20 September 1994); Komon v Podirsky and the Undersecretary for Law (Unreported, Supreme Court of Western Australia, Rowland J, 12 June 1991); ‘L’ v ‘L’ [1999] WA SC 262 (Unreported, McKechnie J, 1 November 1999); ‘L’ v ‘W’ (Unreported, Supreme Court of Western Australia, Murray J, 22 April 1993); ‘M’ v’ J’; ‘J’ v ‘J’ (Unreported, Supreme Court of Western Australia, Scott J, 4 November 1992); M v Hoogwerf [1998] WA SC 380 (Unreported, Miller J, 14 December 1998); ‘McD’ v Edwards (Unreported, Supreme Court of Western Australia, Heenan J, 10 October 1997); ‘O’ v ‘J’ (Unreported, Supreme Court of Western Australia, Wallwork J, 13 February 1992); ‘V’ v ‘W’; ‘A’ v ‘W’ (Unreported, Supreme Court of Western Australia, Walsh J, 23 March 1993); ‘X’ v ‘Y’ (Unreported, Supreme Court of Western Australia, Parker J, 13 September 1996).

[74] See Brahe, above n 20, 13.

[75] See Nora West, ‘Rape in the Criminal Law and the Victim’s Tort Alternative: A Feminist Analysis’ (1988) 50(1) Toronto Faculty of Law Review 96, 98. See also Jennifer Temkin, Rape and the Legal Process (2nd ed, 2002) 347.

[76] See Jarvis and McIlwaine, above n 7, 148.

[77] See Victims Support and Rehabilitation Act1996 (NSW) s 3(a) (‘Objects of the Act’).

[78] See Freckelton, ‘Compensating the Sexually Abused’, above n 7, 196.

[79] Quoted in Victoria, Parliamentary Debates, Legislative Assembly, 21 November 1996, 1454 (John Thwaites).

[80] Judith Herman, Trauma and Recovery: From Domestic Abuse to Political Terror (1992) 70.