From: WOMEN AGAINST RAPE
David Lidington firstname.lastname@example.org
Justice Secretary – Ministry of Justice
28 July 2017
Dear David Lidington
Re Criminal Injuries Compensation Scheme and Authority (CICA)
We echo demands in the letters to you from MP Sarah Champion, shadow minister for women and equalities, and from a coalition of charities that the Criminal Injuries Compensation rules be changed, both widely reported in the media last week.
It has now been uncovered that the Criminal Injuries Compensation Authority (CICA) has denied compensation to nearly 700 child rape victims since 2012 on the grounds that they consented. Ms Champion said on Channel 4 News (18 July) that this is both morally repugnant and possibly flouts the law. The law states that the age of consent is 16 and that every person, whatever her age, has to have the capacity and freedom to consent.
WAR has helped victims as young as 13 since 1999 who were denied compensation on these same grounds. Below we add information gathered while working with rape victims, which show that the problem is even greater than has so far emerged.
For many years we have been supporting and campaigning for compensation with women and girls unfairly refused. The punitive treatment of these 700 victims is the tip of the iceberg. Consent is just one glaring example of the many backward and discriminatory rules that exist in the scheme, and in the way they are used. We have helped victims apply and when they are refused, we have helped them appeal. We have also worked with lawyers, academics and other professionals to press for changes to the CICA.
There is a broad consensus and a growing body of evidence that compensation must be overhauled for justice to be done. We call your attention to five other common injustices in CICA decisions that particularly affect victims of rape.
- CICA denies compensation to victims who delayed reporting to police
It is widely accepted that reports of rape are often delayed due to factors such as shame and pressure from others. This is out of step with improvements in the criminal law, where judges in criminal trials no longer warn juries that a delayed report raises suspicion of a false allegation of rape. Yet the CICA rules say they can refuse an award due to delay which they consider evidence of ‘lack of cooperation’ with the police.
- There is no legal aid for appeal hearings and victims are unfairly cross examined
In criminal courts, both judges and the CPS can now challenge the defence use of rape myths. At CICA appeals, the victim is usually unrepresented as there is no legal aid. She faces a CICA lawyer and any question, however prejudiced, can be put to her.
We recently complained in writing about the questioning of a teenager who had been raped at age 13. Despite evidence she has a learning disability and has been frequently suicidal since the rape, she was asked: What did she wear? Why didn’t she scream? As if the rape was her fault. This disregards criminal court protections for treating rape victims as vulnerable witnesses. We asked the CICA Appeals Panel whether they have guidelines to protect vulnerable claimants. They would not say. If they do, why are they not transparent? Why are they being flouted? If they don’t, why not?
- Living under the ‘same roof’ with your attacker before 1979 disqualifies you from receiving compensation
This archaic rule discriminates against victims of rape within the family. Parliament abolished the rule in 1979 but current claimants who were raped before 1979 are still penalised. It is generally acknowledged that many victims raped as children take years to come forward. Even where a man was convicted of raping her as a child, the victim is still refused. Every legal challenge to this has failed, and courts have sometimes ruled that since Parliament makes the CICA rules, Parliament must change them, not the court.
- Victims of rape who have a criminal conviction are denied compensation
Victims with unspent convictions are refused, no matter how minor the conviction. Victims have been refused compensation for rape when they didn’t pay a TV license! We helped get such injustices reported in 2015 in The Mirror and The Guardian. Last year we gave evidence in a judicial review against reducing an award to just 30%. The woman had been prosecuted for a ‘false retraction’ of rape by her husband – after pressure by her attacker she had withdrawn her truthful report and sent to prison. She was then penalised by the CICA for not co-operating with the prosecution and for two driving offences. After the JR she won 70% of the award. Barristers were so outraged by the injustice they acted for her pro bono. Preventing women from getting compensation due to minor convictions is discriminatory; it creates a moral distinction between victims who are considered ‘good’ or ‘bad’, even if the conviction has nothing to do with the incident of rape. It also penalises victims who may have been criminalised after the rape, often as a result of the trauma they suffered, e.g. sex workers and drug users. In addition, since legal aid was cut, neither judicial review nor appeal is available to most women.
- Out of time claims
The standard time limit of two years for applying after the crime can be extended in some circumstances. But discretion to extend is used sparingly by the assessor, whose main concern seems to be to save money not to help victims. Many have lost out because they had been actively discouraged by police to wait until the end of a trial, which pushed them over the two year limit. Others were pushed over the limit by being incapable of applying because they were too traumatised. The time limit should be extended to at least five years counted from the conclusion of criminal proceedings, and discretion should be exercised with more compassion.
The blaming of victims by the criminal justice system has been particularly contentious, and this has led to changes in law, training of police, judges and CPS prosecutors, and numerous policies and guidelines. We have made several written complaints about discrimination by the CICA as their practices do not reflect the changes in the laws and procedures of the courts in relation to rape.
The CICA hasn’t been told to believe victims of sexual violence. Their discriminatory decisions often imply that victims who apply for compensation are lying; lying in order to get compensation.
The disrespect and sexism the CICA has massively shown to victims who were under 16 is clearly part of a wider pattern which treats compensation as a bonus for ‘good behaviour’ rather than a victim’s right. Justice is the best healer and compensation is often the only official acknowledgement victims get – without it, it is much harder for victims to overcome trauma and rebuild their lives. There is ample evidence of offensive discrimination against women and girls who are victims of serious sexual offences. It is long overdue that CICA is updated (not cut as it was in 2012) and their archaic rules and the discriminatory use of discretion in the implementation of the Scheme ended.
 Victim Support, Barnardo’s, Rape Crisis, Liberty and the National Working Group, reported in The Guardian, Telegraph, Mirror, etc, 18 July
 We refer to the published research ‘Supporting Survivors through the Criminal Injuries Compensation Scheme: an exploration of English and Welsh Independent Sexual Violence Advisors’ Experiences’, by Dr Olivia Smith and Jessica Galey
 Mirror 2015 https://www.theguardian.com/society/2015/mar/17/rape-victims-denied-compensation-petty-convictions and The Guardian 2015 http://www.mirror.co.uk/news/uk-news/rape-victims-compensation-cut-because-5169620
 See “High Court rules in favour of rape victim who retracted”, Guardian 1 Aug.