Published: 21 August 2020
Author: Penny Savidis
Crime and Punishment: Justice for abuse survivors with criminal records
Many people with criminal convictions who approach our Abuse Law department for assistance are often worried they won’t be able to do anything about abuse they suffered as children because of their criminal history.
There has been significant research demonstrating a link between childhood abuse and subsequent criminal offending. While not everyone who suffered abuse turns to crime, it is not surprising when abuse survivors do go “off the rails” and do so. Sometimes this may be to fit in with the “wrong crowd” as children, or to support drug, alcohol and/or gambling addictions.
Many abuse survivors with criminal histories who approach us for advice have often not offended for decades; some were even wrongly convicted of crimes as children. Others are still stuck in the criminal justice system after years of institutionalisation and can be desperate to break the cycle.
This blog outlines why having a criminal record will not usually prevent you from seeking justice for child abuse.
What effect do criminal convictions have on a National Redress Scheme claim?
The National Redress Scheme for Institutional Child Sexual Abuse was established in July 2018 following recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse. The Scheme offers survivors monetary payments of up to $150,000, as well as access to counselling and psychological services and a direct personal response from the responsible institution if requested.
The National Redress Scheme can potentially exclude survivors with serious criminal convictions. This means that if you are or have been sentenced to a term of imprisonment for 5 years or longer for a single offence, you will not be entitled to redress unless the National Redress Scheme Operator makes a determination that you are entitled.
Redress may still be available under the National Redress Scheme if the Operator determines that providing redress in the circumstances would not bring the Scheme into disrepute or adversely affect public confidence in, or support for, the Scheme. There are various factors taken into account, including:
- the nature of your offending and length of imprisonment;
- how long it has been since you committed the offence(s);
- your rehabilitation; and
- the advice of relevant Attorneys-General (in the state where you were abused and the State where your offence(s) occurred if different).
The National Redress Scheme requires applicants with serious criminal convictions to fill out a Serious Criminal Conviction Additional Information Form in the first instance providing further information, including information required to undertake a Nationally Coordinated Criminal History Check (NCCHC) in relation to the crime(s) and information about any relevant rehabilitation.
If you are deemed eligible to apply for redress, your application is dealt with in the same way all applications are processed. If you are not found to be eligible for redress because of your criminal offending, you may still be able to make a civil claim (see below).
What happens if I am in jail now?
If you are currently serving a sentence in jail, you cannot make a National Redress Scheme application until after you are released in all but the most exceptional circumstances. These include if you would be too ill to make an application upon your release or if you are not likely to be released until after the National Redress Scheme closes (currently scheduled for 30 June 2027).
What effect do criminal convictions have on a VOCAT claim?
In some circumstances abuse survivors can also apply for compensation to the Victims of Crime Assistance Tribunal (VOCAT), which offers State-funded compensation to victims of crimes committed in Victoria who have suffered from an act of violence and been injured.
If you have committed a crime and apply to VOCAT, you may still be eligible for assistance, but VOCAT can seek material from the police relating to both the criminal history of the alleged offender and your criminal history. The Tribunal must consider the crime and may refuse or reduce an award of assistance to you accordingly.
What effect do criminal convictions have on a Common Law Civil Claim?
Civil Claims are an alternative to National Redress Scheme claims and can be issued in court or resolved out of court through a negotiated settlement. Civil claims usually offer survivors more significant compensation for pain and suffering than the maximum $150,000 available under the National Redress Scheme. Civil claims both in and out of court can also offer compensation for past and future economic loss as well as past and future medical expenses, which are not available through the National Redress Scheme.
One of the many benefits of a civil claim compared with a claim under the National Redress Scheme is that both past and present criminal offending do not usually present big hurdles for clients, even for those with serious criminal convictions.
Depending on the crimes committed, criminal convictions can be raised by defendants as affecting credibility, or in reducing the amount of compensation that might otherwise be awarded. That said, we often successfully resolve common law civil claims for abuse survivors with serious criminal convictions spanning decades.
What if I am in jail now?
You can still pursue a common law civil claim if you are currently in jail.
We regularly pursue claims successfully for clients who are currently incarcerated. All steps involved can be done remotely, eg via prison visits, videolink or telephone. Complete confidentiality can be assured throughout the process.
More information for victims of abuse
If you have a criminal record and have suffered abuse, we strongly encourage you to contact RCT’s Abuse Law department for assistance. Call us on 1300 366 441 or email us at firstname.lastname@example.org to arrrange a free, no-obligation first consultation.