April is sexual assault awareness month, and it is important to know your rights to compensation if you have been a victim of a sexual offence.
Sexual offences in Western Australia are governed by the Criminal Code Compilation Act 1913 (“Criminal Code”).
Sexual offences include, but are not limited to:
- Indecent sexual assault;
- Aggravated indecent sexual assault;
- Sexual penetration without consent (rape);
- Sexual coercion (compelling another person to engage in sexual behaviour); and
- Online sexual harassment and posting intimate images without your consent.
In some circumstances, a claim for compensation can also be made where a person has breached a Family Violence Restraining Order, whether or not the breach involved a sexual offence.
Lodging a claim with the Office of Criminal Injuries Compensation:
To be eligible for criminal injuries compensation, you need to have reported the sexual offence to the police or be willing to report it. If you have not reported the offence and wish to claim compensation, you will need to demonstrate that failing to report was reasonable, for example, because of a legitimate fear of retribution in family violence cases or because the victim sustained brain damage or amnesia.
You must have also sustained loss or damage because of the offence.
It is your decision to report a sexual offence to the police. We understand that reporting a sexual offence or telling anyone in general can be a difficult thing to do. If you can, we encourage you to speak to a close friend or family member about what happened to you, so they can support you through the reporting process.
Remember that it is never a victim’s fault they were subjected to sexual violence, no matter the circumstances. Reporting sexual offences and speaking to people who can provide support needs to be normalised. We want to help this happen.
Criminal injuries compensation may cover:
- medical or psychological expenses including the costs of reports and medical treatment over and above benefits paid by Medicare or private health insurance;
- pain and suffering;
- loss of enjoyment of life;
- loss of income; and
- other incidental expenses (such as travel for medical treatment and loss/damage of clothing, footwear or aids).
You may also claim interim payments for treatment or medical reports before your application is finalised. For example, if you need to see a psychologist for the trauma you have experienced, you may claim interim payments so you do not experience financial detriment due to the costs of treatment.
You have 3 years to claim compensation from the date of the offence. Extensions can be granted in certain circumstances. You may also claim compensation even if a person has not been identified, charged or convicted of the offence.
You can also claim compensation through Court Ordered Compensation or Restitution, or Civil Action for Damages. These options have not been covered in this article but can be explored with one of our lawyers if they are appropriate for your circumstances.
What does the law say about the concept of “consent”?
There is a big conversation about “consent” at the moment and there appears to be some misunderstanding about what consent means.
Section 319(2) of Criminal Code defines consent:
“consent means a consent freely and voluntarily given… consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means… a failure by a person to offer physical resistance does not of itself constitute consent to the act.”
To avoid doubt:
- no means no;
- consent is voluntary, enthusiastic and clear;
- consent is ongoing (meaning you can reverse your consent at any time);
- if you are inebriated, you may not give consent; and
- failure to say no, does not mean yes.
You are entitled to claim compensation if you have been the victim of a sexual offence and because of your injuries you require ongoing physical or psychological treatment.
If you, or someone you know has been the victim of sexual violence, see one of our experienced lawyers for a free confidential, no obligation introductory consultation. You are more than welcome to bring your support friend or family member with you to the initial appointment, and we can start the process together.
This article was written by Jasmine Moran,
Lawyer specialising in Wills, Estate Planning and Injury Law