Same Roof Rule is finally defeated, overturning decades of injustice

Victims of sexual violence win Appeal Court victory

A landmark Appeal Court ruling on 24 July 2018 has reversed decades of injustice, upholding for the first time a claimant’s right to compensation even though she lived under the same roof as her attacker at the time.

The Appeal Court decided that the woman, identified as JT, who suffered years of serious sexual abuse by her stepfather when she a child, was entitled to compensation. The woman had been denied the right to damages because she shared a home with him at the time. Another victim of her stepfather who didn’t live with him did previously received compensation.

JT’s stepfather repeatedly abused her between the ages of four and 17. He was convicted in 2012 of eight offences, including rape and sexual assault, and imprisoned for 14 years.

Until now the Criminal Injuries Compensation Authority (CICA), which pays damages to victims of violent crime, has refused victims like her any payout because of the unfair same roof rule which denied compensation to victims who lived in the same home as their attacker before 1979 Hundreds of victims – mostly raped by fathers and husbands – will now be able to get redress.

The judges said the so-called “same-roof” rule, is “incompatible” with human rights laws.
Lord Justice Leggatt, who heard the appeal with Sir Terence Etherton and Lady Justice Sharp, said the rule was “arbitrary and unfair”. He said:

“A scheme under which compensation is awarded to [the other victim] but denied to JT is obviously unfair.
“It is all the more unfair when the reason for the difference in treatment – that JT was living as a member of the same family as her abuser, whereas [the other victim] was not – is something over which JT had no control and is a feature of her situation which most people would surely regard as making her predicament and suffering even worse.”

The reason given for the rule at the time was that abusers should not benefit from compensation paid to the victims they lived with, particularly in domestic violence. After years of criticism and campaigns, including by Women Against Rape, the law was altered in 1979 so that any future victims of such domestic crimes could claim compensation; but the change was not applied retrospectively.

Other reforms were made in 2012 following the government’s stated intention to save £50million from the Scheme. The same-roof rule was maintained because scrapping could increase the number of claims.

Alissa Moore, who waived her anonymity, was refused compensation while her sister, whose abuse continued after 1979, made a successful claim, and has campaigned together with WAR said today:

“I’m overwhelmed by this case. But it’s not just this rule – many people are turned down under other rules, like those with unspent convictions. The whole rule book needs rewriting. Nobody should be made to feel worthless as you do when you get a CICA refusal letter. We already were made to feel worthless our whole lives.”

Lisa Longstaff of Women Against Rape hailed this case as:

“A breakthrough for all those who have suffered horrific sexual abuse before 1979 and had been denied official acknowledgement and damages to help them recover. Most of them are victims of rape by fathers or older brothers who were unable to escape or report it until years later. Even though many had taken the enormous step to get their attacker investigated and convicted, the government continues to deny them compensation. We are really pleased the campaigning has paid off.”

WAR, backed by over 40 organisations, lawyers and other professionals, calls on the government to now tackle all the other injustices by CICA suffered by people who have been raped or abused, whether as children or as adults. (see http://againstrape.net/open-letter-for-compensation-to-secretary-of-justice)

JT’s case was brought in England and Wales. There are other challenges to the rule in Scotland and Northern Ireland. The Independent Inquiry into Child Sexual Abuse recommended in its interim report in April that the rule be scrapped.

Press Release: Criminal injuries compensation awards – rules designed to exclude rape victims

PRESS RELEASE . . . PRESS RELEASE . . . PRESS RELEASE . . . PRESS

Women Against Rape says hundreds of vulnerable victims of rape and other sexual offences are denied statutory help as a result of rules designed to exclude as many victims as possible from compensation.

The new figures we release today come from an analysis of victims we helped to apply to the Criminal Injuries Compensation Authority (CICA) or to appeal a refusal in the past five years (2012-2017). We found that victims often cannot apply without help through complex and rigid rules, and that many are so traumatised by the CICA refusal that they don’t appeal.

OUR FIGURES

Of 75 applicants, 20% were refused any award. In most cases the refusals were made despite the attacker having been jailed for the rape. In other cases, women were unable to get their attacker jailed and this was used to refuse them compensation, despite CICA needing a lower standard of proof (on the balance of probabilities) than that required for a criminal conviction (beyond reasonable doubt).

In half these cases, the rules had been set by Parliament, leaving CICA officials no discretionary power, whatever the circumstances. These rules are:

1. “Same Roof Rule”: Victims raped before 1 October 1979 by someone living in their household are not entitled to compensation[1]. Five (6.6%) of the women we worked with were refused under the Same Roof rule. Nationally, 174 such claimants have been refused since 2012. (FOI question, 2017.) These are truly distressing refusals; mostly of people who were raped as children by their own father. Most of them recently got their attacker jailed, after years of suffering, but despite this are still denied compensation.

Alissa Moore, who waived her anonymity, was denied an award because she moved out of the family home before October 1979, thus ending her father’s abuse. She said that when she was refused an award in 2015, “I was so crushed and shocked, it took me a couple of years to recover.”

Another woman’s Same Roof case is listed for the Court of Appeal on 13-14 June.

2. Victims with criminal convictions are often refused compensation – 11% of applicants we helped had been refused or suffered a substantial reduction of compensation under this rule. Nationally, figures obtained by Harriet Agerholm of The Independent show at least 398 victims of sex abuse have been refused payments since January 2015 because they had been convicted of a crime.

Kim Mitchell waived her anonymity when she was refused an award some months ago, for sexual assault when she was eight by her teacher. This refusal was based on an unspent conviction – she was given a community sentence for threatening her employer who had withheld a substantial amount of wages due. She said, “I didn’t commit a crime aged eight. The disbelief and injustice I faced has been just as traumatizing as the assault itself.”

Among other cuts to the Scheme in 2012, Parliament made rules even more punitive. Now, applicants can’t get compensation if they have any unspent criminal conviction, even for minor offences such as not paying a TV license, underage drinking, or a minor altercation – offences not serious enough to send one to prison. This is punishing very vulnerable victims who were raped or sexually assaulted as children, like Kim Mitchell. It is unjust to deny compensation for the violent crime of rape for such minor misdeeds. Rape victims are punished twice: first by criminal proceedings against us, and then by the compensation scheme. Imagine if everyone with a minor conviction was suddenly refused NHS treatment, housing or schooling!

An interim report from the Independent Inquiry into Child Sexual Abuse released in April recommended that the Same Roof Rule be abolished and that criminal convictions resulting from abuse should not be used to deny compensation.

In the other half of our cases, victims fell foul of CICA’S harsh discretionary and biased decision-making. Echoing Theresa May’s hostile environment for immigrants, decisions at CICA have similarly become less compassionate, under the 2012 drive to cut costs. So much for government claims to support victims of domestic and sexual violence.

Rules that give CICA wide discretion are often used in a discriminatory way against victims of sexual crime, such as:

• being deemed to have consented to sex with an adult man despite being well below the age of consent (a 2017 campaign forced them to stop this);
• not applying within the two-year limit;
• pulling out before trial (called “not co-operating with a prosecution”);
• being disbelieved, sometimes on the basis of hostile police evidence following a careless or biased investigation.

Last year Dr Olivia Smith, of Anglia Ruskin University, published research having interviewed 25 independent sexual violence advisers (ISVAs) who had helped thousands of rape victims. Like us, Smith found that eligibility rules “impact more on vulnerable survivors.”

Immoral conduct like soliciting should not be used to reject claims, but some of the ISVAs Smith spoke to said this regularly occurs. Sex workers are among those who face social stigma, including at CICA. This echoes our experience that prejudiced CICA officers can unfairly deny victims of violence an award. While some victims are considered blameless, others are held partly responsible for being attacked, labelled “bad conduct” by CICA. This is just victim-blaming, with judgements dividing women into “good” and “bad” victims. Nobody should be blamed for sexual violence against them.[2]
WAR’s campaign for change represents hundreds of victims across the UK, and their supporters. Spokesperson Lisa Longstaff said,

“There is ample evidence of a pattern of discrimination against victims of sex crimes. We can’t allow this institutional injustice to continue. In campaigning together, survivors learn about each other’s cases, make connections and find they are not alone in having been refused. We spoke out when Parliament harshened the rules in 2012. Now it must revoke them.”

We win 95% of claims on first application or on appeal, but many women have nobody to help them. WAR wrote to the government in July raising five punitive rules under which victims of rape are unjustly refused compensation. The MOJ replied that it has no plan to address these issues. However, last year they backed down following a public outcry after five national charities publicised that CICA had denied compensation to over 700 people raped when they were under 16, claiming they had consented, despite being under the legal age of consent.

In the age of #MeToo and #Time’s Up social media campaigns, government claims to care about sexual and domestic violence are not credible. We have sent an Open Letter signed by over 20 organisations and over 40 lawyers, academics and other individuals calling on government to ensure compensation is no longer denied to victims of rape and other violence.

NOTE to Editors: Since 1964, CICA has administered State payments to victims of crime, providing cash help according to their injuries. Given that the conviction rate for reported rape is just 6%, compensation may be the only official acknowledgement available to most victims. Official acknowledgement is vital for healing and future wellbeing. The money can help with costs resulting from injury, for example, specialist health treatments. CICA’s total spending has dropped significantly – from £440m in 2012 to £143m last year. [Source: The One Show, BBC TV, 20 March 2018]

Footnotes:
1. The Rule was overturned but was not made retrospective for crimes that occurred before 1 October 1979.
2. The introduction to the online guidance for the 2012 Scheme says it is to compensate “blameless victims of violent crime”.

Recent cases in which WAR assisted victims to appeal and to speak out

Kim Mitchell was refused compensation for sexual abuse by her teacher when she was eight. CICA said her minor unspent conviction made her ineligible. On review, CICA upheld its refusal.

Alissa Moore, whose father was jailed in 2015 for 24 years for multiple child rape, was refused compensation as the crimes were before 1 October 1979 when they lived in the same house (‘Same Roof’ rule). Her sister whose abuse continued after 1 October 1979 won compensation.

Ms A, now in her 50s had been raped at age 13 by her adult brother, and she bore a severely disabled child. Years later (after their mother died) she reported it, and on DNA evidence the man got a 25 year sentence. She was refused compensation as they briefly lived in the same house at the time of the rape (‘Same Roof’ rule). An appeal upheld the refusal.

In 2016 WAR gave evidence in a path-breaking judicial review that overturned a 40% reduction made to a woman who had pulled out before the trial of her rapist husband under pressure. She had been jailed for perverting the course of justice for what the CPS called a ‘false retraction’. CICA had ruled that she failed to cooperate with the prosecution by retracting her truthful complaint of rape. The Guardian reported, ‘“We hope the CICA will accept the significant trauma this crime has caused,” said David Malone, the barrister, who acted pro bono, along with Adrian Waterman QC and solicitor Mike Hayward at Woodfines.’ He said the case clarified the law for CICA and ‘…Never again should the CICA put victims in the same position.’ However, the judge was unable to reinstate a further 30% reduction for two minor driving convictions in the traumatic months after her release from prison.

In 2015 WAR represented Ms B at a judicial review to challenge judgements by the police and the CICA appeal panel dismissing rape as ‘rough sex’. She had suffered injuries from the rape. The judge upheld her right to compensation, and sent it back to CICA for another hearing, but she was too traumatised to continue and withdrew.

A girl with mental health problems aged 13 was raped by an adult man who plied her with vodka. She had been deemed by the CICA to have consented, although she was below the legal age of consent and he had been convicted of giving alcohol to a minor. At her appeal the police gave evidence against her, and she was cross examined aggressively by the CICA lawyer. She was suicidal. We made a formal complaint. With the help of Duncan Lewis solicitors this refusal was overturned at judicial review, and she finally won an award.

A young woman raped by a cab driver was denied 30% of her compensation award as she had been later prosecuted for driving while marginally over the drink-drive limit. With our help on appeal the reduction was lowered to 20%.

Ms C who delayed applying to CICA until the trial process was over had been denied compensation because it took her over CICA’s two year limit. It is common for rape trials to take over two years to conclude. Police generally advise women to wait, as defence lawyers often raise compensation as a motive to lie. WAR helped her appeal, and she won.

Ms D whose domestic rape had not been investigated properly complained to the police. Unusually, the complaint was upheld. She was refused compensation on grounds that the CPS had ruled there was insufficient evidence to take it to trial. On appeal, she argued that the CICA is supposed to apply a lower standard of proof than the CPS and courts. She won on appeal.

We helped Ms E to fill in the application form, as she was too traumatised to do it. She won an award. Her foster father ran a children’s home, and had raped her over many years as a young child. She said, “Why do I have to prove myself to CICA, when my rapist was convicted?”

Ms F was raped by her date. She did not report it at the time as she assumed she would not be believed. She came forward when he was convicted of violence against two other women. But the investigating police officer made sexual advances to her, and she was too traumatised to continue, so she withdrew from the investigation. When she applied to CICA they refused her any award because she had failed to co-operate with the prosecution. We helped her appeal, but our written submission in her support did not succeed. She got nothing.

Please contact WAR to arrange interviews at war@womenagainstrape.net
www.againstrape.net Crossroads Women’s Centre, 25 Wolsey Mews, London NW5 2DX Tel: 020 7482 2496 Fax: 020 7267 7297

Open Letter for compensation to Secretary of Justice

Rt Hon. David Gauke
Secretary of State for Justice

 

6 June 2018

Dear David Gauke

We collectively represent the experience and demands of thousands of survivors of rape, domestic violence and sex crimes suffered as children or adults.

The Criminal Injuries Compensation Scheme is discriminating against victims of sexual crimes – even in some cases where our attacker was sent to prison. Winning justice and compensation is official recognition and a crucial step to recovery. It is particularly important for those whose attacker evaded prosecution – the vast majority of rape and domestic violence survivors.

There are several ways in which the Scheme should be updated. We appeal to your government to urgently change the following rules and practices:

1.   The Criminal Injuries Compensation Authority (CICA) denies compensation to victims who delayed reporting to the police – Paragraph 23.
Rape can be so traumatic to the victim that they may be unable to speak about it for some years. Many also experience pressure from others to stay silent.

2.   Victims below 16, the legal age of consent, are denied compensation.
The legal definition of rape is not necessarily applied by the CICA in relation to child victims. Since 2012 over 700 girls were refused compensation because the CICA decided they had ‘consented to sex’ despite being below the age of consent, and even where their attacker had been prosecuted and convicted. How can the CICA be allowed to contradict the criminal law in this way? Embarrassing publicity recently forced the government to think again about definitions of rape of children. But they only told the CICA to take ‘grooming’ into account. Not all girls who were raped by adult men were first groomed and therefore the CICA can still say they consented.

3.   Living under thesame roofwith your attacker before October 1979 disqualifies you from receiving compensation – Paragraph 19.
Before 1979 the rule was that if your attacker lived in the same household as you, you were not entitled to compensation. It denies compensation to victims even those whose rapist was convicted. The excuse was that your attacker might benefit from your award. In 1979 that rule was abolished, but it was not made retrospective. Between 2008-2013, 502 victims of rape were denied an award under this discredited rule. A significant proportion of rapes are committed by family members, and are among the most injurious. Retrospective payments must be awarded to those who have been denied.

4.   Victims of rape who have criminal convictions are denied compensation – Paragraphs 25-27.
Since 2015, at least 385 victims of sexual violence had been refused because of a conviction.[1] Unspent convictions for non-violent and minor offences, including theft, drink-driving or an unpaid TV licence are routinely used to deny victims an award. The CICA claims that the state having once prosecuted us nullifies any claim we have for compensation as it was a drain on public resources. Instead, they should value the public service we performed of bringing a rapist or other violent criminal to justice, protecting everyone’s safety. To punish us twice – first for the crime that we committed, and secondly for the crime committed against us – is discriminatory. This affects some of the most vulnerable victims, penalising those who may have been criminalised as a result of the rape trauma they have endured. Victims often self-medicate with drugs or alcohol to soothe their pain, and then get convicted. Sex workers, even those without criminal convictions, face moralistic judgements on their ‘character and conduct’. We don’t want divisive moral judgements by the CICA as either good or bad victims.

5.   Time limit – Paragraphs 87-89.
There is a two year time limit after the crime to make a claim, or if it occurred when the victim was a child, two years from our 18th birthday. This rule disregards the common delays and pressures we face in rape investigations and trials. Also, the police advise victims not to claim until the end of a trial as defence barristers often argue that compensation is a motive for a false allegation. Delays may put a claim out of time through no fault of our own. Secondly, the trauma of rape and the prosecution process prevents many victims from applying within two years. The time limit must be extended to at least five years, longer for those raped as children.

6.   Victims have to co-operate with the prosecution as far as reasonably possible – Paragraph 23.
Many drop out because of trauma, intimidation by their attacker, lack of confidence in the prosecution process, lacklustre investigation or hostility from the police. Yet the CICA rarely accepts victims’ legitimate reasons to withdraw from the prosecution – even, as in one case, the shock and fear of being sexually harassed by the police officer investigating the rape was rejected as a valid reason for the victim to withdraw. When the police are hostile and give evidence against an award, the CICA invariably values their word over the victim’s.

7.   There is no legal aid and unrepresented survivors can face hostile and upsetting questioning by CICA lawyers.
A CICA hearing can be worse than a criminal trial – with questions like, what we wore and why we didn’t scream. CICA appeals which are held in private, evading public scrutiny, have fallen behind updated protection for vulnerable witnesses in criminal courts and other hearings. The CICA internal guidance for questioning vulnerable witnesses is neither public nor transparent and thus evades legal challenge.

Compensation is often the only official acknowledgement of rape we get, given the low conviction rate of 6%. An award can speed recovery, as many women suffer catastrophic mental and physical injuries. Patients struggle to get treatment from the depleted NHS and dwindling therapeutic services – many face years on a waiting list and rationed appointments. In addition, we suffer life changing impacts such as losing a job, eviction, marital breakdown, being unable to cope with children, fear of public transport . . .

The basic award for rape is a mere £11,000, and this does not stretch far. Amounts should be increased, and decisions speeded up. There is a minefield of rules which put people off, as described above. Most don’t even know the Scheme exists or applies to them.

Yours sincerely,

signed so far by the following organisations:
Black Women’s Rape Action Project
Cambridge Rape Crisis Centre
CARA (Centre for Action on Rape and Abuse), Colchester
Cohen Cramer Solicitors, Mike Massen, Partner
Colchester & Tendring Women’s Aid
Coventry Rape & Sexual Abuse Centre (CRASAC)
Davenport & Cale Green Branch Labour Party
Disabled People Against the Cuts
Dundee Women’s Aid
English Collective of Prostitutes
Legal Action for Women
National Association for People Abused in Childhood (NAPAC)
Psychotherapists and Counsellors for Social Responsiblity
Psychologists for Social Change
Psychologists and Counsellors Union
Rape Crisis England and Wales
Rape Crisis Scotland
Solace Women’s Aid
Somerset & Avon Rape & Sexual Abuse Support
Taxpayers Against Poverty
WinVisible – Women With Visible and Invisible Disabilities

and the following individuals:

Adrian Williamson QC, Keating Chambers
Ahmed Aydeed, Director, Duncan Lewis
Alexandra Wax, Reg. MBACP, MA, Savernake Counselling, Wiltshire
Anna Rose, Psychotherapist
Avigail Abarbanel, Psychotherapist/supervisor
Bernadette McAliskey, Belfast
Cohen Cramer Solicitors, Mike Massen, Partner
David Malone, Red Lion Chambers
Dr Emma Katz, Liverpool Hope University
Helen Race, Independent Sexual Violence Adviser, Brighton
Dr Jamie Bird, Health & Social Care Research Centre Manager, University of Derby
Dr Jay Watts, Consultant Clinical Psychologist and Psychotherapist, Queen Mary, University of London
Joseph Suart, Psychoanalytic Psychotherapist UKCP registered, Cornwall
Dr Lilia Giugni, Cambridge Judge Business School, Gender & Policy Insights CEO
Dr Linda Asquith, Course Director, BA (Hons) Criminology, Leeds Beckett University
Dr Lisa Long, Senior Lecturer-Criminology, Leeds Beckett University
Molly Carroll, Hearing Voices Network & Clinical Practitioner, NHS
Dr Olivia Smith, Senior Lecturer in Criminology, Anglia Ruskin University
Dr Rachel Killean, Lecturer, School of Law, Queen’s University Belfast
Sasha Barton, solicitor
Dr Tina Skinner, Senior Lecturer, University of Bath

and 24 other individuals

Add your Organisation or law firm by emailing us –
please specify if you are signing on behalf of this organisation

Please return signed to Women Against Rape via email war@womenagainstrape.net
Or post to WAR, Crossroads Women’s Centre, 25 Wolsey Mews, London NW5 2DX

 www.againstrape.net  Twitter: #AgainstRape             Phone: 020 7482 2496

[1] ‘Hundreds of sexual assault victims refused compensation for minor convictionsIndependent; ‘Rape victims denied compensation for petty convictions’ – Guardian and ‘Hundreds of rape victims denied compensation’ Scottish Herald

 

Model letter to MPs re compensation – please use

Please adjust accordingly and send this letter to your local MP (find your MP’s name and contact details here)

[your address or email]

Dear [insert full name of MP]

As your constituent I urge you to take action to update the Criminal Injuries Compensation Scheme for victims of crime, in particular for victims of rape and other sexual violence.

I am part of a grassroots campaign of survivors who are being treated extremely unfairly by the Scheme. We are working with Women Against Rape to spell out the main ways in which the Scheme discriminates against us as women and children victims of crime.

My experience of claiming compensation was…[insert one/two paragraphs – OPTIONAL].

Winning justice and compensation is official recognition and a crucial step to recovery. We appeal to you to support our campaign to change the following rules and practices:

  1. The Criminal Injuries Compensation Authority (CICA) denies compensation to victims who delayed reporting to the police – Paragraph 23.
    As you may know, rape can be so traumatic to the victim that they may be unable to speak about it for some years. Many of us also experience shame, and pressure from others to stay silent.
  2. Living under thesame roof with your attacker before October 1979 disqualifies you from receiving compensation – Paragraph 19.
    Before 1979 the rule was that if your attacker lived in the same household as you, you were not entitled to compensation. It denies compensation to victims even those whose rapist was convicted. The excuse was that your attacker might benefit from your award. In 1979 that rule was abolished, but it was not made retrospective. Therefore, if you were raped before 1979, the discredited rule continues to apply to you. Between 2008-2013, for example, 502 victims of rape were denied an award under this discredited rule.

Since the Savile scandal more victims raped as children were encouraged to come forward, but are then denied compensation. A significant proportion of all rapes are committed by family members, and these crimes are among the most abusive and injurious. Retrospective payments must be awarded to those denied.

  1. Victims of rape who have criminal convictions are denied compensation – Paragraphs 25-27.
    Since 2015, at least 385 victims of sexual violence had been refused because of a conviction.[1] Convictions for non-violent and minor offences, including theft, drink-driving or an unpaid TV licence are routinely used to deny victims an award. The CICA claims that the state having once prosecuted us nullifies any claim we have for compensation as it was a drain on public resources. Instead, they should value the public service we performed of bringing a rapist to justice, protecting everyone’s safety. In any case, they punish us twice – first for the crime that we committed, and secondly for the crime against us. This affects some of the most vulnerable victims, penalising those who may have been criminalised as a result of the rape trauma they have endured. Victims often self-medicate with drugs or alcohol to soothe their pain, and then get convicted. Sex workers face moralistic judgements on their ‘character and conduct’, even those without criminal convictions. We don’t want divisive moral judgements by the CICA as either good or bad victims.
  2. Time limit – Paragraphs 87-89.
    There is a two year time limit after the crime to make a claim to the CICA, or if it occurred when the victim was a child, two years from our 18th birthday. This rule disregards the common delays and pressures we face in rape investigations and trials. Sexual crimes take a notoriously long time to investigate and get to and through court. Also, the police advise victims not to claim until the end of a trial as defence barristers often argue that compensation is a motive for a false allegation. Such delays may put your claim out of time through no fault of your own. Secondly, the trauma of rape and the prosecution process (often called ‘the second rape’) prevents many victims from applying within two years. The time limit must be extended to at least five years, longer for those raped as children.
  3. Victims have to co-operate with the prosecution as far as reasonably possible – Paragraph 23.
    WAR has worked with victims who were denied compensation despite being sexually propositioned by their investigating officer, and with others who got dismissive sexist or racist treatment from the police. Yet these flagrant abuses of power were not considered by the CICA as legitimate reasons for victims to withdraw from the prosecution. Also, if the police are hostile and give evidence against us getting an award, the CICA invariably values their word over the victim’s.
  4. There is no legal aid and unrepresented survivors can face extremely hostile and upsetting questioning by CICA lawyers.
    It can be even worse than in criminal courts – with questions like, what we wore and why we didn’t scream. CICA appeals which are held in private, evading public scrutiny, have fallen behind updated protection for vulnerable witnesses in criminal and other courts. The CICA internal guidance for questioning vulnerable witnesses is neither public nor transparent and evades legal challenge.
  5. Victims below 16, the legal age of consent, are denied compensation.
    So far over 700 girls since 2012 were refused compensation as the CICA decided they had ‘consented to sex’, even where their attacker had been prosecuted in criminal court. So the rape of children as defined in law is not necessarily illegal for the CICA. How can the CICA be allowed to contradict the criminal law in this way? Embarrassing publicity recently forced the government to think again about definitions of rape of children. But they only told the CICA to take ‘grooming’ into account. Not all girls who were raped by older men were first groomed and therefore the CICA can still say they consented.

As you may be aware, compensation is often the only official acknowledgement of rape we get, given the low conviction rate of 6%.

In addition, an award can speed recovery practically, as many women suffer catastrophic mental and physical injuries: years of suicidal thoughts, sleeplessness, substance abuse and the inability to relate to people. Those with mental health problems struggle to get treatment from the depleted NHS and dwindling therapeutic services — many face years on a waiting list and rationed appointments. In addition, we suffer life changing impacts such as losing a job, eviction, marital breakdown, being unable to cope with children, fear of public transport . . .

The basic award for rape is a mere £11,000, and this does not stretch far. Amounts should be increased, and decisions speeded up. There is a minefield of rules which put people off, as described above. Most don’t even know the Scheme exists or applies to them.

Please contact me urgently to discuss what you can do to help. We aim to gather a group of MPs to take action with us. Please support this campaign so that victims of sexual crimes are no longer blamed for an attack we suffered, and get the urgent help and acknowledgement we need in order to recover.

Please also copy your reply to Women Against Rape (war@womenagainstrape.net) with whom I am working against gross injustice.

Yours sincerely,

[put your name]

Copy to Women Against Rape

[1] Independent, 28 October 2017 Hundreds of sexual assault victims refused compensation for minor convictions; See also Rape victims denied compensation for petty convictions – Guardian and Hundreds of rape victims denied compensation in Scottish Herald

Campaign update – survivor Alissa Moore in Parliament

Alissa Moore, a rape survivor we are working with in our campaign for compensation got her MP Iain Stewart to raise the issues in Parliament on 23 Nov. WAR was quoted and thanked for our work. Alissa was raped from aged 7-15 by her father, yet she was refused compensation because they lived in the same house (known as the ‘same roof rule’). We urged the MP to make a broader case about victims turned down under other bad rules – and he did speak about victims with criminal records and children deemed to have consented – which is a victory!

Read the speech by the MP and the government reply here: https://hansard.parliament.uk/Commons/2017-11-23/debates/C81A68B2-0DD4-43B8-8F9A-BEF49B6373FA/SameRoofRuleFamilialSexualAbuseCases

For other legal challenges and campaigning to change the Same Roof Rule, see work by lawyer Andrew Perriman at Teesside Law Clinic.

Scottish Herald: Christina McHugh, 27, raped when she was just 11, was denied compensation because of a conviction

Scottish Herald, 4 November 2017

HUNDREDS of rape victims are being denied compensation after committing ‘minor’ criminal offences, The Herald can reveal.

It is estimated that at least 500 women have seen their claims rejected by the UK Government‘s Criminal Injuries Compensation Authority (CICA) since 2010.

The scheme, which is funded with public money, is designed to give financial payments to victims of violent crime.

But under its rules, the CICA must turn down claims for anyone given a community sentence by the courts.

The policy has been described as “cruel” by campaigners for rape victims while a leading lawyer described it as a cynical attempt to save money.

Christina McHugh, 27, was raped by a family friend when she was just 11 and went on to suffer many years of mental health problems as a result of the crime.

However, when she later applied for compensation, she was refused and told she was not entitled to the payment of up to £27,000 because of an unspent conviction.

“I was a kid when I was raped and the fact hundreds of women are turned down is completely disrespectful to what happened to us,” she said.

“People could have something brutal happen to them, but they do not get compensation because of a conviction that is completely unrelated. It is ridiculous.”

Prior to 2012 CICA rules said anyone claiming could have a compensation award stopped or reduced if a conviction made their character “inappropriate”.

But the powers of discretion were removed in 2012 and the numbers of victims missing out on compensation has risen since then.

At least 500 women have had their claims rejected since 2010, including several dozen in Scotland.

The organisation Women Against Rape (WAR) is appealing for those affected by CICA rules to join a campaign to have them changed.

Lisa Longstaff, spokeswoman for WAR, said “CICA don’t seem to be taking account of the pain and suffering that sexual offences cause people.

“It is very cruel to deny women who have suffered such a serious assault, on the basis of often very minor convictions.”

Ms McHugh was raped in 1997 by James McCracken, who was convicted of the crime in 2015 after the testimony of two other women who were sexually assaulted by him in similar circumstances was used in corroboration under the Moorov Doctrine.

Three years before making a claim to CICA, Ms McHugh was convicted of assault after intervening in a fracas in the street outside her home.

A man with a pole was advancing on two women, who she claims she was trying to protect. She was later convicted of assaulting the man.

However, in a letter, CICA said Ms McHugh’s conviction was unspent and so she was not entitled to the payment of up to £27,000 to which she might otherwise be entitled.

“I am therefore unable to make an award of compensation… please note I have no discretion,” an official at the agency wrote. “I am sorry to send what I know will be disappointing news.”

Ms McHugh is attempting to appeal the decision but has been told her bid is unlikely to be successful.

Ms McHugh said she felt her conviction was unfair, but had accepted it and completed an 18-month community payback order.

She is now backing a change in the CICA rules. “If these are the rules, I want them changed for other women like me,” she said.

Peter Garsden, a partner with Manchester-based Simpson Millar, and president of the Association of Child Abuse Lawyers, said abuse can leave people vulnerable, with mental health problems and drug or alcohol additions. All of these issues can lead people into conflict with the law, he said.

“These rules deny a lot off vulnerable, worthy individuals justice from the government,” he said.

“It is frankly appalling that the CICA want to blame the victims of abuse when the convictions were obtained a number of years after the offence they suffered.

“Particularly when people were children at the time a crime was committed against them they were blameless.

“Sexual abuse can leave people with a distrust of authority, often people blot out their experiences with addiction to alcohol or drugs, while others have mental health problems brought on by the abuse.

“CICA is passing judgement on the victims of abuse which is very unfair and unjust.”

Mr Garsden added: “I have been involved in these cases for 25 years and the scheme has got progressively more mean and unfair.”

A spokesman for the Ministry of Justice said:”There are criteria to ensure that taxpayers’ money is not paid to applicants who may have caused distress, loss or injury to another person, or committed another criminal offence, and as a result incurred costs through police investigations or court proceedings.

“As part of our work to develop a strategy for victims, we will be examining the Criminal Injuries Compensation Scheme. This work will also incorporate recommendations from the Independent Inquiry into Child Sexual Abuse.”

 

 

Hundreds of sex assault victims refused compensation due to criminal convictions

Independent

Refusing money on basis of offence records ‘a new form of victim-blaming’, says Shadow minister

The Government’s compensation body, CICA, has been routinely rejecting survivors’ claims when it emerges they have a conviction of any severity Getty

Hundreds of alleged sexual assault victims have been refused compensation because they have a criminal record, The Independent can reveal.

The Government’s compensation body, the Criminal Injuries Compensation Authority (CICA), has been routinely rejecting survivors’ claims when it emerges they have a conviction of any severity.

Offences can range from petty crimes to more serious ones, and critics say the practice is tantamount to “a new form of victim-blaming”.

Survivors of rape and other sexual crimes are able to claim money from the Ministry of Justice’s compensation authority to help them pay for expenses associated with their attack, including counselling, improving their security or moving away from their attacker.

But figures obtained by The Independent show at least 398 alleged victims of sex abuse have been refused payments since January 2015 because they were convicted of some sort of crime.

Research into the compensation process has previously found that convictions for non-violent or minor offences, including theft or failing to pay for a TV licence, are routinely used as reasons to withhold money from alleged victims.

The Independent spoke to one woman who was convicted of drink-driving a year after she was raped by a minicab driver. She said she was scared to take taxis following the attack.

The CICA reduced her payment by 30 per cent because of the driving offence. “It was another knock down,” she said. “How does that relate to what happened to me a year before?”

The Independent’s findings come amid increased scrutiny of the CICA, an executive agency of the Ministry of Justice. In July, charities warned the body had denied hundreds of sexually abused children compensation on the grounds they gave consent. The Ministry of Justice said it was “urgently reviewing” its guidelines following the revelations.

But the MoJ has since told The Independent it was only assessing its recommendations in grooming cases and was not considering changing the basic rules of the scheme. There were no plans to stop using criminal convictions as reasons to reject victims’ claims, the MoJ said.

Data obtained from the CICA under freedom of information laws shows criminal records were a factor in refusing at least 161 sexual assault victims’ compensation in 2015. Another 106 victims with convictions were rejected in 2016 and, in the five months to 2 June of this year alone, at least 131 cases were.

The data does not account for the number of victims who had their compensation reduced rather than completely rejected.

The CICA said it was only able to give the number of rejections based on keyword searches of their database, meaning the numbers could be higher. London-based charity Women Against Rape is calling for the MoJ to make the compensation system more transparent, claiming it is withholding funds from victims on arbitrary grounds.

READ MORE

“You can’t tell the discrimination through the figures that are available and that’s what we would like to be able to do,” said a spokeswoman for the charity, Lisa Longstaff.

“The compensation authority has lagged behind the standards of the criminal courts because it is not subject to public scrutiny in the same way.”

CICA payments were “crucial” to victims, she said, because of the psychological effects of rape and sexual assault.

“It’s not like they need aromatherapy to make them feel better. We’re talking about serious, enduring mental health problems. It’s hard to get anything now from the NHS,” she said.

Rape can have a profound effect on a person’s circumstances and compensation money was often used to made victims feel safer, she added. “You may have been made homeless. You might not be able to function and could have dropped out of a job,” she said.

“You may need to improve your security. Or you may need to move – not that it’s enough to buy a house.”

Compensation payouts for sexual assault cases range from £1,000 to £44,000, with a victim of a rape committed by one attacker allocated around £11,000.

“You may be unable to travel – a lot of people find they can’t go out after dark or they can’t take public transport,” she added. “There’s all sorts of ways your personal freedom gets limited by such an attack – and it incurs costs.”

Shadow Justice Secretary Richard Burgon said: “This appears to be another example of victim-blaming. Victims of serious sexual offences should not be being punished in this way by the CICA.”

As well as condemning the practice, he called for reform where there is evidence a victim’s offence is tied to their attack. “The Government must urgently review this situation to ensure that when offences are committed as a direct result of the abuse they have suffered, women receive the compensation they are due,” he said.

A spokesperson from the MoJ said: “The Criminal Injuries Compensation Scheme provides taxpayer-funded awards to victims of violent crime.

“As it is a taxpayer-funded scheme, it is designed to ensure the most rigorous of decision-making processes based on the full facts of the case. This includes cases where an applicant may have caused harm to another person, or committed another criminal offence.”

They said victims’ criminal convictions were not necessarily the sole factor in rejecting their compensation claims.

Rachel Almeida, Head of Policy at the independent charity Victim Support said: “That hundreds of sexual assault survivors are denied compensation because of this rule is cause for concern and can lead to the re-victimisation of some of the most vulnerable people, including victims of child sexual abuse.

“The application of criminal injuries compensation should be more proportionate so that victims of the most serious of offences are not denied compensation for what can sometimes be the most minor of convictions, such as not paying their TV licence.”

http://www.independent.co.uk/news/uk/crime/sex-assault-victims-refused-compensation-criminal-convictions-a8012011.html

Letter to Justice Secretary – Criminal Injuries Compensation Scheme

From: WOMEN AGAINST RAPE

David Lidington david.lidington.mp@parliament.uk
Justice Secretary – Ministry of Justice

28 July 2017

Dear David Lidington

Re Criminal Injuries Compensation Scheme and Authority (CICA)

We echo demands in the letters to you from MP Sarah Champion, shadow minister for women and equalities, and from a coalition of charities[1] that the Criminal Injuries Compensation rules be changed, both widely reported in the media last week.

It has now been uncovered that the Criminal Injuries Compensation Authority (CICA) has denied compensation to nearly 700 child rape victims since 2012 on the grounds that they consented. Ms Champion said on Channel 4 News (18 July) that this is both morally repugnant and possibly flouts the law. The law states that the age of consent is 16 and that every person, whatever her age, has to have the capacity and freedom to consent.

WAR has helped victims as young as 13 since 1999 who were denied compensation on these same grounds. Below we add information gathered while working with rape victims, which show that the problem is even greater than has so far emerged.

For many years we have been supporting and campaigning for compensation with women and girls unfairly refused. The punitive treatment of these 700 victims is the tip of the iceberg. Consent is just one glaring example of the many backward and discriminatory rules that exist in the scheme, and in the way they are used. We have helped victims apply and when they are refused, we have helped them appeal. We have also worked with lawyers, academics and other professionals to press for changes to the CICA.

There is a broad consensus and a growing body of evidence[2] that compensation must be overhauled for justice to be done. We call your attention to five other common injustices in CICA decisions that particularly affect victims of rape.

  1. CICA denies compensation to victims who delayed reporting to police

It is widely accepted that reports of rape are often delayed due to factors such as shame and pressure from others. This is out of step with improvements in the criminal law, where judges in criminal trials no longer warn juries that a delayed report raises suspicion of a false allegation of rape. Yet the CICA rules say they can refuse an award due to delay which they consider evidence of ‘lack of cooperation’ with the police.

  1. There is no legal aid for appeal hearings and victims are unfairly cross examined

In criminal courts, both judges and the CPS can now challenge the defence use of rape myths. At CICA appeals, the victim is usually unrepresented as there is no legal aid. She faces a CICA lawyer and any question, however prejudiced, can be put to her.

We recently complained in writing about the questioning of a teenager who had been raped at age 13. Despite evidence she has a learning disability and has been frequently suicidal since the rape, she was asked: What did she wear? Why didn’t she scream? As if the rape was her fault. This disregards criminal court protections for treating rape victims as vulnerable witnesses. We asked the CICA Appeals Panel whether they have guidelines to protect vulnerable claimants. They would not say. If they do, why are they not transparent? Why are they being flouted? If they don’t, why not?

  1. Living under the ‘same roof’ with your attacker before 1979 disqualifies you from receiving compensation

This archaic rule discriminates against victims of rape within the family. Parliament abolished the rule in 1979 but current claimants who were raped before 1979 are still penalised. It is generally acknowledged that many victims raped as children take years to come forward. Even where a man was convicted of raping her as a child, the victim is still refused. Every legal challenge to this has failed, and courts have sometimes ruled that since Parliament makes the CICA rules, Parliament must change them, not the court.

  1. Victims of rape who have a criminal conviction are denied compensation

Victims with unspent convictions are refused, no matter how minor the conviction. Victims have been refused compensation for rape when they didn’t pay a TV license! We helped get such injustices reported in 2015 in The Mirror and The Guardian.[3] Last year we gave evidence in a judicial review against reducing an award to just 30%. The woman had been prosecuted for a ‘false retraction’ of rape by her husband – after pressure by her attacker she had withdrawn her truthful report and sent to prison. She was then penalised by the CICA for not co-operating with the prosecution and for two driving offences. After the JR she won 70% of the award.[4] Barristers were so outraged by the injustice they acted for her pro bono. Preventing women from getting compensation due to minor convictions is discriminatory; it creates a moral distinction between victims who are considered ‘good’ or ‘bad’, even if the conviction has nothing to do with the incident of rape. It also penalises victims who may have been criminalised after the rape, often as a result of the trauma they suffered, e.g. sex workers and drug users. In addition, since legal aid was cut, neither judicial review nor appeal is available to most women.

  1. Out of time claims

The standard time limit of two years for applying after the crime can be extended in some circumstances. But discretion to extend is used sparingly by the assessor, whose main concern seems to be to save money not to help victims. Many have lost out because they had been actively discouraged by police to wait until the end of a trial, which pushed them over the two year limit. Others were pushed over the limit by being incapable of applying because they were too traumatised. The time limit should be extended to at least five years counted from the conclusion of criminal proceedings, and discretion should be exercised with more compassion.

Conclusion

The blaming of victims by the criminal justice system has been particularly contentious, and this has led to changes in law, training of police, judges and CPS prosecutors, and numerous policies and guidelines. We have made several written complaints about discrimination by the CICA as their practices do not reflect the changes in the laws and procedures of the courts in relation to rape.

The CICA hasn’t been told to believe victims of sexual violence. Their discriminatory decisions often imply that victims who apply for compensation are lying; lying in order to get compensation.

The disrespect and sexism the CICA has massively shown to victims who were under 16 is clearly part of a wider pattern which treats compensation as a bonus for ‘good behaviour’ rather than a victim’s right. Justice is the best healer and compensation is often the only official acknowledgement victims get – without it, it is much harder for victims to overcome trauma and rebuild their lives. There is ample evidence of offensive discrimination against women and girls who are victims of serious sexual offences. It is long overdue that CICA is updated (not cut as it was in 2012) and their archaic rules and the discriminatory use of discretion in the implementation of the Scheme ended.

[1] Victim Support, Barnardo’s, Rape Crisis, Liberty and the National Working Group, reported in The Guardian, Telegraph, Mirror, etc, 18 July

[2] We refer to the published research ‘Supporting Survivors through the Criminal Injuries Compensation Scheme: an exploration of English and Welsh Independent Sexual Violence Advisors’ Experiences’, by Dr Olivia Smith and Jessica Galey

[3] Mirror 2015 https://www.theguardian.com/society/2015/mar/17/rape-victims-denied-compensation-petty-convictions and The Guardian 2015 http://www.mirror.co.uk/news/uk-news/rape-victims-compensation-cut-because-5169620

[4] See “High Court rules in favour of rape victim who retracted”, Guardian 1 Aug.