Last month, movie mogul Harvey Weinstein finally handed himself in to the New York authorities, charged with rape and several other counts of sexual abuse. He is the subject of multiple complaints by dozens of women ranging from rape to sexual harassment over many years.
In spite of Weinstein thus far evading criminal proceedings, it has been reported that he has made various compensation payouts to women over a 20 year period.
The fact that he has escaped criminal prosecution thus far is puzzling.
Sexual assault or abuse is first and foremost, a crime.
When a victim of a sexual assault has the courage to report it, the police should investigate, and this should hopefully lead to a successful prosecution, and appropriate punishment (usually prison), for the perpetrator.
There are many reasons for engaging the criminal law in child abuse/sexual assault cases:
- Public safety
- Justice
- Retribution and revenge
- Accountability on the part of the perpetrator
The difficulty of getting a conviction
Unfortunately, conviction rates for rape in the UK reman disappointingly low; Dorset and Bedfordshire ranking in the top two worst areas for convictions.
In England and Wales last year (2016-17), there were 41,150 reported rapes. Of those reported only one in seven went forward to be prosecuted in the criminal courts, and only one in 14 ended with a conviction.
42 per cent of prosecutions were unsuccessful.
Of the rapes that were reported in England and Wales last year, 28,089 victims were adults and 13,061 were children under the age of 16.
And, 94 per cent of recorded rape offences against adults were against women and 78 per cent of recorded rape offences against children under 16 were against girls.
The fact that reported rapes rose from 35,699 in 2015-16 to 41,150 in 2016-17 - an increase of almost 5,500 - is alarming. But it may also demonstrate a new boldness on the part of victims previously inhibited, to speak out.
Many sexual abuse allegations fall short of rape, and statistics for the prosecution of indecent assaults are not available, but it would not surprise me if conviction rates for these offences were similarly low. The difficulties of successfully prosecuting sexual abuse and assault allegations are manifold:
- No direct witnesses to the assaults
- Disclosure is often not contemporaneous so no forensic evidence
- The defendant alleging the assault was consensual
- Limited corroboration
Why a conviction is important in a civil compensation claim
Following successful criminal proceedings, the complainant can consider a civil compensation claim. Particularly where the abuse is non recent, a conviction puts them in the strongest position possible to succeed in a civil claim.
A person bringing a civil compensation claim must overcome the time limit obstacle. The basic rule in English law is that a legal claim must be brought by a person’s 21st birthday (if harmed as a child), or within three years from the date of the sexual assault.
There are many reasons why victims of abuse /sexual assault are not able to report their experience until many years after it happened which include:
- Shame
- Guilt
- Fear of the perpetrator of the abuse
- Social stigma
- A sense they were responsible for the abuse
- Mental health issues
- Inhibition due to power imbalance with the perpetrator
This time limit rule seems particularly difficult and unfair, and has been abolished in Scotland.
The courts do recognise that there are good reasons why a victim of abuse delays in starting a civil claim. Judges do therefore have a discretion to allow a claim to be brought at a later time if it is fair to do so.
The court must consider whether a fair trial is possible. Where a criminal trial has just taken place and the perpetrator has been convicted, it is difficult for the potential defendant in the civil claim to argue that a fair trial is not possible – because a trial has just concluded! Where a conviction has been secured there will usually be few issues on liability, because the perpetrator has been found guilty in the criminal courts.
In summary, where a conviction has been secured, the time limit defence is very weak, and a civil case will usually be strong on liability. These aspects are key components of a successful civil claim.
Unfortunately whether or not you are able to secure a conviction of the perpetrator of your abuse is usually out of your hands. Much depends on whether the perpetrator is alive, whether he has legal capacity (he may have dementia for example), the competency and resources of the investigating police force, and the priority that force gives to your complaint.
Many victims of sexual assault and abuse are deprived of justice in the criminal courts, as the statistics show.
Nonetheless, if a police investigation does proceed a complainant would be well advised to fully cooperate with it, to maximise prospects of a conviction, which in turn will stand them in good stead for a civil compensation claim.
