Released On 17th Mar 2015
Can I claim compensation for sexual assault when my abuser has died?
The UK is unique in Europe in that it has no Statute of Limitations for the investigation and prosecution of historic sexual offences. This means that a victim can ask the police to investigate sexual crimes that occurred many years ago. Recent high profile cases testify to this.
By contrast, in the rest of Europe the average upper time limit, or limitation period is 12 years from the date of the alleged offence, with a maximum of 20 years in certain countries if the victim was a child at the time of the assault, or if serious violence was involved.
The natural consequence is that in Britain many more historic sex abuse cases are routinely investigated by the police in this country than abroad. The police will investigate the circumstances of the alleged offence and will take statements from witnesses, the victim and alleged offender. Of course some of the evidence may well be very old and of limited value, but convictions do routinely arise.
The police will treat the investigation as if it were an offence committed only yesterday but the defendant will be judged by the standards of the day that pertained at the time the offence was actually committed. As the laws relating to sexual abuse were much less stringent in the past, it means that offences which nowadays would be considered to be criminal acts might not if be crimes under historic laws.
There was a change to the legislation following the introduction of the Sexual Offences Act 2003 that came into force on 1st May 2004.
The new Act created several new offences and redefined many outdated legal tests. For example whereas rape previously did not include penetration of the mouth or anus, the new Act includes this and therefore contemplates male rape.
The Sexual Offences Act 2003 also changes the way in which a lack of consent in sexual assault and rape may be proved, and the circumstances in which lack of consent may be presumed. Nowadays the complainant will not be presumed to have consented to a sexual act unless sufficient evidence is put before the Court to raise at least the suggestion that they consented. The old test that the victim had to disprove a lack of consent has been replaced by various legal presumptions and is at least partially discredited. Furthermore, the defendant now has to show that he reasonably believed that the complainant consented.
In this country the criminal law deals with individuals who commit crimes and thus somebody who has died is not capable of being put on trial. Prosecutions and convictions against the deceased simply do not happen. To this end the dead can escape justice, and many believe that Jimmy Savile is a prime example. It remains the case that the police may be prepared to investigate allegations against suspected abusers who have died, but only if the police believe that by doing so fresh evidence against other abuses who are still alive will be uncovered.
What happens if the abuser had died before he gets to Court?
Can you recover any compensation?
Cases of sexual abuse should be prosecuted by the police. However, the victim is also entitled to recover compensation for the psychological and physical injuries caused by the abuse.
The victim can make a claim to the criminal injuries compensation authority (“CICA”). The CICA is a government funded Authority that compensates victims of violent crime. The CICA has stringent eligibility rules, but in principle, there is no reason why the victim should not obtain compensation notwithstanding that the abuser has died.
The more difficult question arises when a victim wishes to obtain compensation from the abuser in the civil courts as a result of historic sexual abuse.
In certain circumstances the victim can sue an employer or organisation under the principle of vicarious liability.
In a workplace context, an employer can be liable for the acts or omissions of its employees, provided it can be shown that they took place in the course of their employment. This can include violent or abusive acts, provided the abuser is deemed to be under the control of the employer.
Likewise many organisations such as Catholic Church, Scouts and schools have been held liable for the actions of their members and staff even though they may not strictly be employees. The test is really one of control and knowledge. If the victim can show that the organisation exercised day-to-day control over its members or staff and knew or at least was suspicious that abuse was taking place, particularly if the abuse took place on the organisations premises, then it is likely the victim can sue the organisation rather than the individual abuser. The overwhelming advantage of suing an organisation is that it is likely to be insured, or at least have assets and therefore compensation will follow if liability can be established.
If the sexual abuse took place away from the workplace and in circumstances in which the authorities could not know of the abuse then the victim may be left having to sue the abuser. Most people have a property and money in a pension fund, and these assets are available to a successful victim if a Court judgment can be obtained against the abuser.
However, it is not infrequent for a victim to find that an abuser has little or no money and whereas the Court would make an order for compensation, the exercise is worthless.
Suppose the abuser has died?
What should the victim do then?
Here, time is very much of the essence. When someone dies, Executors are appointed under the Will, or Administrators appointed by law, have a responsibility to sort out the deceased’s assets and liabilities. The Executors and Administrators will collect in the deceased’s assets and calculate their liabilities. Any existing debts will be paid out of the assets and any balance will be distributed under the terms of the Will or according to the rules of intestacy. The process of collecting in the assets and paying the liabilities often takes at least six months. After the estate has been distributed to their beneficiaries, there will be no assets left to pay you compensation.
Crude though it may sound, a victim who has obtained a judgment against a deceased abuser is a creditor of the deceased abusers estate. The victim is just as entitled to the paid as any other creditor. Creditors are usually paid on a percentage basis. This means that if a victim has an award of compensation of, say £100,000 and all other creditors have combined liabilities of £50,000 the victim will receive two thirds of the deceased’s estate up to the value of £100,000.
What to do?
If you have suffered sexual abuse and your abuser has now died, a claim can still be made against their estate. You will need to act promptly, as once the estate has been distributed, it may well be too late. If the deceased perpetrator was employed, or was part of an organisation such as the Church, the normal statutory time limits will apply. For expert advice on a claim against a deceased perpetrator, please contact us at firstname.lastname@example.org for a free, confidential, no obligation consultation.