New crimes compensation legislation falls short
By Sarah Lantz and Melanie Heenan
In Victoria in July 1997, the Liberal state government abolished crimes compensation awards for pain and suffering. For the majority of victim/survivors of sexual assault this meant that compensation was no longer available.
The newly elected Labor state government has announced its intention to restore pain and suffering compensation, a move immediately welcomed by sexual assault services across Victoria.
Unfortunately, the proposed legislation has fallen well short of offering an equitable model of compensation to all victims of crime. In particular, victim/survivors of past sexual assault will be ineligible to apply for compensation, as the proposed legislation is not retrospective.
Abolished
Part of the wave of economic rationalism that flooded Victoria after Jeff Kennett's 1992 election as premier, the Victims of Crimes Assistance Act (1996) abolished compensatory awards for pain and suffering, while narrowing the criteria under which victims of crime have access to state-based compensation.
Previous compensation schemes allowed for the state to award applicants up to $25,000 for "pain and suffering" experienced as a result of violent crime, in addition to costs for any medical, counselling and educational losses incurred.
The 1996 legislation limited awards to expenses actually incurred for "reasonable" counselling services, medical expenses, up to $20,000 for loss of earnings (if the loss occurs within two years of the crime) and loss of, or damage to, clothing.
Those working at Centres Against Sexual Assault (CASAs) claim that this system discriminated against victim/survivors of sexual assault. The most reported consequence of sexual assault is precisely the "pain and suffering", including fear, high levels of anxiety, depression, anger, sleeplessness, nightmares, and flashbacks. These affect social, emotional and working lives, and relationships with friends and family.
Few women incurred the kinds of expenses nominated by the new legislation, with the exception of costs of counselling.
Counselling is now provided through the Victims Counselling Scheme, through which registered private practitioners are reimbursed at $104 per session. While the scheme is relatively easy to access for the first 10 sessions, applicants have to approach the Criminal Injuries Compensation Tribunal to request reimbursement or assistance in covering the costs of additional counselling sessions.
Claims
Then attorney-general Jan Wade claimed that the changes were necessary because monetary benefits did not assist victims in coming to terms with the offence or in seeking rehabilitation and may not meet the real needs of legitimate victims.
Wade also argued that, whilst compensation payments may benefit the victims financially, awards do nothing to address psychological harm; in fact the process of applying for crimes compensation compounds the trauma experienced by victim/survivors of sexual violence.
Finally the attorney-general argued that the previous scheme did not assist all victims, given many of them were unaware of their right to apply for compensation.
Decades of research do attest to victim/survivors' reticence to report to the police or to seek compensation. The vulnerable circumstances of the victim/survivor, her sense of dis-empowerment and fear of retaliation, make reporting sexual assault, at the very least, a daunting prospect.
Monetary payments to victim/survivors cannot assuage and resolve the damage of sexual assault. However, they do provide a welcome relief from unanticipated expenditures that victim/survivors often have to make and they provide a tangible expression of society's sympathy and concern. Those who work with victim/survivors have no doubt that compensation helps their psychological well-being.
It is also a social and moral responsibility to compensate victims of violent crime, advocates claim, which is a form of reparation for society's inability to protect people from violent crime. It was this responsibility that Wade sought to avoid.
Further, the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power commits member states to provision of compensation to victims of crime and their families in cases of significant physical or mental injury. The Victorian legislation clearly violated this principle.
Proposal
Those who work with victim/survivors of sexual assault are angered by two aspects of the new legislation put forward by Labor attorney-general Rob Hulls.
The legislation will apply only to crimes committed after the legislation is enacted, denying many victim/survivors any access to compensation awards.
The legislation is also only likely to set aside a minimal amount of money for compensation. The Labor Party's legal policy identified an amount of only $10 million in the first year to cover the cost of reintroducing pain and suffering awards.
Marg D'Arcy, the manager of CASA House, described the lack of retrospectivity as "intolerable". "It continues to silence those whom the justice system, and the community at large, have historically failed", she told Green Left Weekly.
The limited scope allowed for compensation claims will discriminate against victim/survivors who were children at the time of the assault and those who have since recovered memories of crimes of violence.
D'Arcy maintains, "For this government to uphold its stated commitment to reinstatement of a fair, equitable and just system of compensation the proposed legislation must be changed. The lack of retrospectivity is inherently discriminatory and the level of payments proposed is insultingly low."
In the past, many victim/survivors reported sexual assault to qualify for compensation, thereby stimulating criminal investigations. With the demise of pain and suffering awards, and the removal of incentive, victims may be more reluctant to report to the police. This means fewer investigations and fewer perpetrators being charged.
In light of the Labor government's failure to offer an equitable system of criminal injuries compensation, Victorian CASAs have reconvened the Real Crimes Compensation Coalition (RCCC). The first meeting of the RCCC will be held on Wednesday March 29 at 6.00pm at the YWCA, 489 Elizabeth St, Melbourne. For further details, phone 9347 3066.
[Sarah Lantz and Melanie Heenan are counsellor advocates at the Centre Against Sexual Assault.]