As anybody who has made an application to the Criminal Injuries Compensation Authority (CICA) will know, the authority have the right to refuse an award if the Applicant has criminal convictions which fall within the parameters of Annex D of the 2012 scheme. These convictions can pre or post-date the date of the assault that led to the application and can, in extreme cases, be taken account of after an offer of an award has been made but before any cheque has been cashed[i].
The scheme wording is ‘will be withheld or reduced’ making it, one would think, a definitive response with no room for discretion. However the accompanying guide states that:
We may refuse or reduce a payment if you have a criminal record, even though you may have been blameless in the incident which resulted in your injury.
Regardless of whether the refusal is mandatory or discretionary it is often difficult to explain to a client that, despite any conviction being unrelated to the relevant assault, any past conviction may well still count against them. There have been reported instances of reductions from awards for convictions in relation non-payment of a tv licence and using a mobile phone whilst driving.[ii]
The notion of reducing an award due to past convictions is true regardless of the severity of the act of violence committed against an applicant. It does not matter whether it is the victim of a straightforward assault or historic and prolonged sexual abuse and rape; convictions can be taken into account when a decision is being made.
The above scenario was brought to the fore in March 2015 following newspaper coverage regarding Pauline Doyle, a woman who was gang-raped as a teenager. Following her assault she became addicted to heroin and crack, supporting her addiction by way of criminal activities.
Fortunately, in her thirties she was able to break this habit and got a job in social care helping drug users. With courage and support she was able to gather the strength to approach the police and eventually pressed charges against her attackers, some thirty years after the event. She also made an application to the Criminal Injuries Compensation Authority.
An award was initially refused on the grounds of her past convictions but upon appeal, based upon evidence and arguments that her criminal activities stemmed from the abuse i.e. the basis of her application, she received two thirds of the standard tariff award for her injuries following the crimes committed against her.
In response, arguments have been put forward that victims of rape should not be subject to reductions regardless of any post incident convictions, with some commentators going further and stating that pre-incident convictions should be ignored too.
The situation is far from clear-cut and it is suggested there are two scenarios that need to be considered.
Crimes committed after the assault – It is not uncommon for the victims of rape and sexual assault to suffer severe traumatic psychological reaction to their ordeal, which can lead to antisocial behaviour and criminal activity.
The writer is of the opinion that the overall behaviour and conduct of the individual should be assessed, with greater tolerance being given to those who, as a result of the incident, develop antisocial problems leading to criminal behaviour rather than those who simply commit a crime that is unrelated. By way of example would it be fair that a victim of rape who boldly and calculatedly commits white-collar crime at work be given complete dispensation absent a clear connection between the original assault and the subsequent crime?
Crimes committed before the assault – Is it fair that those who have had a life of crime for whatever reason should have the “slate wiped clean” if sexually assaulted, but not those who may, say, be more seriously injured as a result of a non-sexual assault?
Are we at the point of attributing to the victim a status and level of victimhood beyond all other victims of crimes of violence? There is no dispute that rape and sexual assault are rightly seen as heinous crimes but do they trump all others?
As can be seen there is a school of thought that seems to suggest that the crimes of rape and sexual assault are to be regarded as the absolute crime with victims being given complete absolution for any criminal behaviour. A supporter of this position is Lisa Longstaff (Women Against Rape)[iii] who has stated “This system penalises the poorest victims when it should be helping them.
“Compensation is often the only official acknowledgement you get, given the appalling conviction rate for rape. It can help with security, healthcare or whatever else victims need to feel safer and recover.
“There should be no reduction in payments because someone has a conviction before or since the rape.”
Whilst being able to agree with much of what Lisa says, is this a truly fair solution?
Would it not be better for there to be no blanket absolution for the victims of rape and that each and every case is treated on its merits, with the starting point being that any refusal to compensate is purely discretionary rather than absolute? This would mean that there is no special dispensation for the victims of rape and sexual assault compared to other injured victims, and that all matters are considered and judged on their individual merits.
Mike Massen - Cohen Cramer Solicitors
[i] Paragraph 26 and annex D Criminal Injuries Compensation Scheme 2012
[ii] Tbe Daily Mirror 15th February 2015
[iii] As above