Compensation for Abuse Survivors
In previous years the barriers have been high for survivors of abuse to seek redress from individuals, government departments and religious institutions. Recent changes to the laws in South Australia have removed the time limit within which a claim can be made and have expanded the definition of ‘child abuse’ from sexual abuse to any serious abuse.
There are a number of avenues available for survivors of sexual abuse to commence claims against perpetrators, government bodies or religious institutions. Websters Lawyers have an experienced team to provide advice on the most appropriate method to seek compensation.
INSTITUTIONAL SEXUAL ABUSE - NATIONAL REDRESS SCHEME
In November 2012, Prime Minister Julia Gillard made a recommendation to the Governor-General that a Royal Commission be heard into the institutional responses to child abuse. In 2013 the Governor-General ordered a Royal Commission which culminated in a report being published on 15 December 2017.
The final report contained multiple recommendations, in particular, a recommendation that a National Redress Scheme be enacted enabling survivors of institutional sex abuse to commence claim against various government institutions.
The proposed National Redress Scheme offers survivors of sexual assault payments of up to $150,000.00 where the abuse occurred whilst the child was in the care of any organisation or group of people.
Currently the South Australian Parliament is attempting to fast-track the National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018 (“the Bill”) to enable survivors to seek redress for injuries sustained as a consequence of sexual abuse whilst in institutional care only.
Applications into claims under the Bill are open from 1 July 2018 until 30 June 2028.
In the event an institution has closed or is unable to pay, the State Government will offer redress for victims.
The National Redress Scheme will hopefully eliminate the need for costly and potentially protracted litigation and will reduce the hurdles survivors face in order to seek compensation.
In the event a survivor of sexual abuse is not eligible to commence a claim under the Bill, there are other options available to seek redress.
SOUTH AUSTRALIAN REDRESS
In South Australia a survivor of sexual abuse is able to commence proceedings for redress against the offender in their personal capacity, the governing body or the employer of the offender. Survivors are might also be able to commence civil proceedings against religious institutions which is discussed below.
A survivor of sexual assault will be able to commence an action battery, assault and trespass to person. These are known as strict liability torts. The standard of proof for civil claims for sexual abuse must be greater than the balance of probabilities meaning that a Court must be strongly convinced that the offending occurred. This is different than criminal jurisdictions where you must prove that the offence occurred beyond a reasonable doubt.
Civil proceedings can be commenced even if the offender is found not guilty of an offence.
On 18 September 2018 the State Government passed the Limitation of Actions (Child Abuse) Amendment Act 2018. This legislation now enables any survivor of sexual assault to bring an action for damages if their action was previously statute barred under the Limitations of Actions Act 1936 (SA).
In 2011, the Mullighan Inquiry published and addressed the severity of sexual abuse in South Australia. The Mullighan Inquiry interviewed hundreds of survivors of sexual abuse and found that the average timeframe for an individual to initiate a civil claim was in excess of 30 years.
The recent amendment now enables survivors of serious abuse to seek redress without facing the uphill battle of addressing the limitations issue.
VICTIMS OF CRIME COMPENSATION APPLICATION
If a conviction is recorded against an offender or the offender is unknown a survivor of sexual abuse is able to commence a Victims of Claim Compensation Application.
Claims for offences are limited to the following maximum amounts:
• Offences occurring from July 2017 to current - $100,000.00;
• Offences occurring from 1 September 1990 to June 2017- $50,000.00;
• Offences occurring from 1 August 1987 to 1 September 1990 - $20,000.00;
• Offences occurring from 1978 to 1 August 1987- $10,000.00;
• Offences occurring from 1975 to 1977- $2,000.00 and;
• Offences occurring from 1969 to 1974 - $1,000.00.
The Crown Solicitors Office will meet the legal costs and disbursements (expert reports, treatment etc) associated with Victims of Crime Compensation Applications.
As the average timeframe for a survivor to report an offending or initiate proceedings is in excess of 30 years, a Victims of Crime Compensation Application may result in a minimal payout if the offence occurred prior to 1987.
Rather than accepting a nominal award of damages, a survivor is able to bring an application with the Attorney General for an ex gratia payment.
THE MULLIGHAN INQUIRY
The Mullighan Inquiry established an ex gratia payment for individuals who are able to prove that they have been subject to sexual abuse.
Ex gratia applications are capped at $50,000.00.
Ex gratia applications are commenced similarly to civil proceedings however the success is determined by the Attorney Generals Department rather than a Judge or Magistrate.
Survivors of sexual assault are able to commence a claim against religious institutions for losses however these actions can often be problematic.
Most religious institutions hold their assets in property trusts meaning that if a survivor is successful against a religious institution, there may be no assets available for distribution.
Some religious institutions now have internal processes to address claims for sexual assault. Depending on the institution, there are individuals in charge of assisting survivors with redress. It is strongly recommend that a solicitor is instructed in pursuing such claims.
Some religious institutions cap their payments of redress at $200,000.00 however these payments are up to the discretion of the religious institution.
Websters Lawyers have had success acting on behalf of multiple survivors of sexual abuse. Whilst there are many avenues in which survivors can seek redress, it is recommended that you engage one of our experienced solicitors to assist with your claim.
Websters Lawyers offer a free initial interview to provide advice as to the most appropriate avenues in which a survivor of sexual assault can take to seek redress.
HOPE FOR SURVIVORS OF ABUSE
The recent highly reported outcome of the George Pell case is seen by many survivors of sexual abuse to be a significant step towards providing assurance that they will be heard. The recent removal of a limitation period within which survivors of historic sexual abuse can take legal action has opened the way for many who have previously been unable to seek any form of redress to now take action.
The consequences of abuse are significant and lasting, affecting both the physical and psychological wellbeing of those subjected to it. For many it has resulted in a reduced ability to interact with others or to earn a living. Websters Lawyers provide help to numerous survivors of abuse to claim damages against perpetrators, their employers, the government or other institutions. We provide a free consultation to enable those who are unsure about what’s involved to understand their legal rights and assist those who want to take action to take that first step.
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