In institutional and sexual abuse, what is the difference between a civil claim and a criminal case?

Do survivors need to report their allegations of abuse to the police in order to pursue their civil entitlements?

Can survivors pursue both civil claim and criminal case simultaneously?

It is important for survivors of abuse to understand the difference between a civil claim and a criminal case.

However, a successful criminal conviction can assist a claim for compensation.

What is the difference between a civil claim and a criminal case?

A criminal case involves the police charging a person with a crime. A criminal proceeding is then conducted by the office of public prosecutions in the hope of it leading to a conviction of the alleged perpetrator.

A criminal case is commenced by reporting the alleged abuse to the police who then conduct an investigation into the allegations and collect evidence.

In contrast, a civil claim is usually pursued against the organisation that had care and control of the institution or the individual who perpetrated the abuse. In civil claims the remedy sought is usually monetary, such as an award of compensation or assistance with medical expenses, but can also include other remedies such as letters of apology.

When Civil claims are brought against the individual who perpetrated the abuse attention needs to be paid to whether the individual has assets which would allow him to pay any compensation awarded to the plaintiff.

Importantly, if a plaintiff is successful in bringing a civil claim for compensation it does not automatically lead to criminal charges being laid.

The standard of proof in a civil claim is different to that of a criminal proceeding.

In a civil claim the standard of proof is on a ‘balance of probabilities’. The balance of probabilities will be met if you can successfully establish that the claim you are making is ‘more probable than not’. Whereas, in a criminal case the standard of proof is that of ‘beyond reasonable doubt’. This means that the prosecution must bring evidence of such a standard that there would be no reasonable doubt in the mind of a reasonable person that the accused is guilty.

At Ryan Carlisle Thomas, our specialised institutional abuse lawyers assist clients in pursuing civil cases.

Who should I report my allegations of abuse to if I wish to pursue a criminal case?

We recommend contacting the SANO Taskforce. The SANO Taskforce was established to investigate historic and new allegations of child sexual abuse in response to the following the Victorian Parliamentary Inquiry into child sex abuse involving Religious and Non-Government organisations.

The SANO Taskforce also coordinates investigations into matters referred to it from the Royal Commission into Institutional Responses to Child Sexual Abuse. As at 1 June 2017 the Commission has referred 2050 matters to authorities, including the police.

The SANO Taskforce is located within Victoria Police’s Crime Command and includes specialist sexual assault detectives who will help survivors pursue justice either through a full judicial process at court or by simply telling their story.

If you are a survivor of abuse and you wish to report the abuse to the police, we encourage you to contact the SANO Taskforce. The SANO Taskforce can be contacted by email at sanotaskforce@police.vic.gov.au or by telephone on 1800 110 007.

Do I have to report my allegations of abuse to the police in order to pursue a civil case?

It is not a requirement for a survivor to report their allegations of abuse to the police in order to pursue a civil case. However, some entitlements to compensation, such as through the Victims of Crime Assistance Tribunal, do require a report to the police having been made.

If you would like advice regarding whether or not you need to report your allegations of abuse to police in order to pursue your civil entitlements you should contact our office on (03) 9238 7878 to discuss this further.

We encourage survivors to report their allegations of abuse to the police if they wish to. In our view if a crime has been committed it should be investigated by the appropriate authorities.

Our office works closely with the SANO Taskforce as many of our clients have either reported their allegations or have told their story to the Taskforce. Even though not all reports made lead to charges being laid, they are extremely helpful as all reported allegations help build and develop a framework and help form a database for future allegations.

The SANO Taskforce allows survivors to:

• Make a formal police report and initiate an investigation;
• Tell your story and defer any decision to proceed; or
• Make a statement with a clear decision not to proceeding formally.

In our experience, some survivors have reported that the combination of having sought a criminal conviction and civil compensation has enhanced their feeling that they have achieved some form of justice for the abuse they have suffered.

Can I pursue a civil and criminal claim simultaneously?

Many of our clients are pursuing criminal proceedings against a perpetrator when they seek our advice regarding their civil entitlements. Likewise, some clients express an interest in pursuing a criminal claim when their civil claim is already underway.

In these situations, we generally advise clients to put their civil claims on hold until the conclusion of the criminal proceedings before pursuing or continuing to pursue their civil case. This is because in some cases, the criminal investigation by police can help to identify evidence relevant to the civil case.

The police have wide-ranging powers of investigation and are often allowed access to documents and records which we may not otherwise have access to, particularly prior to issuing proceedings in a civil claim. The criminal investigation may also reveal other survivors of the same perpetrator or witnesses to the abuse that occurred which is useful corroborative material for the pursuit of a civil claim.

While a client’s claim may be put on hold, keep in touch with our clients and the investigating police officer regarding the progress of the criminal investigation at regular intervals. Once the criminal investigation and any court proceedings have concluded we then seek our client’s records from the police and court, and proceed with the civil claim as normal.