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Between a Rock and a Hard Place: Women Victims of Domestic Violence and the Western Australian Criminal Injuries Compensation Act
| Author: |
Linda Jurevic BS, JD
Lecturer, School of Law, Murdoch University
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| Issue: |
Volume 3, Number 2 (July 1996)
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Note
INTRODUCTION
-
While millions of women throughout the world have been abused by men,
often to death, the subject of domestic violence has been studied to
death. It is generally accepted that domestic violence is all too common,
wrong, and must be eliminated.[1] It is
acknowledged that domestic violence is a highly complex problem which
requires a multi-faceted approach to achieve a systemic solution.
Unfortunately the law and lawmakers, policy and policy makers, and society
at large still cling to one dangerous myth: the one that insists that
women are somehow, or in someway, responsible for their abuser's violence.
As demonstrated in this article, the perpetuation of this myth impedes
women using the law successfully to seek remedies for their injuries,
particularly in applications for criminal injuries compensation.
-
Much of the domestic violence which comes to public
attention could be classified as criminal; physical and sexual acts of
violence are explicitly dealt with by the Criminal Code. Unfortunately,
police, prosecutors, judges, victims, and society often find it difficult
to label domestic abuse as criminal. And even when an act of violence is
appropriately classified as criminal, the criminal system (the law itself,
adjudicators, police, prosecutors) is largely incompetent to deal
effectively with domestic violence. This incompetence is noticeably
apparent when the operation of the Western Australian Criminal Injuries
Compensation Scheme is examined. -
This article focuses on the
treatment of victims of domestic violence by the Office of the Assessor
for Criminal Injuries Compensation. This examination reveals the
conflicting legal standards and the inhibiting statutory requirements of
the scheme which result in the perpetuation of the myth that women are
somehow responsible for the violence and prevents deserving victims from
obtaining their due compensation under the scheme. -
Part I
of the article provides a general overview of criminal injuries
compensation. Part II of the article reviews the research methodology
used to examine the criminal injuries compensation scheme in Western
Australia. Part III examines specific sections of the statute, and reviews
case scenarios which reflect the problems faced by women applicants who
have suffered injuries as a result of domestic violence. Part IV, the
conclusion, offers suggestions for reform to ameliorate the problems
discovered through this research.
I. OVERVIEW OF CRIMINAL INJURIES COMPENSATION
-
Since the 1960's, Criminal Injuries Compensation schemes have been
created in many common law jurisdictions.[2] While
essentially state financed schemes to compensate the victims of
intentional torts, compensation is strictly limited for injuries caused by
acts which are, or could be found, criminal.[3]
-
The underlying rationale for the schemes cannot be stated
simply. While it can be said that such compensation is a "tangible
expression of the state's sympathy and concern for those who, through no
fault of their own suffer unjustifiable invasions of their personal
integrity",[4] it has also been suggested that
these schemes developed in response to the growing belief that crime is
out of hand, criminals have too many rights, and the State is not doing
enough to prevent crime.[5] Several writers cast
doubt on the assertion that compensation schemes were developed to assuage
the state's guilt for failing to protect its citizens.[6] They assert that the schemes should be viewed as a state
endorsed alternative to the use of courts by victims.[7] As such, victim compensation schemes provide an
inexpensive alternative to expensive and often futile litigation.[8] -
In Western Australia, the
legislative history behind the 1985 Criminal Injuries Compensation Act
seems to justify the scheme on two grounds: to compensate innocent victims
of crime who would be otherwise unable to recoup damages; and to atone for
the State's failure to protect its citizens.[9]
This history further indicates that the scheme was never intended to fully
compensate victims as it would be "economically unrealistic to make the
taxpayer the unlimited and comprehensive insurer of crime victims."[10] By requiring a criminal act to have been
committed, and allowing the State to seek reimbursement from the convicted
offender, the scheme is also retributory, ie, it embodies the "principle
of automatic responsibility for the damages occasioned by a person's
misdeeds and the injuries inflicted on other citizens".[11] -
Combining these rationales into one
general explanatory policy statement, it could be said that: The state,
accepting partial responsibility for its failure to protect is citizens,
sympathises with the victim of crime who is unable to recover damages
because courts are inaccessible and offenders are often impecunious. By
affording financial relief, the State provides compensation to the victim,
punishment for the offender, and potential deterrence against further
crimes. -
The scheme essentially consolidates four separate
legal actions to accomplish this broad goal: 1) a criminal action (by the
State to punish the offender);[12] 2) a civil
action (by the victim to recover tort damages from the offender); 3) a
civil negligence action (by the victim against the state to recover
damages for failure to protect); and 4) a quasi-administrative
determination (to ascertain the needs and eligibility of the victim
seeking general welfare assistance from the State).[13] When a victim applies for compensation, the four
actions are, for all intents and purposes, addressed by one application
for criminal injuries compensation. -
As a result of this
consolidation, the statutory requirements for compensation reflect
standards and doctrines represented in criminal law, tort law, and
welfare\public benefits law. This intermingling creates inconsistent
standards or conflicting doctrine, and produces major tensions. For
example, the scheme seeks to provide compensation for the victim (damages
in tort) but because the public purse is involved, compensation is limited
to those "truly deserving and innocent"[14]
(welfare function). This concern with the status of the victim would be
misplaced or irrelevant in criminal or tort law. In criminal law, the
focus is on the offender and whether his criminal behaviour can be legally
excused or justified. In tort law, the victim's behaviour is only
relevant to a limited extent - for example to ascertain assumption of
risk, or contributory negligence. But in the criminal injuries
compensation scheme, the statute requires that the victim's life be probed
to a far greater extent to ascertain whether any misbehaviour on her part
could have directly or indirectly caused her misfortune.[15] -
This investigation into the victim's life
is problematic. Because there is no established legal doctrine or
precedent to assist the Assessor in determining what behaviour is relevant
in ascribing or apportioning blame to the victim, the decision-maker is
forced to rely on her own subjective values of what constitutes bad
behaviour. As a result, societal values which seek to blame the victim of
domestic violence surface again to deny her compensation from the State.
II. RESEARCH METHODOLOGY -
In August 1994,
applications made to the Office of the Assessor for Criminal Injuries
Compensation of Western Australia during 1992 were reviewed. The calendar
year 1992 was chosen in order to have a sufficient number of closed files
to review.[16] A file is deemed closed when a
decision is made (an award is granted or denied, an applicant withdraws
her application, or an application has insufficient evidence from which a
decision can be rendered and the applicant has failed to respond to
requests for additional information). At the time of the investigation,
940 files had been closed and 620 files were actually available for
examination. The remaining 320 files were unavailable, generally because
of the need for additional clerical work.
-
Of the 620 files examined, 57 contained allegations of violence which
had occurred either between intimates, family members, or as a result of
violent altercations in a domestic context. Applications involving
allegations of child sexual abuse were not included in this review. Of the
57 files containing allegations of this type of violence, 45 files
contained sufficient information from which the particular domestic
context could be determined. -
Of the 45 files with sufficient
information, 30 files concerned applications brought by a victim against
an offender of the opposite sex (note that only 2 of these 30 applications
involved a male applicant and a female offender). All 30 files contained
allegations of violence which occurred between intimates or between family
members. -
Of these 30 applications: 17 were brought by an
applicant against a former intimate; 5 were brought by a child against a
parent (or step parent); 1 was brought by a mother against her son; 2 were
brought by a sister against a brother; 4 were brought by a victim who was
related to the offender through marriage; and 1 was brought by a woman
against her cousin's boyfriend. -
This paper is concerned with
domestic violence which is defined, for purposes of this study, as
violence occurring in a heterosexual family context between intimates..
This definition admittedly excludes instances of abuse that are directed
against children, the elderly, or which occur in gay or lesbian
relationships. Given this definition, out of the 620 files examined, only
17 involved violence which occurred in a heterosexual family context (note
that only 1 involved a male applicant.) The analysis in Part III is based
on these files. Two additional files were utilised (from the 30 listed
above); one application is by a stepdaughter against her stepfather, and
one application is by a woman against her cousin's boyfriend. These files
were used because they contained decisions on two important legal issues;
the relationship between the victim and offender was not a significant
factor in the decision reached. -
Less than 5% of the 620
files reviewed involved allegations of domestic violence. This is not a
surprising result given the reluctance of women, society, and relevant
government officials to view domestic violence as a criminal action for
which compensation may be available.[17]
Furthermore, many citizens are unaware of the compensation scheme.
Agencies who regularly deal with victims of crime, have only recently
begun referring victims of domestic violence to the Office of the
Assessor. Finally, the Criminal Injuries Compensation scheme itself
contains several specific statutory hurdles which would prevent an abused
woman from seeking compensation for injuries caused by her male abuser.
-
The following discussion analyses these hurdles, and where
appropriate, refers to a specific case example found in this
investigation. The individual case scenarios which are used in this paper
are illustrative of the types of problems women victims of domestic
violence can face in bringing an application for criminal injuries
compensation. They are not necessarily representative of all claims by
women victims. -
Given the small number of applications from
women victims of domestic violence, it would be unfair to make any
generalisations as to the operation of the Office of the Assessor. Because
the Criminal Injuries Compensation Act 1985 (WA) does not require the
Assessor to publish the decisions of the Office, the specific legal
reasoning employed by the Office is not available for review. Thus,
assumptions occasionally had to be made in the following analysis.
III. THE ACT -
The Criminal Injuries Compensation
Act 1985 (WA) (hereinafter the "Act") allows a victim of a criminal
offence to apply to Office of the Assessor for Criminal Injuries
Compensation for compensation for loss or injury resulting from an
offence. The Assessor, before making an award of compensation, is to
satisfy herself on the balance of probabilities that the claimed loss or
injury has occurred and that the claimed loss or injury occurred in
consequence of the commission of an offence.[18]
In addition, the Act stipulates that the Assessor shall not make an award
"where compensation is likely to benefit the offender, where the applicant
has failed to assist in enforcement, or where the behaviour of the
applicant contributed to the injury or loss suffered.[19] These provisions present potentially significant
hurdles to a woman who has been criminally assaulted in her home by an
intimate. A. CONTRIBUTORY CONDUCT -
Section 25
states: "In determining the amount of an award of
compensation the Assessor shall have regard to any behaviour, condition,
attitude or disposition of the applicant or deceased person which
contributed, directly or indirectly, to the injury or loss suffered by him
or to his death, as the case may be, and may reduce the amount which he
would otherwise award by such percentage as he thinks just."
-
This provision addresses the concern that taxpayers do not
want to compensate those who are the "author of their own misfortune".[20] This provision, when applied to a victim of
domestic violence, looks for a way to hold her, if not totally, at least
partly responsible for the violence of the male offender. While it does
not justify the abuser's behaviour (he could still be found criminally
responsible), its effect is to excuse the abuser's behaviour and apportion
responsibility to the victim. The victim may be accused of engaging in
"mutual combat" with her abuser, or of provoking the violence. -
The following sections on "mutual combat" and "Provocative Conduct"
describe how these accusations work against victims of domestic violence.
Case scenarios are used to demonstrate how the particular incident of
violence could have been perceived. The Assessor did not necessarily use
these labels, but instead referred generally to contributory conduct.
Mutual Combat -
Abusers, police, prosecutors, and
other officials often minimise domestic violence by viewing it as a
situation of mutual combat. The victim gave as good as she got; both
parties used physical force; it was a mutual scuffle. Women do use
physical acts against their abusers. However, one commentator, Daniel
Saunders, asserts that women use physical violence for very specific, and
different reasons than men.[21] Firstly, a woman
often uses violence in self-defence, and, is usually not the initiator of
an attack. Secondly, when women do in fact initiate violence, they may do
so because "they sense impending violence from their partner, and initiate
the attack in order to stop the overwhelming build up of tension."[22] Finally, Saunders casts doubt on the
perception that mutual combat has in fact occurred when the injuries
resulting from the violence are so disparate: "A shove by a woman may
enrage her partner; a shove by a man can knock a woman down and cause a
concussion."[23] -
Classifying a
physical fight as "mutual combat" ignores the obvious differences in the
physical capacities of the parties, and the particular dynamics in
male-female relationships. Assuming that the fight has the same
characteristics of a male to male bar room brawl (entered into freely and
by parties with similar physical capacities) allows society to assert that
violence between men and women is also entered into freely and, therefore,
that the female victim has indirectly or directly contributed to her
injuries. This assumption ignores the reality that the victim's actions
could be in self-defence, and negates the disparities in injuries received
in a male - female "fight". It allows abusers to benefit from the fact
that the victim fought back. -
The following case scenarios
reflect the Assessor's treatment of compensation claims where physical
acts were used by both the offender and the applicant.
Scenario One -
The applicant was the cousin of the
offender's girlfriend. On the night of the criminal incident, the offender
came to the applicant's home where his girlfriend (her cousin) was
staying. The offender banged on the door and was verbally abusive. After
the girlfriend admitted him into the applicant's home, the applicant asked
him to leave twice before finally pushing him toward the door. He punched
her twice in the jaw and once in the head. She suffered a broken jaw.
After the assault, the applicant's cousin's pushed the offender out and
locked the door. The offender was convicted of assault occasioning bodily
harm. The Assessor awarded $7000, but reduced the award by 10% for
contribution. -
By shoving an unwelcome, abusive man
towards the door, victim had contributed to her injury. Second
Scenario -
In this case, the male applicant was the
defacto of the female offender. The offender had been drinking heavily and
was upset that the applicant's old girlfriend had returned to town. The
couple argued throughout the evening and the applicant admitted slapping
the offender on a number of occasions. The offender's father was also
present and bashed his daughter. The offender left the home and got into
her friend's care for a lift . The applicant followed her to her car and
ordered her out. She stabbed the applicant and was subsequently convicted
of causing grievous bodily harm. The applicant was awarded $7500 with no
contribution being found. -
In this incident a bashed woman
attempted to leave an abusive situation. The applicant's behaviour which
contributed to her desire to leave and prevented her from leaving was not
found to have contributed to his injury. An anomalous result given that
the applicant in scenario one was penalised for shoving an abusive man out
of her house, and the applicant in this scenario was not penalised for
pursuing his offender once she had left and he was, for all intents and
purposes, safe. Third Scenario -
The applicant
and offender were in a defacto relationship. The couple had been drinking
heavily all day and arguing for several days. The day before the criminal
incident, the applicant threatened the offender with a knife. On the day
of the incident the offender, after being punched by the applicant,
backhanded her onto the bed. He later cut the applicant's neck and
forehead with a knife. For these injuries he was convicted of unlawful
wounding. The Assessor reduced the applicant's $7500 award by 20% for
contribution, finding that the mutual hitting and abusing contributed to
the applicant's knifing injuries. -
The disparity in injuries received in this fight (a punch and a threat
versus $7500 in injuries) casts doubt on whether this was an incident
of mutual combat. Reading between the lines, it could more easily be
described as an instance where a woman's attempts at self defence
proved unsuccessful.
Provocative Conduct
-
Even when a victim has not fought back so as to attract the label of a
co-combatant, she can still be deemed to have contributed to her injuries
by having provoked her abuser into violence. A common retort of batterers
is that they were in fact provoked by a woman's behaviour. In one file
reviewed, an offender alleged that his ex wife's demand for maintenance
and her refusal of access to his children excused his criminal behaviour
of attacking his wife with a knife. He was convicted of attempted murder
and his claim of provocation dismissed by the Assessor. -
James Ptacek, in "Why Men Batter Their Wives"[24] explores this excuse for violence. He explains that
men, who claim provocation, equate verbal aggressiveness with physical
aggressiveness. A woman's verbal behaviour excuses them of responsibility
for their violence.[25] He argues that even if
one took this extreme position, the question that remains is who
"provoked" the verbal aggressiveness.[26]
Furthermore, he continues, this provocation argument implies that there is
a proper way a wife can address her husband, and that the husband is
empowered to maintain this behaviour.[27]
Apparently in our society the wife cannot be excused for her verbal
excesses, but the husband can be excused for his physically retaliatory
behaviour. Ptacek concludes "that `loss of control' and `provocation'
cannot explain violence; they merely serve as excuses, as
rationalisations, and as ways of obscuring the benefits (however temporary
or enduring) that the violence provides... at the individual level they
obscure the batterers' self interest in acting violent; at the societal
level they mask the male domination underlying violence against women."[28]
-
In criminal prosecutions, provocation can be used as a defence to a
criminal charge of assault. The Criminal Code of WA provides that a
defendant must have been in fact deprived by the provocation of the power
of self control, and act upon it on the sudden and before there is time
for his passion to cool.[29] The force used
cannot be disproportionate to the provocation. The force must not be
intended to, or likely to, cause death or grievous bodily harm. The
defence is not available to the charge of causing grievous bodily harm or
unlawful wounding.[30] If the defence is
successful, the defendant is found not guilty. -
It appears
that a much wider defence is available to offenders under the Act. As
Section 25 indicates, the Assessor shall have regard to any behaviour,
attitude or disposition of the applicant... which contributed, directly or
directly, to the injury or loss suffered."[31] A
review of several of the files indicates that an offender's violence is in
fact accepted as being provoked by the applicant's behaviour, no matter
how trivial. Scenario Four -
The applicant had
been living with the violent offender, and had previously fled to refuges
for assistance. On the evening of the criminal incident, the applicant had
"been picking on the offender about one of his girlfriends until he got
angry and couldn't take it anymore" When she realised that the offender
was angry and likely to harm her, she grabbed a knife from the floor,
thinking she might need it to defend herself. In the course of grasping
the knife, she accidentally cut one of her friends and immediately dropped
the knife. The offender, knowing she was unarmed, grabbed a chopper and
bashed her on the head cutting her above the eye. He then took the blunt
end of the chopper and again bashed her on the head. He was subsequently
convicted of unlawful wounding. The applicant's award of $2500 was
reduced by 20% for contribution. -
In this case, note that
under the Criminal Code, the defence of provocation was unavailable to the
offender at trial. Also note that the provocation of "picking on him
about one his girlfriends" was determined sufficient to contribute to her
injuries which resulted in a criminal conviction for unlawful wounding.
Scenario Five -
The applicant cited three
separate incidents of physical abuse. In the first incident, her sternum
was broken when her defacto shoved her. She did not report this incident
to the police, saying, "I did not consider the police would appreciate a
person reporting an incident where their spouse pushed them." In the
second incident, the applicant poured half a glass of wine over the
defendant after he had been accusing her of being unfaithful throughout
the evening. He reacted by head butting her; she suffered a fractured eye
socket and cheekbone. The following day the offender pusher her head into
a wall, then threw her into another wall with such force that her head put
a hole through the asbestos panelling. Her award of $10,000 for the
severe injuries
she received, was reduced by 15% for her contributory conduct of pouring
a half of a glass of wine on her attacker. -
The offender
absconded from the jurisdiction and was not brought to trial. Even if he
had been, it is doubtful whether he could have raised a defence of
provocation, and extremely unlikely it would have been successful.
Scenario Six -
Domestic violence was again shown
to be of an ongoing nature. The offender had previously bashed his
defacto, broken her hand, and caused cuts to her face. The criminal
incident in the application consisted of his pushing her head into a wall
and attempting to rape her. Though the matter was reported to the police,
the offender was not charged because there were no witnesses and the
police believed the applicant had provoked the offender while under the
influence of alcohol. Relying on this police statement, the Assessor
reduced the $3000 award by 20%. -
The question that arises in
this case is what standard the police used to determine that the offender
had been provoked? If there were no witnesses to the incident, what
witnesses were there to ascertain provocation? Commentary On
Contributory Conduct -
The Criminal Injuries Compensation
scheme is intended to compensate victims of crime. The victim must have
been injured by the offender's criminal behaviour. If the criminal law
allows a defence (such as provocation) to be asserted to avoid criminal
responsibility, then the defence should be available to the offender to
avoid liability for Criminal Injuries Compensation. In the majority, if
not all, of the above case scenarios, the offender would not be able to
raise the defence of provocation or self-defence in a criminal trial. The
offender's behaviour would most likely be considered disproportionate to
the provocation or the threat so as to preclude the defence being
successful. -
Assuming for argument's sake that an offender
could be excused in a criminal trial for his conduct, the victim would
still be able to pursue civil damages against the defendant for an
intentional tort (assault and battery for example). In such actions,
the offender will be unable to raise the defence of provocation to reduce
compensatory damages.[32] These defences are not
available in an intentional tort action such as battery or assault.[33] These exclusions, it has been asserted, arose
as a "matter of comparative fault, in that there was a difference in
failing to take proper care for his own safety, and the deliberate
wrongdoing of the defendant' and that "not only was it a matter of
comparative fault, but also a penal measure designed to repress flagrantly
wrongful conduct." [34] The offender would,
furthermore, be unable to raise any alleged contributory negligence of the
victim.[35] -
The limitation on the
offender's use of such defences make sense. Society is willing to allow an
offender to avoid the most severe of societal sanctions, criminal
responsibility, when his unlawful behaviour is the result of provocation.
Society is not, however, willing to allow him to escape financial
liability for the damage caused by his intentional conduct. -
By limiting Criminal Injuries Compensation to criminal acts, society is
essentially sanctioning the use of the same approach -- it will use
taxpayer's money to compensate for criminal behaviour, but not all
unlawful behaviour. However, the Act goes much further. It allows the
behaviour of the victim, not the offender, to be scrutinised to an extent
not allowed elsewhere in criminal or tort law. If the behaviour of the
offender is criminal (and intentional), the contributory conduct of the
victim is irrelevant. The apportionment legislation of Western Australia
specifically provides that "except in the case of an indictable offence
arising out of some negligent act or omissions, no contribution may be
claimed by a person who is responsible in tort if in the circumstances of
the case he is, or might be found guilty of any indictable offence
(including an indictable offence punishable on summary conviction).[36] -
Furthermore, even when the
defence is allowed in negligence actions where the circumstances do not
indicate criminal behaviour, the plea must be specifically raised by the
defendant, who then bears the onus of proof.[37]
In contrast, the Criminal Injuries Compensation legislation allows the
Assessor, in fact requires her, to assert the plea, whether or not the
offender has made any objection of the victim's application.[38] -
As raised in the introduction, one of the
underlying rationales of the compensation scheme is to atone for the
state's failure to protect its citizens from crime. An argument could be
made that when an applicant seeks compensation from the State for its
failure to protect her, greater scrutiny of her behaviour should be
allowed. The State could argue that, as in any other negligence action,
the contributory negligence of the plaintiff is allowed to be raised as
defence, and is relevant. However, this rationale has been challenged as
being "open to objection that the relationship is simply too remote" and
as being "the weakest as an argument from legal theory as it runs into
constitutional problems of sovereign immunity and the public policy
argument which militates against conferring on the individual the right to
sue the State."[39] Furthermore, "the injunction
to reduce or deny is the reverse side of the tort coin: it is the
plaintiff who is having his knuckles rapped for bad behaviour."[40] -
If the ' State Is Responsible' rationale
is abandoned, then the scheme's function should be limited to awarding
damages for injury caused by criminal behaviour which is not excused
except by legally recognized defences. There would be no legally
recognised right for society to further scrutinise the applicant's
behaviour. -
Furthermore, if the scheme is to be used as a
vehicle for social education (to educate citizens on what is acceptable
behaviour), then any proscription on victim behaviour must be clearly
delineated. Otherwise the educative function of the scheme is in
effective, and the overall credibility of the scheme suspect. An applicant
will perceive her treatment to be arbitrary and subject to the individual
and personal values of the Assessor. -
The other intended
purpose of the scheme is to provide compensation to victims who would
otherwise be unable to recoup damages for injuries because of the
impecuniosity of the offender and the inherent difficulties of accessing
the civil courts. If the Act is to serve this goal, then the standards it
employs should reflect those available to a plaintiff in a civil action.
The procedures and standards should not be more severe or onerous,
otherwise the benefits of using the compensation scheme as an alternative
forum disappears. -
In the context of domestic violence, the
examination of victim's behaviour is particularly inappropriate. Again,
society is looking for a way to hold her responsible for her abuser's
violence. Is it in anyone's interest, beside the abuser's, to ascribe
blame to the victim? By reducing an award under the misconception that the
injury occurred during "mutual combat" or because the victim provoked the
abuser in some way (a way which would not be recognized in criminal law),
the scheme reinforces the belief that there is a proper way for a woman to
treat her intimate, and that if she misbehaves she will be held
responsible for her abuser's violence, no matter how disproportionate it
is. Subjecting the victim's behaviour to these vague and misconstrued
inquires legitimises an offender's use of violence to control, and
reaffirm his sense of entitlement to power. This in turn affirms all men's
sense of entitlement to power and control over women. -
Arguably, when an application is received by the Assessor, and the
offender has been found guilty of a crime, it is inappropriate for her to
further scrutinise the victim's behaviour. In the case of In Re Hondros,[41] the Court ruled that in considering an
application for an award, it was bound to act upon the view of the
testimony given at the trial. The statute did not contemplate that the
issue of whether the applicant had contributed to her own injury should be
re-litigated when an application for compensation is made under the
statute.[42] This reasoning could be used to
support an argument that if the provocative conduct was not allowed to be
raised as a defence, or deemed insufficient at law to constitute a
defence, the issue of provocation should not be re-litigated by the
Assessor. If the offender was not brought to trial, either because the
prosecutor declined to charge, or the offender absconded from the
jurisdiction, then the Assessor could consider whether there was
provocation sufficient to negate criminal activity. If the provocative
behaviour would not be sufficient at criminal law, then the inquiry should
stop. B. FAILURE TO COOPERATE WITH LAW ENFORCEMENT
-
Section 24 of the Criminal Injuries Compensation Act
contains a formidable hurdle for a victim of domestic violence. That
section states that the Assessor shall not make an award to an applicant
if: "the Assessor is of the opinion that the applicant...did not do any
act or thing which he ought reasonably to have done to assist in the
identification, apprehension or prosecution of any person alleged to have
committed that offence or alleged offence."[43]
-
On its face this section seems appropriate. If a victim
wishes to receive compensation for a criminal offence, then she should
cooperate with authorities who seek to bring the offender before a court
to face criminal charges. The key word in the section, however, is
"reasonably." What would be reasonable in the context of an assault by a
stranger will not necessarily be reasonable in the context of an assault
by an intimate.[44] Need to Recognise
Offender's Behaviour as Criminal -
Firstly, this section
assumes that both the victim and the relevant authorities will in fact
recognise that the offender's behaviour is criminal. Quite often police
view a domestic violence calls as just another "domestic", a waste of
their time, and a situation which is best characterised as a family
matter.[45] It is difficult to assist police in
the enforcement of a criminal matter when they themselves do not believe
the matter should attract their attention or time. -
Secondly, through the provision and reliance on civil remedies to stop
abuse, the courts and other criminal justice system agencies have
perpetuated the view that domestic violence is not criminal.[46] Victims are often advised to seek a restraining order
against the offender for his breach of the peace. The order, if granted,
is an accepted means of controlling and addressing violence against
women.[47] While such orders may offer some
protection to some women, the criminal nature of the offender's behaviour
which prompted the victim to seek judicial assistance in the first place
should not be ignored. -
Thirdly, a victim herself may not
believe that the violence she has suffered is in fact criminal. As
described in the previous section,[48] one
victim did not think the police would appreciate her bothering them about
her de facto pushing her down (a push which caused a broken sternum).
Furthermore, if a victim has sought the assistance of the courts to obtain
a restraining order against the offender, she may believe that the civil
remedy is all that is available to her. If, after relating the facts
necessary to obtain an order, the court gives no indication that the
offender's behaviour is criminal, the victim may adopt this perception
herself. Need to seek law enforcement assistance
-
When a woman calls the police for help in dealing with a
violent offender, this decision, and all subsequent ones, are influenced
by a "complexity of relationship and concerns."[49] -
Her situation is not easily dealt with by
traditional police procedure and practices used to deal with crimes by
strangers.[50] By calling the police, she risks
losing her relationship with the offender and all that it entails - love,
economic support, the relationship the offender may have with her
children.[51] Quite often what she wants is to
have the violence end, not the relationship and everything it means.
Unfortunately, a police response cannot guarantee the end to the
violence.[52] In fact, if the victim calls for
help, the offender may retaliate with increased violence.[53] Insisting that women report the abuse requires her to
risk losing the relationship (and its attendant support), and also puts
her at risk for increased violence by the offender. -
If the
victim has decided to terminate the relationship and seeks police
assistance to get the offender out of her life, she will then "expose her
family life, and the history of past dispute to the scrutiny of the
police, the courts, and the Board, and a feeling of degradation or
humiliation may provide a bar to her taking any action at all."[54] These feelings can also explain why a victim may
withdraw a complaint after police intervention has occurred.
Unfortunately, the police view the withdrawal of a complaint as an
indication that the matter was not criminal after all. They fail to
appreciate the victim's underlying motivation. They fail to acknowledge
that if they had properly conducted an investigation into the facts
surrounding the crime (interviewing potential witnesses, gathering
collaborative evidence such as hospital records, seeking a confession from
the offender), the need for a victim's complaint might be unnecessary.
-
The following scenarios reflect the Assessor's failure to
recognise the difficulties faced by women in seeking the intervention of
law enforcement authorities. Scenario Seven -
The victim, a year 12 student, was the step daughter of the offender.
The offender was violent towards both the applicant and her mother. The
abuse against the applicant which formed the basis of her application
occurred over a two month period. During this period, the applicant
obtained a restraining order against the offender. This restraining order
was subsequently confirmed five months later when the offender was
arrested (and later convicted) of attacking the applicant's mother with a
knife. -
The applicant sought compensation for injuries
resulting from the offender punching her on the upper body and head. Her
condition deteriorated over time to the extent that surgery to correct her
jaw was contemplated. She required anti-depressant medication and
psychological counselling. -
At the time of the alleged
offences, the offender would not allow the victim to use the telephone or
to leave the house because he was afraid she would call the police. Any
attempt by the applicant to do either was met with more violence and
threats. -
The victim's application was filed outside the
three year limitation period contained in the Act. The Assessor granted
the extension to allow the application to proceed. She, however, denied an
award because the victim had failed to comply with the requirement of
Section 24 (cooperating with police authorities.) The Assessor identified
two reasons for these requirements: to guard against fraudulent claims
when no person has been brought to trial, and to assist the Crown's right
of recovery against the offender. Specifically she found that it seemed
"inconsistent for the applicant to have the resolve to seek a court order
and yet not have the resolve to make a complaint to the police."
-
The Assessor failed to consider that the applicant may have
felt there was far less risk in seeking a civil remedy (the restraining
order) where it would not be necessary for her to face the offender, than
for her to contact the police who would surely require some form of
confrontation with her stepfather. She may have just wanted the violence
against her to stop, but not have wanted to be responsible for breaking up
her mother's marriage. One might also inquire why the Court ,which issued
the restraining order, did not notify the Department of Family and
Children's Services that a minor was living in an abusive household and
had been seriously injured as a result of her stepfather's violence.
Scenario Eight -
The applicant and offender
were an estranged de facto couple. On the evening of the alleged
offences, the couple argued over the care of their child. The offender
chased the applicant, threw her to the ground, and kicked her. She
escaped and drove home. He followed her, broke into her home, dragged her
into the shower where he held her head under water. He then stripped her
of her clothing. She ran to a neighbour's home for help, but was caught by
the offender and forced back into her home. He then hit her on the face
causing her to pass out. She suffered a broken finger, bruised thigh, and
a black eye. -
The applicant reported the incident to the
police and her statement was taken. The police noted that the offender
intended to plead guilty. Approximately two weeks after the incident, the
victim withdrew her complaint. After receiving the application for
compensation, the Assessor advised the applicant that she would be
unlikely to satisfy the requirements of section 24 because the charges
against the offender had been withdrawn. The applicant did not respond to
the Assessor's notice, and the file was closed.
-
The circumstances in this scenario indicate that had the police
properly obtained available collaborative evidence from the neighbour,
doctors, and offender, there would have been sufficient information to
proceed without the statement of the victim. By making the initial contact
with the police, the applicant could reasonably be viewed as having done
everything that she ought to have done. Unfortunately, the police did not
do everything they should have done. Commentary -
To address the special needs of victims of domestic violence, the term
"reasonable" should be interpreted liberally and in the particular context
in which domestic violence occurs.[55] In both
of the scenarios detailed above, the victim did, in fact, do everything
that was reasonable for her to do. -
The Criminal Injuries
Compensation Board in Britain, which has similar requirements for victim
cooperation with authorities, has held: "Provided that
a victim co-operates with the authorities, his express wish that there
should be no prosecution, or his refusal to make a formal complaint,
should not preclude him from compensation. Where the victim does refuse to
press charges, the Board will specifically ask the police whether, in all
other respects, he co-operated with them."[56] -
There are many legitimate
reasons why women do not contact police when domestic violence occurs.
Fear of retaliation, past futile dealings with police, intimidation by the
abuser, and a reluctance to be scrutinised by unsympathetic law
enforcement authorities, are all reasonable explanations for not seeking
outside help. It is inconsistent to have a requirement to seek such help
if to do so is counter productive, and potentially life threatening. If
the criminal justice system was truly interested in bringing men who abuse
women to justice, then the appropriate mechanisms to ensure the victim's
safety and cooperation must be in place before society can expect her to
avail herself of the system's help. C. AWARD CANNOT BENEFIT
OFFENDER -
Section 23 of the Criminal Injuries
Compensation Act states: "The Assessor shall not make
an award of compensation to an applicant of he considers that, by reason
of any relationship or connection between the person who committed the
offence.. and the applicant.., any compensation awarded is likely to
result in a benefit or advantage to the person who committed the offence
or alleged offence."[57] -
Again, on its face this section makes sense. It forecloses the
possibility of collusion on applications and ensures that criminal
activities will not be rewarded.[58] However, in
the context of domestic violence, this provision fails to take into
account the reality of a victim's circumstances -- circumstances which are
( or may be) beyond her control. -
Firstly, this requirement
assumes that if the victim and the offender share the same household, they
are sharing a common household purse. It is possible that, for all intents
and purposes, they live separate lives and that the only reason the victim
remains in the home is that she has insufficient independent income to
move out.[59]An award for compensation for
injuries caused by her abuser could, in fact, be her ticket to freedom.
The Assessor could make an award, place it in trust, and release the funds
when the applicant has found alternative accommodation. Alternatively, an
award could be made directly to a third party, the funds earmarked for a
particular purpose. There were no applications in the review of files
wherethis hurdle was faced by an applicant. IV. CONCLUSION
-
This article demonstrates that the Criminal Injuries
Compensation Act contains inappropriate and inconsistent standards which
serve to deny victims of domestic violence due compensation for crimes
committed against them. Its strictly "legalistic" approach to
compensation is flawed in two primary ways. First, by looking for
contributory conduct in the victim, the Act creates defences to otherwise
actionable conduct. The offender would not be able to assert a defence in
criminal law, or allege contribution in tort law for his victim's
behaviour. Second, the Act ignores the social and psychological context
in which domestic violence takes place. The Act's attempt to award
compensation only for the "truly deserving", and for those who are deemed
not to be the "author of their own misfortune" is used to blame women for
remaining in an abusive relationship or not seeking the assistance of the
legal system when leaving it. . The realities of the context in which
domestic violence occurs is ignored. As a result, the criminal offender
is allowed to escape potential financial responsibility for his actions.
-
Section 25 of the Act should be amended in two ways. First,
the section should be amended to prevent a reduction in compensation
unless the reduction is one which would be recognised and allowed in a
civil tort action. Perhaps more importantly, Section 25 should be amended
to prevent the reduction of compensation for provocation unless the
offender would have such defence available to him in a criminal
prosecution. -
The requirement that the victim fully cooperate
with relevant authorities also fails to address the realities of the
victim's life and the realities of the criminal justice system. The woman
victim is held accountable for society's failure to implement effective
intervention practices which would enable the victim to access outside
agencies for assistance. Those interpreting the Act ascribe mal intent to
the victim for failing to report the criminal act, or failing to cooperate
with police. This interpretation refuses to acknowledge that some women do
not view the law enforcement authorities as a potential source of help,
and that some women would be putting their life at risk if they made such
contact. Section 24 requires the applicant to do "any act or thing which
... [the applicant] ought reasonably to have done." The term "reasonably"
must be interpreted in light of the reality of the victim's life
situation, and with reference to the societal context in which domestic
violence and the victim's response to domestic violence takes place.
-
As noted in the introduction, the Western Australian criminal injuries
compensation scheme is intended to compensate innocent victims of criminal
abuse. While the State cannot fully compensate such victims, if the
scheme is to achieve its purpose of compensating innocent victims and
assessing responsibility on the part of criminal offenders, then the Act
must focus on the offender's behaviour not the victim's. The reforms
suggested in this article are essential if the Act is to achieve its
purpose, and more vitally, these reforms are essential to overcome the
view that innocent women victims of criminal abuse are, somehow and in
some way, responsible for that abuse.
Notes [*] Ms Jurevic, BS, Portland State University; JD
Lewis & Clark Law School, is a Lecturer in Law at Murdoch University
School of Law. She thanks Ms Jo Goodie for her invaluable research
assistance and her dedication in reviewing 620 files at the Office of the
Assessor. She also thanks the Office of the Assessor for making the
files available which form the basis for this research. [1] See generally Stubbs J. (ed), Women, Male Violence and
the Law, (Sydney: Institute of Criminology Monograph Series N.6, 1994);
Buzawa & Buzawa, Domestic Violence: The Changing Criminal Justice Response
(Westport: Auburn House); Seddon N, Domestic Violence in Australia, (2 ed) (Annandale: Federation Press, 1993)
[2] Veitch E and Miers D, "Assault on The Law
of Tort" 38 Mod L Rev 139 at 147 (1975)
[3] Id at 148
[4] Id at 150
[5] Ibid
[6] See generally, Westling, W "Some Aspects
of the Judicial Determination of Compensation Payable to Victims of Crime" (1974) 48 ALJ 428; Victims of Crime Working Party "What About Me? Office of the Attorney General Western Au
stralia; Miers, P Compensation For Criminal Injuries (London: Butterworths, 1990)
[7] Ibid
[8] Ibid
[9] Western Australia Parliament
Parliamentary Debates (Hansard) Vol 255 ,1985 at 1034 (17 September 1985)
[10] Ibid
[11] Western Australia Parliament
Parliamentary Debates (Hansard) Vol 256, 1985 at 1790 (8 October 1985)
[12] Granted the State will still pursue a
separate criminal action against the offender if possible, but the Criminal Injuries Compensation scheme provides the opportunity for relief if this is not feasible, for example, when
the identity of the offender is unknown, or if there is insufficient evidence to proceed with a criminal prosecution.
[13] This assumes that the applicant may be
seeking financial assistance from the State via Social Security, or other welfare entitlement programs. While many victims would prima facie be ineligible for such assistance, the in
tended benefits of these programs is to offer financial assistance for citizens in financial need who meet predetermined eligibility standards.
[14] Above, note 2 at 150
[15] Above, note 1, at 151 : "If a victims
compensation scheme purports to compensate for injuries, then previous bad character has no relevance whatsoever; if it has relevance then the scheme performs more than a simple compe
nsatory function. The injunction to reduce or deny is the reverse side of the tort coin: it is the plaintiff who is having his knuckles rapped for bad behaviour. If the function of legal institutions is social education then criminal injuries compensation
schemes are in the forefront. It is clear from the available reports of criminal injuries schemes that it is middle-class values that are being imposed."
[16] "On average it was taking nine to 12
months to compete a claim but it's now more like 12 to 15 months, so the backlog is growing... Last year (1994) 952 cases were finalised, either by awards or refusals, out of 1286. At
the end of 1994, there were 1873 cases waiting to be processed. "Cash No Cure For Crime Victims" Sunday Times 13 August 1995
[17] See generally, Wessex, M "Criminal
Injuries Compensation and Family Violence" [1983] Journal Of Social Welfare Law 100
[18] Criminal Injuries Compensation Act 1985
(WA) section 7 [19] Id ss 23,24,25
[20] Western Australia Parliament
Parliamentary Debates (Hansard) Vol 2**, 1982 p 4055 (20 October 1982)
[21] Yllo K & Bograd M (eds) Feminist
Perspectives on Wife Abuse (Newbury Park: Sage, 1988) pp 107-109
[22] Id at 107
[23] Id at 108
[24] Above, note 21, at 133
[25] Id at 145
[26] Ibid
[27] Ibid
[28] Id at 151
[29] Herlihy J & Kenny R, An Introduction to
Criminal Law in Queensland and Western Australia (3 Ed) (Sydney: Butterworths, 1990) at 208-211
[30] Id at 211
[31] Above, note 18, s 25
[32] But see Ween v Evans (1985) 2 SR 263
(WA), where a district court judge held that provocation could be a defence in a civil action. This area of the law is apparently unsettled in Western Australia. Section 247 of the Cri
minal Code Act does state that "It is lawful for any person to use such force as is reasonably necessary to prevent the repetition of an act or insult of such a nature as to be provocation to him for an assault; provided that the force used is not intende
d, and is not such as is likely, to cause death or grievous bodily harm." While a full analysis of the relevant sections is beyond the scope of this paper, one might inquire whether an offender, in the context of domestic violence would ever be able to su
stain this defence given the often trivial nature of the provocation claimed, and the extreme nature of his response to such provocation.
[33] See generally O'Regan R, "Provocation
as a Defence in Queensland in a Civil Action for Assault" (1990) 16 n.1 U Qld L. J. 117
[34] Hudson, A "Contributory Negligence as a
Defence to Battery" 4 Legal Studies (1984) at 340
[35] An offender would be most unlikely to
successfully raise the defences of violent non fit injuria or consent in the context of domestic violence.
[36] Law Reform (Contributory Negligence and
Tortfeasors' Contribution) Act, 1947 (WA) s 7
[37] See generally Trindade, F & Cane, P,
The Law of Torts in Australia (2 ed) (Melbourne: Oxford,1993)
[38] Criminal Injuries Compensation Act 1985
(WA) s 25 [39] Above note 2 at 149
[40] Id at 151
[41] In Re Hondros [1973] WAR 1
[42] Id at 3
[43] Criminal Injuries Compensation Act 1985
(WA) s 24
[44] Ferraro, K & Pope L, "Irreconcilable
Differences: Battered Women, Police and the Law" in Legal Responses To Wife Assault (Newbury Park: Sage, 1993) at 106-109
[45] Above note 17 at 104; and note 44 at 119
[46] Above note 17 at 104
[47] Supreme Court of Western Australia,
Report Of Chief Justice's Task Force on Gender Bias, (Perth WA, 1994) at 155-156
[48] See scenario five in text
[49] Above note 44 at 106
[50] Id at 108
[51] Brownlee, I "Compellability and
Contempt in Domestic Violence Cases" [1990] Journal of Social Welfare Law 107, at 112
[52] Above note 21 at 104
[53] Id at 106
[54] Above note 21 at 104
[55] When interpreting remedial legislation,
provisions should be interpreted liberally in favour of the intended beneficiary. See: Langer R, "Battered Women and the Criminal Injury Compensation Board: Re A.L.", (1991) 53 Saskatchewan Law Review 453
[56] Miers, above note 6 at 75
[57] Criminal Injuries Compensation Act 1985
(WA) s 23 [58] Above note 21 at 105
[59] Id
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