Evidence from Women Against Rape to Ministry of Justice Review of Criminal Injuries Compensation Scheme, October 2020

The denial of compensation to victims of sexual offences with criminal convictions is a scandal. Survivors in our network have been denied what should be an unquestionable entitlement for the violent crimes committed against them. We are outraged that the MOJ omits this rule from the Review questionnaire despite commitments that it would be reconsidered.

Since 2017, our national campaign publicised CICA rules that disproportionately affect victims of sexual offences. We raised issues via MPs in Parliament, and directly with Ministers. In 2018 we sent an open letter to David Gauke, Secretary of State for Justice, with over 40 signatories opposing this and other CICA rules.

We wrote there:

Since 2015, at least 385 victims of sexual violence had been refused because of a conviction. Unspent convictions for non-violent and minor offences, including theft, drink-driving or an unpaid TV licence are routinely used to deny victims an award. The CICA claims that the state having once prosecuted us nullifies any claim we have for compensation as it was a drain on public resources. Instead, they should value the public service we performed of bringing a rapist or other violent criminal to justice, protecting everyone’s safety. To punish us twice – first for the crime that we committed, and secondly for the crime committed against us – is discriminatory. This affects some of the most vulnerable victims, penalising those who may have been criminalised as a result of the rape trauma they have endured. Victims often self-medicate with drugs or alcohol to soothe their pain, and then get convicted. Sex workers, even those without criminal convictions, face moralistic judgements on their ‘character and conduct’. We don’t want divisive moral judgements by the CICA as either good or bad victims.

The movement against this rule is growing, already comprised of victims, organisations, MPs, lawyers, academics, Victims Commissioners, the All-Party Parliamentary Group for Adult Survivors of Child Sexual Abuse and the Independent Inquiry into Child Sexual Abuse.

In 2018, Dr Olivia Smith (Anglia Ruskin University), published research from 25 independent sexual violence advisers (ISVAs), who like us had helped thousands of victims. It confirms that eligibility rules “impact more on vulnerable survivors.”

The Review paper states that it must “prevent individuals who have committed serious illegal acts from benefitting from State-funded compensation”. In 2012, the rule on criminal convictions was made more punitive, removing discretion which sometimes resulted in minor convictions being overlooked. But the Scheme refuses compensation to anyone with an unspent conviction, even those sentenced to a community order – i.e. who have not committed a “serious illegal act”.

In addition to the four cases below, WAR worked with women over years to challenge refusals on grounds of criminal convictions. Before 2012, many won on appeal after we helped spell out their circumstances, mainly women with convictions for sex work, shoplifting or minor drugs offences. But since discretion was removed, mitigating circumstances count for nothing.

EQUALITIES/DISCRIMINATION

The MOJ Review states that sexual offences now make up 25% of claims; and that 12% of those refused for criminal convictions were victims of sexual offences. Yet the Review paper denies any disproportionate impact on sexual offences victims.

Victims of sexual offences are disproportionately women and children. The Review acknowledges that reports to the police have tripled, and that some of the currently proposed “simplification” of the tariffs will disproportionately impact women, who are 60-70% of those claiming for such injuries. Simplification should make the system more accessible not more discriminatory against women who have suffered rape or sexual assault, often as children. The Scheme may face legal action on gender and age discrimination.

Although the media perpetuates the myth that the crime of rape is treated almost as seriously as murder, experience shows that is far from the reality. The Review does not mention that conviction rates for rape plummeted to around 1-2% of reported rapes, so that rape victims are among the least likely to get justice and protection. Compensation is often the only official acknowledgement of these serious crimes. For those us who are women of colour or immigrant, the Black Lives Matter movement has reminded the powers that be that the police are structurally sexist and racist, and CICA should bear this in mind when assessing evidence supplied by the police.

An award can speed recovery, as many victims suffer catastrophic mental and physical injuries. Patients struggle to get treatment from the depleted NHS and dwindling therapeutic services – many face years on a waiting list and rationed appointments. In addition, we suffer life changing impacts such as losing a job, eviction, marital breakdown fear of public transport . . . The refusal of justice and compensation for rape compound our injuries. As former Victim’s Commissioner Baroness Newlove wrote in her report in 2019, the Scheme should not be retraumatising victims. Those of us who are mothers may face having to go through the family courts as a result of reporting rape or domestic violence, and risk having our children removed as the trauma we have suffered is used against us and our children. A recent government review of the family courts found “sexism, racism, classism…” (Assessing the Risk of Harm to Children and Parents in Private Law Children Cases, June 2020)

The basic award for rape is a mere £11,000, and awards for sexual assaults are generally valued among the less serious “injuries”, unless you have a psychiatric report.

We urge the government to increase funding to the Scheme to reflect the injuries and the trauma, not to reallocate funding at the current level. Awards should be increased, and decisions sped up. There is a minefield of rules and most victims don’t even know the Scheme exists.

FOUR CICA REFUSALS ON CRIMINAL CONVICTIONS

Ms K was raped repeatedly by two adult men when she was 13. As an adult she finally found the courage to report it, identifying the men. The investigation is ongoing. One of the men is in prison for sexual offences against other children. Last year she applied to CICA but was refused, as soon after applying she was prosecuted for driving without insurance and refusing a sample test. Reporting the crime had brought difficult feelings up that she had suppressed for many years and she was struggling with her mental health. Given the CICA rule, there is no discretion to take such circumstances into account.

Ms M was seriously sexually assaulted at the age of eight by a male teacher at school. She had to report to the police three times to get them to take her seriously, and the attacker was finally jailed. Nine years after the assault, the attacker was convicted of three counts of sexual abuse of another girl, prompting her to blame herself that if the police had believed her earlier report, the second girl could have been spared her abuse. Many years later, in her thirties and suffering with Post Traumatic Stress Disorder, often suicidal but having been unable to get support from the NHS, Ms M applied to CICA but they refused any award as she had been convicted of threatening her employer when he refused to pay her wages. She is furious and said, “I didn’t have this criminal conviction when I was 8”.

“RT vs CICA – Upper Tribunal judicial review in 2016”. Ms RT had been refused an award despite suffering years of marital rape by a violent controlling husband. She appealed the refusal and was offered an award but with a 70% reduction for two reasons – 30% for a conviction for driving without insurance and 40% for pulling out of the prosecution of her husband before it reached court. In fact, the authorities prosecuted and jailed her for withdrawing her report which they believed was true – for the crime of ‘perverting the course of justice’ which is normally used to jail women the authorities decided had lied. The Tribunal judge over-ruled the 40% reduction as he agreed with the case we made that CICA had not taken into account the circumstances of her withdrawing from the prosecution. But this senior judge did not have the discretion to overturn the 30% reduction for her driving conviction.

Ms W at age 21 was raped by a taxi driver on Christmas Eve. He was acquitted in court. The trial judge ordered an investigation into why the case had five different officers in charge and a review of its basic investigation and file preparation. After the rape Ms K was scared to use taxis. The police stopped her while driving and found her very slightly over the drink-drive limit, having taken one glass of wine. She applied for compensation to CICA, and was awarded the standard £11,000 for rape, reduced by 30% for her criminal conviction. We helped her appeal as it was by then a spent conviction and there were other mitigating circumstances that year, so the reduction was reduced to 10%.

Enclosed: Open Letter to David Gauke, Secreatary of State for Justice, 2018 with signatories