Yesterday saw a Bill to be introduced into parliament – which if enacted will establish a Commonwealth Redress Scheme for Institutional Child Sexual Abuse. This is a long-awaited development but it has been met with disappointment from survivors and advocacy groups alike due to its restrictive nature and failure to compensate equally.

Survivors with a Criminal Background

While not formally included in the Bill, Minister for Social Services, Christian Porter yesterday announced that any person who has been convicted of sex crimes, or any serious crime which attracted a sentence of 5 years or greater would not be eligible to apply for compensation under the scheme. This is likely to impact a significant number of survivors who fall within the exclusion.

Ryan Carlisle Thomas has successfully acted for numerous survivors of abuse with significant criminal backgrounds, who would be excluded under the scheme. While not condoning or excusing the crimes of these survivors, there must be recognition that many of their crimes stem from psychological injury and consequential drug addiction caused by the abuse they themselves suffered in the institutions.

It seems moralistic for those who were complicit by way of their negligence in allowing sexual abuse of children to exclude survivors of that abuse because of crimes the survivors have subsequently committed in their adult life. The two are mutually exclusive. Imposing a ban on those with significant criminal history not only ignores the potential link between their offending and the offences committed on them, it imposes a further punishment which is already dealt with under our criminal law.

The victims of the crimes committed by survivors’ will, by virtue of Victorian law, have been able to seek compensation from the survivor either by way of a sentencing act application or by suing them as an individual. Similar entitlements are afforded in other jurisdictions. Just as these victims have been afforded the right to compensation so should the survivors of abuse even if they have gone on to commit crimes themselves.

A complex transition

While it might be difficult to reconcile that those who have had crimes committed against them would go on to commit those same crimes, it is not for the Commonwealth Government or anyone else to unilaterally impose a further sentence on them. The imposition of such an exclusion flies in the face of sentencing principles which seek not only to punish but to rehabilitate.

It is unclear whether there will be any exceptions to the exclusion. For example, consider the scenario where a child suffering sexual abuse has gone on to sexually assault another child and been sentenced prior to reaching the age of 18, but serves that sentence into his adulthood. In this scenario the survivor is both victim and perpetrator and yet the two acts appear intrinsically linked.

Further, our experience indicates that many survivors were not given adequate transitional supports when leaving institutions and thereafter quickly became involved in criminal activities, spending significant portions of their life incarcerated. For these people to be denied access to compensation seems manifestly unfair.

Survivors who suffered physical abuse and not sexual abuse

The scheme fails to provide redress for those who suffered institutional physical abuse but not sexual abuse. The explanatory memorandum for the Bill notes that non-sexual abuse, presumably including physical and mental or emotional abuse, will be taken into account as an aggravating factor when assessing compensation for sexual abuse. It does not provide for those who did not suffer sexual abuse.

In our experience physical abuse, particularly abuse of a humiliating nature or that is prolonged and repetitive, can have very significant effects on survivors. Ryan Carlisle Thomas has brought successful claims for numerous survivors who, while they did not suffer sexual abuse, still experience the ongoing trauma from the physical abuse endured at the hands of their supposed carers.

If you are a survivor of abuse and are interesting in understanding your rights under redress further please call 1300 366 441 or email our team directly at iaclaims@rctlaw.com.au.