Improving the Justice System Response to Sexual Offences: Report (html)

10. Improving financial assistance and truth telling for victim survivors of sexual violence

Overview

• A strong message the Commission heard in our inquiry is that people who have experienced sexual violence have a range of justice needs. These include financial assistance and a need to tell their story in their own way.

• We considered the role of financial assistance and truth telling for all victims of crime in our Review of the Victims of Crime Assistance Act 1996. We recommended that the Victorian Government replace the Victims of Crime Assistance Tribunal (VOCAT) with a new scheme. The government has begun work on this.

• The new scheme will change how financial assistance is provided to victims. It will create a forum where victims of crime can tell their story and have it officially acknowledged.

• The scheme will benefit people who have experienced sexual violence.

• In this chapter, we make recommendations to strengthen financial assistance and truth telling under the new scheme as justice options for people who have experienced sexual violence:

– The time limit for making an application should be removed.

– There should be a specialist stream run by respected decision makers with sexual violence expertise.

– The sexual violence decision makers should ensure ‘recovery payments’ are enough to recognise the impacts of sexual violence.

Financial assistance and truth telling have powerful benefits

10.1 The impacts of sexual violence can be profound. Emotional and psychological distress, physical harm, and disruptions to work life are just some of the impacts sexual violence can have. We discuss these negative impacts in Chapter 2.

10.2 Some victim survivors require practical support to recover. Government-funded financial assistance is an important way to provide this support. The money can be used to pay for medical, counselling and other costs, and to make up for lost income.

10.3 If people can make their own decisions about how to use financial assistance, this can restore a sense of agency and control.^[2] Financial assistance can have symbolic benefits as well—most victims of crime view it as an acknowledgment of their experience and suffering.^[3]

10.4 Other potential sources of money for people who have experienced sexual violence include:

• payments under redress schemes^[4]

• damages awards made by a court where the person harmed sues the person or institution responsible (civil litigation)

• compensation orders made by a criminal court following a guilty plea or conviction.

10.5 These are all important justice options. In Chapter 1, we explain why victim survivors should have access to a range of justice options. In Chapter 11 we make recommendations to improve access to civil litigation and compensation orders. However, these will not be suitable options in all cases. Civil litigation can be time-consuming. Compensation orders are only available if a crime is reported and the person responsible is convicted. Both keep the person responsible for the violence in the picture.

10.6 The limits of other justice options make it especially important that government-funded financial assistance is available to help people who have experienced sexual violence to recover. The importance of financial assistance was highlighted by people we heard from in our inquiry. One person we spoke with had to wait for the criminal justice process to finish before she could apply for financial assistance. This left her feeling powerless and at a loss:

10.7 Telling one’s story and being listened to respectfully can also be healing. People who have experienced sexual violence say they want to tell their story in their own way.^[6] Too often, they feel that they are not able to do this during a trial because of the adversarial system.^[7] We discuss problems with the adversarial system in Chapter 19.

10.8 Many want their story to be heard but do not want to engage with the criminal justice system at all.^[8] A ‘truth-telling’ process allows people who have experienced sexual violence to tell their story in a safe and supported environment. The person responsible for the violence does not need to be involved. The process can formally acknowledge the harm done and validate their experience.^[9] Insights they provide can be used to reform the justice response and other services.

10.9 Truth telling has been described by victims of crime as ‘powerful’, ‘empowering’ and ‘therapeutic’.^[10]

10.10 We heard about the ‘therapeutic effect’ of ‘well-measured and kind words’ from Springvale Monash Legal Service:

In many cases, this is the only recognition our clients may have received and it can be extremely powerful.^[12]

10.11 A survey of Australian women who had been sexually assaulted reached a similar conclusion. It found that for some women, comments by judicial officers in hearings for financial assistance were ‘the only form of belief and validation [they] received throughout their involvement with the [justice] system’.^[13]

10.12 Together, financial assistance and truth telling can be powerful justice options for people who have experienced sexual violence. In this chapter, we make recommendations to make these justice options more accessible, and more effective for acknowledgment and healing.

How does the current victims of crime assistance scheme work?

10.13 In Victoria, victims of any violent crime can apply to VOCAT for payments to help their recovery and to cover expenses resulting from the crime.^[14] The crime must have:

• happened in Victoria

• been reported to police within a reasonable time

• directly resulted in injury or death.^[15]

10.14 VOCAT is located within the Magistrates’ Court of Victoria, with magistrates and judicial registrars sitting as tribunal members.^[16]

10.15 The Tribunal can order payments if it is satisfied that it is more likely than not that the crime happened (on the ‘balance of probabilities’).^[17] This is easier to establish than the standard of proof used in the criminal justice system (‘beyond reasonable doubt’).

10.16 The Tribunal can order payments up to a total of $60,000 to cover:

• counselling (up to five hours of counselling to start, with additional sessions available but based on an application being made for each treatment plan)

• medical expenses

• loss of earnings (capped at $20,000)

• loss or damage to clothing

• safety-related expenses.^[18]

10.17 The Tribunal can order an additional ‘special financial assistance’ payment of up to $10,000. This covers physical injury or emotional distress that had a significant adverse effect.^[19]

10.18 As well as meeting practical needs, the payments may help communicate ‘the community’s sympathy and condolence for, and recognition of’ the effects of the violence, although this is not a formal aim.^[20]

10.19 When people apply for assistance, they may be required or choose to appear before the Tribunal.^[21] The Tribunal states that appearing before it can provide:

an opportunity for victims to give voice to the impact of the crime and to receive acknowledgement and validation of their trauma through a hearing process.^[22]

A new assistance scheme is due to start in 2023

10.20 In our 2018 review of the Victims of Crime Assistance Act 1996 (Vic), (VOCAA report) we recognised the benefits of VOCAT but recommended replacing it with an administrative scheme, removed from Victoria’s court system. We said this would have additional benefits, including that it would improve accessibility and fix existing issues such as long delays.

10.21 The Victorian Government accepted all our recommendations in principle and is working on the new scheme. It is due to start in March 2023.^[23] We do not have information about whether the scheme will work in exactly the way we recommended. In this chapter, we assume its main features will be the same.

10.22 The scheme was designed to provide a ‘victim-centred, trauma-informed model’ of financial assistance.^[24] Its purpose is to help victims of crime recover from the effects of the crime.^[25]

The new scheme has benefits for people who have experienced sexual violence

10.23 The scheme will meet more of the needs of people who have experienced sexual violence than the current victims of crime assistance scheme. Here we discuss the most relevant changes.^[26]

The new scheme will be faster, more accessible and less threatening

10.24 The scheme will be administrative. Its decision makers will not be judicial officers and the process will not be adversarial. This should make the application process fast and easy to access.^[27] It also responds to concerns that:

judicial decision making establishes an adversarial process for victims and … can make some … ‘feel like a criminal’ and that they must ‘prove themselves’.^[28]

10.25 Another concern has been that victims of sexual and other violence do not apply to VOCAT because the person responsible for the crime may be notified of an application and appear at the hearing.^[29] In the VOCAA report we said that notifying an offender is unnecessary because they ‘do not have a legal interest’ in the application, so issues of fairness do not arise.^[30] They should not have a role in a process that is ‘designed to meet victims’ legitimate needs’.^[31]

10.26 In this inquiry, we heard a range of similar concerns. One victim survivor told us that her experience at VOCAT was ‘retraumatising’.^[32] Another person who had experienced sexual violence said that going to VOCAT was ‘like going through another entire rape investigation’.^[33] Another said she did not go to VOCAT because the person responsible could be notified.^[34]

10.27 The Law and Advocacy Centre for Women said that some magistrates:

approach matters as they would an adversarial process, with a degree of scepticism that undermines the role of the court as a mechanism for redress, further retraumatises victims and undermines their trust in institutions to assist them.^[35]

10.28 The Centre also observed that ‘the mere possibility of [offender involvement] can operate as a huge deterrent to victims pursuing claims’.^[36]

10.29 Other submissions we received, including from InTouch Multicultural Centre Against Family Violence and the Law Institute of Victoria, highlighted that delay is a problem at VOCAT.^[37]

The new scheme breaks the link with criminal proceedings

10.30 In the VOCAA report, we said it is not necessary to put applications for financial assistance on hold while waiting for an outcome in criminal proceedings.^[38] Putting applications on hold is a common practice.^[39] In this inquiry, Springvale Monash Legal Service said that this:

can be distressing and frustrating. [People who have been harmed] can perceive this as … VOCAT doubting their story. Protracted delays may prolong [the wait for] access to funded counselling and so hinder … recovery.^[40]

10.31 The current scheme requires victims to report the crime to the police and, where relevant, assist the prosecution. If they have not reported the crime to police, they can still apply but they must explain why they did not report. In the VOCAA report, we recommended removing the reporting requirement.^[41]

10.32 This is especially important for people who experience sexual violence, because not reporting is very common (see Chapter 2). The reporting requirement can be an additional barrier to justice for some people or groups. Djirra pointed out, for example, that ‘because Aboriginal women are … less likely to proceed with pursuing charges through the police, their VOCAT claims can be, and often are, reduced’.^[42]

10.33 We recommended as well that the new scheme’s decision maker should be able to decide that a crime happened regardless of the status or outcome of other legal proceedings, even if a criminal trial ended in a ‘not guilty’ verdict.^[43] Once again, this is important for people who have experienced sexual violence, given low rates of reporting and conviction for sexual offences (see Chapters 1 and 2).

The new scheme extends the time to make an application

10.34 In the VOCAA report, we recommended removing the time limit for applications to cover counselling costs,^[44] and extending the time limit for other forms of assistance to 10 years after a sexual or family violence offence.^[45] The time limit has already been removed for people sexually abused as children.^[46]

10.35 In this inquiry, we heard from a woman who was sexually assaulted by a stranger at knife point about how important it is to be able to access counselling expenses at any time. She was asked to support a criminal prosecution more than 20 years after the assault, after police matched DNA evidence following an arrest for a different violent crime. She agreed because she ‘felt a responsibility to do what [she] could so he could not harm others’.^[47] The court proceedings were distressing and traumatising. Afterwards, she applied for financial assistance to cover the costs of counselling. She was told she was eligible for only three funded sessions, because she had received compensation following the assault and it was too long ago for the original award to be varied.^[48]

The new scheme removes other conditions restricting access

10.36 In the VOCAA report we recommended that victims of sexual offences should not need to prove they were injured.^[50] In part, this is because people who have experienced sexual violence often have difficulty obtaining documentary evidence to prove they were injured.^[51]

10.37 We also recommended that a person’s criminal record should not affect their ability to apply for financial assistance, unless this record is connected to the crime they are seeking financial assistance for.^[52] As we were told in this inquiry:

The requirement that victims satisfy the court that they are of ‘good character’ in circumstances where they have had previous involvement in the justice system is degrading and demeaning to criminalised women who have suffered harm as a result of sexual assault and family violence.

It perpetrates a false dichotomy between ‘deserving’ and ‘undeserving’ victims …^[53]

10.38 Djirra told us that Aboriginal women with a history of criminal justice contact often have their VOCAT claims reduced.^[54]

The new scheme creates new categories of assistance and increases the maximum limit

10.39 We recommended introducing new and simpler categories of assistance, and an increase in the total maximum award that can be paid.^[56] We said the increased maximum is justified because the maximums have not increased in many years or been adjusted for inflation.^[57] We also noted that the Royal Commission into Institutional Responses to Child Sexual Abuse recommended a total maximum of $200,000 be available for any one victim under its proposed Redress scheme, with an average payment of $65,000.^[58]

10.40 The new categories and maximum awards we recommended include:

• for immediate needs—up to $5000 (this amount may be deducted from later awards for other forms of assistance)

• counselling costs—up to 20 counselling sessions, and more sessions as required, but only in exceptional circumstances

• practical assistance—up to $80,000 to cover such things as reasonable health, housing and safety-related expenses, and ‘financial support’ (covering loss of earnings, dependency payments and financial counselling; with no change to the cap of $20,000 for loss of earnings)

• recovery payments (lump sums to assist in recovery)—$20,000, or $25,000 for applicants who were the victim of two or more related criminal acts.^[59]

10.41 This would increase the maximum possible award of $70,000 to about $100,000 in total, for victims of one crime.

10.42 The new provisions for counselling costs will make more initial counselling sessions available. It will also reduce the burden of applying. For up to 20 sessions, there will be no need to provide treatment plans or to reapply with each new plan. If a person needs more than 20 sessions, they can authorise the scheme decision maker to get information from their counsellor to help them decide if there are ‘exceptional circumstances’.^[60]

10.43 In the current inquiry, a respondent to our online form told us she felt deterred from applying to VOCAT by the ‘need to quantify the effects of the crime’, such as how much psychological therapy might be required and how much that might cost. She said it was:

impossible to quantify the impacts … and even more difficult to predict how much support a victim needs to recover.^[61]

10.44 She supported the New South Wales approach.^[62] In New South Wales, victims can access up to 22 counselling sessions, and in exceptional circumstances, an unlimited number. The approach under the new scheme is very similar.^[63]

The new scheme would enhance truth telling and recognition

10.45 We also recommended a new category of non-financial recognition. This was designed to separate out the financial and ‘symbolic’ functions of the scheme.^[64] The new category would provide for recognition, acknowledgment and validation of a person’s experience. It would include provision for:

• recognition statements

• victim conferences

• restorative justice referrals.

10.46 Victims of crime would have a right to a written ‘recognition statement’. This would acknowledge in a personalised way the effects of the crime and express the state’s condolences.^[65]

10.47 Victims of crime would also be able to request a private conference with the scheme decision maker or a deputy decision maker.^[66] This would ‘ensure victims are given a voice’.^[67]

10.48 Our recommendations for victim conferences were informed by the private sessions run by the Royal Commission into Institutional Responses to Child Sexual Abuse. In these sessions, people who had been sexually abused could share their story with a Commissioner in a safe and supported environment.

10.49 The sessions had a flexible structure. People could share their experiences and their ideas for helping to protect children in the future in their own way. The Commissioner’s role was to ‘listen, [and] to bear witness’ on behalf of the nation.^[68]

10.50 We recommended that conferences should be conducted in a trauma-informed way and in a safe space. They should be able to cater to different cultural needs. People requesting a conference could have a support person and be legally represented. Scheme staff with responsibility for case management would assist them.^[69] Anything said in these private sessions could not be used as evidence in civil or criminal proceedings.^[70]

10.51 Finally, we recommended that victims of crime should be able to request referral to a restorative justice program.^[71] Our current recommendations in relation to restorative justice are set out in Chapter 9.

The new scheme would include specialisation

10.52 Our VOCAA report also discussed how important it is to develop a ‘culture of specialisation’ within the new scheme.^[72]

10.53 We said the new scheme should:

• have a dedicated decision maker who is supported by suitably qualified deputies, and subject matter specialists of appropriate standing^[73]

• require all staff to be specially trained

• include specialised case management teams.^[74]

10.54 Specialisation is especially important in sexual violence cases. We discuss the value of specialisation in Chapter 18.

The reforms in the new scheme should be taken further

10.55 These changes to the financial assistance scheme will improve the justice system’s response to sexual offences.^[75] As we heard in this inquiry, many of the concerns raised in our VOCAA report still exist today. Some are a greater problem for people who have experienced sexual violence than for other victims of crime. Based on these concerns, we have identified three ways to strengthen the new scheme.

Time limits should be removed

10.56 Among victim survivors who spoke to the Royal Commission into Institutional Responses to Child Sexual Abuse, the average time for disclosing child sexual abuse in institutions was 23.9 years.^[77] People had a range of reasons for not speaking about their abuse. Many said their delay in reporting was because they blamed themselves for the abuse or felt too embarrassed or ashamed to disclose it. Other said they had no confidence they would be believed, or they feared their friends and family would find out and think less of them.^[78]

10.57 Time limits for VOCAT applications for child sexual abuse have been removed to recognise the barriers to reporting faced by people who were abused as children.

10.58 The time limit for applications relating to other forms of sexual violence should also be removed. Some people sexually assaulted as adults take time to report. Many others do not disclose the violence at all. They may blame themselves or feel shame, or not trust how other people will react. A nationwide survey found that one in four women who had not contacted the police after they were sexually assaulted said it was because they felt ashamed or embarrassed.^[79] In our VOCAA report, we noted that people who have been sexually assaulted—along with ‘child victims’ and people who have experienced family violence—‘may take much longer to recognise the violence and/or its effects on them, and/or to disclose or report it’ than victim survivors of other crimes.^[80]

10.59 Removing the time limits for sexual violence applications would reflect the reality of reporting sexual violence, and the barriers to reporting. It would preserve financial assistance as a justice option for victim survivors, regardless of when they report. It would send a strong signal that people who have experienced sexual violence should not have to cope on their own, without support.

There should be a specialised response to sexual violence

10.60 In the VOCAA report, we recommended that the Victims of Crime Commissioner should be the decision maker under the new scheme, supported by deputy decision makers with specialist expertise.^[81] They would administer financial assistance and run the recognition stream under the new scheme.

10.61 It is crucial that the new scheme includes dedicated decision makers with specialist expertise in sexual violence.^[82] As we discuss below and explain in Chapter 18, sexual violence is different from other crimes and the people who work with victim survivors need to be specialists. People who have experienced sexual violence must be able to explain what happened to them to someone who understands the context of the offending and the impacts it can have. Additional specialisation within the pool of sexual violence decision makers should also be supported, to facilitate meaningful engagement with people from diverse communities.^[83]

10.62 The dedicated decision makers for sexual violence cases should be people with strong standing in the community. They should have positions of authority within the new Commission for Sexual Safety (see Chapter 22).

10.63 As we discuss in Chapter 2, for some victim survivors, it is important to have a ‘voice’ and to explain what happened and how it affected them in a ‘significant setting’, such as in a justice process, where it is publicly and officially acknowledged. Even if they choose not to report sexual violence to the police, they do not want it simply hidden from view.

10.64 As well as being told about the benefits of being heard and believed by someone in a position of authority,^[84] we heard that truth telling must be done well, in a way that does not trivialise the process:

Story and truth-telling options must be meaningful and ensure that what survivors have to say is heard and has impact. Tokenistic approaches to story and truth-telling will be counterproductive if not harmful to survivors.^[85]

10.65 The insights provided by people who have experienced sexual violence in victim conferences should be used to improve how society responds to sexual violence. The specialised decision makers could report to the government annually, via the new Commission for Sexual Safety (see Chapter 22) on the themes they see in victim conferences (where consent is provided). As we discuss in Chapter 2, victim survivors often have social aims in seeking justice, including preventing further harm to others and a sense of social responsibility.^[86] Their voices should shape our response to sexual violence.

10.66 In Chapter 6 we recommend that a working group should publish a report or analysis annually on sexual offending. We note in that chapter that the report should include data on justice options such as victim conferences.

Recovery payments should reflect the serious impacts of sexual violence

10.67 The amounts of financial assistance available currently and under the new scheme are not meant to reflect what a victim of crime would receive if they successfully sued the person responsible.^[87] This should continue to be the case. It would not be appropriate for the state to pay financial assistance equal to the awards that people can receive in civil litigation from the person or institution who was responsible for the harm or for failing to protect against it. The new scheme is designed to be a simple, non-adversarial process that contributes towards recovery. The scheme is publicly funded and must be sustainable.

10.68 The increased maximum payments that will be available under the new scheme balance the need to make the scheme affordable for government to run and the need to provide meaningful assistance so people can recover from the effects of crime. The increases were supported by many people we heard from during our VOCAA inquiry.^[88] They will keep Victoria broadly in step with other jurisdictions and reduce the gap between our financial assistance scheme and other schemes, such as the Commonwealth Redress scheme (Table 12).^[89]

Table 12: Comparative maximum awards—financial assistance for victims of crime

10.69 In our VOCAA report, we said that amounts of financial assistance should be based on ‘a victim’s specific circumstances’ and the impact of the crime, rather than on the type of offence.^[100] This is still correct as a general statement. However, the focus in our VOCAA report was not on sexual offences.

10.70 We now consider it important to recognise that sexual offences are distinctive. This makes the specialised expertise of sexual violence decision makers under the new scheme essential. The decision makers should take current research and evidence about sexual violence and its negative impacts into account in their decision making. This should especially be the case when they assess applications for ‘recovery payments’.

10.71 Recovery payments will replace ‘special financial assistance’ lump sum payments. They are designed to give people choice and freedom, allo wing them to ‘determine their own recovery pathway’.^[102] Unlike the other streams of assistance, they are not tied to the payment of expenses (such as health costs) or to covering lost income. They will be important for many people who have experienced sexual violence because the effects of the violence may not be obvious to other people.

10.72 The new decision makers should be conscious that:

• Misconceptions influence how people who have experienced sexual violence

are treated—both in the community and within the justice system (see Chapter 3).

• The negative impacts of sexual violence can be profound but are often underestimated (see Chapter 2).

10.73 A study of financial assistance awards in Queensland found myths about ‘real rape’ influenced payments in sexual violence cases. People whose circumstances fitted ‘real rape’ stereotypes, such as that rape occurs between strangers and there is evidence of physical force, were more likely to receive the maximum award than others.^[103] Maximum payments were more often awarded to those who did not delay reporting the sexual violence; had not been using alcohol or drugs; were not at a bar or party at the time of the offence; and did not accept the company of the person responsible.^[104]

10.74 The study was conducted using data from 2012–2014 and its authors suggest the misconceptions discussed may be less influential today.^[105] However, we have learnt during our inquiry that these misconceptions still feature in the justice system.^[106]

10.75 We have also been told about the damaging but often hidden effects of sexual violence. Many people who experience sexual violence take years to recover and feel permanently scarred. Some feel as if they will never recover.^[107] Sexual offending that occurs over a long period and involves an abuse of trust is particularly damaging.^[108] These effects have been poorly understood until recently. We need to do more to support people to recover, and to make sure that misunderstandings about sexual violence do not prevent them getting the help they need.

1. Consultation 81 (Danielle, a victim survivor).

   ↑

2. Consultation 56 (Cecilia, a victim survivor of sexual assault); Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996 (Report No 36, July 2018) [13.259].

   ↑

3. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996 (Report No 36, July 2018) 316 [10.15].

   ↑

4. Redress schemes are set up in an institution or sector to compensate people who have experienced sexual violence. Some are run by a single institution; others are run by government, with institutions covering some of the costs.

   ↑

5. Consultation 56 (Cecilia, a victim survivor of sexual assault).

   ↑

6. Centre for Innovative Justice, RMIT University, Innovative Justice Responses to Sexual Offending—Pathways to Better Outcomes for Victims, Offenders and the Community (Report, May 2014) 12, 86–91 <https://cij.org.au/research-projects/sexual-offences/>.

   ↑

7. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [3.78], [5.36], [7.5], [7.237].

   ↑

8. Submissions 9 (Djirra), 17 (Sexual Assault Services Victoria), 39 (Rape & Domestic Violence Services Australia).

   ↑

9. Submission 7 (Dr Bianca Fileborn, Dr Rachel Loney-Howes, Dr Tully O’Neill and Sophie Hindes); Centre for Innovative Justice, RMIT University, Innovative Justice Responses to Sexual Offending—Pathways to Better Outcomes for Victims, Offenders and the Community (Report, May 2014) 86 <https://cij.org.au/research-projects/sexual-offences/>.

   ↑

10. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996 (Report No 36, July 2018) [7.37].

    ↑

11. Consultation 69 (Deborah, a victim survivor of sexual assault).

    ↑

12. Submission 55 (Springvale Monash Legal Service).

    ↑

13. Denise Lievore, No Longer Silent: A Study of Women’s Help-Seeking Decisions and Service Responses to Sexual Assault (Report, Australian Institute of Criminology (Cth), June 2005) vi <https://aic.gov.au/publications/archive/no-longer-silent>.

    ↑

14. Victims of Crime Assistance Act 1996 (Vic) ss 1(2), 25(1).

    ↑

15. Victorian Government, ‘Applying for Financial Assistance from VOCAT’, Victims of Crime (Web Page, 19 August 2020) <https://www.victimsofcrime.vic.gov.au/going-to-court/applying-for-financial-assistance-from-vocat>.

    ↑

16. Although located within the Magistrates’ Court of Victoria, VOCAT is a separate entity with its own jurisdiction. It is a tribunal, not a court, exercising administrative rather than judicial power. But its functions are performed by judicial officers. See Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996 (Report No 36, July 2018) [4.18], [4.22]; Victims of Crime Assistance Tribunal, Annual Report 2019–2020 (Report, 2020) 6 <https://www.vocat.vic.gov.au/sites/default/files/publication/2020-12/13166%20VOCAT%20Annual%20Report%202019-2020_WEB%20V2.pdf>.

    ↑

17. Victims of Crime Assistance Act 1996 (Vic) s 31.

    ↑

18. Ibid s 8. These amounts, and the ‘special financial assistance’ amount of $10,000, are available for ‘primary’ victims only, who are people who were injured or died as a direct result of an act of violence committed against them: s 7(1).

    ↑

19. Victims of Crime Assistance Act 1996 (Vic) ss 3(1) (definition of ‘significant adverse effect’), 8A.

    ↑

20. Ibid s 1(2)(b). However, as we pointed out in the VOCAA report, ‘Hearings under the VOCAA are not legislatively established for the purpose of victim recognition.’: Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996 (Report No 36, July 2018) [10.10].

    ↑

21. Victims of Crime Assistance Act 1996 (Vic) ss 33, 34. Generally, applicants will be asked to attend if the crime was not reported to police, or if the offender contests the application.

    ↑

22. ‘Frequently Asked Questions’, Victims of Crime Assistance Tribunal (Web Page, 2016) <https://www.vocat.vic.gov.au/how-apply/frequently-asked-questions>. See also the objectives of the Victims of Crime Assistance Act, which include payment of financial assistance ‘as a symbolic expression by the state of the community’s sympathy and condolence for, and recognition of’ the effects of the crime: Victims of Crime Assistance Act 1996 (Vic) s 1(2)(b).

    ↑

23. Magistrates’ Court of Victoria, Magistrates’ Court of Victoria: Annual Report 2019–2020 (Annual Report, 2020) 25 <https://www.mcv.vic.gov.au/sites/default/files/2021-02/Annual%20Report_19-20.pdf>. See also Submission 45 (Victims of Crime Commissioner).

    ↑

24. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996 (Report No 36, July 2018) [8.124].

    ↑

25. Ibid xxiii [30].

    ↑

26. Other relevant recommendations that we do not discuss include that assistance should be available for all sexual offences (summary as well as indictable), including non-contact offences such as image-based offences: see ibid [12.148]. See also ibid Recommendation 27(b) and the discussion at [12.168]–[12.172]. In Recommendation 29 we also said that the ‘Government should conduct a review to determine whether the offences contained in the Sex Work Act 1994 (Vic) and any other offences that may have a significant physical and/or psychological impact on the victim should be recognised by the proposed Act.’

    ↑

27. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996 (Report No 36, July 2018) [8.122].

    ↑

28. Ibid [8.16].

    ↑

29. Ibid [6.7]–[6.14]. We were told that this happens rarely: ibid [6.14].

    ↑

30. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996 (Report No 36, July 2018) xxi [18].

    ↑

31. Ibid [8.120].

    ↑

32. Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).

    ↑

33. Consultation 63 (A victim survivor of sexual assault, name withheld).

    ↑

34. Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).

    ↑

35. Submission 58 (Law and Advocacy Centre for Women Ltd).

    ↑

36. Ibid.

    ↑

37. Submissions 40 (Law Institute of Victoria), 49 (inTouch Multicultural Centre Against Family Violence).

    ↑

38. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996 (Report No 36, July 2018) Recommendation 59(b).

    ↑

39. Ibid [5.157], [5.167]–[5.168], [15.164].

    ↑

40. Submission 55 (Springvale Monash Legal Service).

    ↑

41. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996 (Report No 36, July 2018) Recommendations 59(b), 60, xxvi [48], ch 15.

    ↑

42. Submission 9 (Djirra).

    ↑

43. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996 (Report No 36, July 2018) Recommendation 59. See also the discussion at [14.44]–[14.48].

    ↑

44. Ibid Recommendation 71(b).

    ↑

45. Ibid Recommendation 71(a)(ii). In Recommendation 73 we also said that the scheme decision maker should have a discretion to accept applications made out of time and that in considering such late applications, should have regard—among other things— to whether the alleged offender was in a position of power, influence or trust in relation to the applicant; the physical or psychological effect of the criminal act on the applicant; and the nature, dynamics and circumstances of the criminal act, including whether it occurred in the context of a pattern of abuse, including family violence.

    ↑

46. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996 (Report No 36, July 2018) Recommendation 71(a)(iii); Victims of Crime Assistance Act 1996 (Vic) s 29(1A).

    ↑

47. Submission 32 (A victim survivor of sexual assault (name withheld)).

    ↑

48. Ibid.

    ↑

49. Ibid.

    ↑

50. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996 (Report No 36, July 2018) Recommendation 31. See also the discussion in [12.230]–[12.249].

    ↑

51. Ibid [12.230]–[12.249].

    ↑

52. Ibid [15.121]–[15.129]. See also Recommendations 76, 77, 78.

    ↑

53. Submission 58 (Law and Advocacy Centre for Women Ltd). The Law and Advocacy Centre also noted that ‘Sexual assault can often be the trigger for or exacerbate underlying mental health or substance abuse issues, which in turn place women on a pathway towards criminalisation and imprisonment. Given the high instance of victimisation amongst women in the criminal justice system, this character test operates as a significant barrier to VOCAT assisting the victims that would most benefit from its assistance.’ See also Submission 27 (Victoria Legal Aid) recommending that the requirement to consider an applicant’s past criminal history should be removed.

    ↑

54. Submission 9 (Djirra).

    ↑

55. Consultation 63 (A victim survivor of sexual assault, name withheld).

    ↑

56. As well as the streams of assistance listed here, funeral expenses can also be covered if the primary victim was killed.

    ↑

57. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996 (Report No 36, July 2018) [13.337].

    ↑

58. Ibid [13.338].

    ↑

59. Ibid ch 13.

    ↑

60. Ibid [13.208].

    ↑

61. Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).

    ↑

62. Ibid.

    ↑

63. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996 (Report No 36, July 2018) [13.203].

    ↑

64. We concluded that ‘recognition can and should be provided in non-pecuniary ways’, whereas ‘financial assistance under the proposed Act should be reserved for expenses to assist in the victim’s recovery’: ibid [13.258]. See also [13.257].

    ↑

65. Ibid [10.99]–[10.104] Recommendation 11.

    ↑

66. Ibid [10.105]–[10.121] Recommendations 13, 14.

    ↑

67. Ibid [10.106].

    ↑

68. Ibid [10.35]. See also [10.31]–[10.36]; Centre for Innovative Justice, RMIT University, Innovative Justice Responses to Sexual Offending—Pathways to Better Outcomes for Victims, Offenders and the Community (Report, May 2014) 87 <https://cij.org.au/research-projects/sexual-offences/>.

    ↑

69. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996 (Report No 36, July 2018) 195–205, Recommendations 14, 16, 17.

    ↑

70. Ibid Recommendation 15.

    ↑

71. Ibid [10.168]–[10.186] Recommendation 18.

    ↑

72. Ibid [10.219] Recommendation 19.

    ↑

73. Ibid Recommendation 9(a).

    ↑

74. Ibid [10.213]–[10.234].

    ↑

75. Submission 45 (Victims of Crime Commissioner).

    ↑

76. Submission 69 (Victim survivor of sexual assault (name withheld)).

    ↑

77. Royal Commission into Institutional Responses to Child Sexual Abuse: Final Report (Report, December 2017) vol 4, 30 <https://www.childabuseroyalcommission.gov.au/final-report>. Note that the figure of 22 years is often cited. This comes from an earlier report of the Royal Commission, based on the private sessions it had conducted to that point: Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation (Report, September 2015) 444 <https://www.childabuseroyalcommission.gov.au/redress-and-civil-litigation>.

    ↑

78. Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation (Report, September 2015) 444 <https://www.childabuseroyalcommission.gov.au/redress-and-civil-litigation>; Royal Commission into Institutional Responses to Child Sexual Abuse: Final Report (Report, December 2017) vol 4, 78–82, 84–5 <https://www.childabuseroyalcommission.gov.au/final-report>.

    ↑

79. Australian Institute of Health and Welfare (Cth), Sexual Assault in Australia (In Focus Report, 28 August 2020) 5 <https://www.aihw.gov.au/reports/domestic-violence/sexual-assault-in-australia/contents/summary>.

    ↑

80. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996 (Report No 36, July 2018) [14.222].

    ↑

81. Ibid Recommendations 3, 9(a).

    ↑

82. The submission from the Law and Advocacy Centre for Women raises concerns that will be addressed through the VOCAA reforms, and also suggests that ‘in the immediate term, a specialist family violence and sexual assault list should be established within VOCAT’: Submission 58 (Law and Advocacy Centre for Women Ltd). The Law Institute of Victoria also recommends the creation of a VOCAT specialised family violence and sexual assault list: Submission 40 (Law Institute of Victoria).

    ↑

83. See Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996 (Report No 36, July 2018) [10.223]–[10.229].

    ↑

84. Submissions 7 (Dr Bianca Fileborn, Dr Rachel Loney-Howes, Dr Tully O’Neill and Sophie Hindes), 52 (Centre for Innovative Justice), 55 (Springvale Monash Legal Service), 56 (Domestic Violence Victoria). See also Consultation 74 (Magistrate David Fanning, Neighbourhood Justice Centre).

    ↑

85. Submission 7 (Dr Bianca Fileborn, Dr Rachel Loney-Howes, Dr Tully O’Neill and Sophie Hindes).

    ↑

86. See, eg, S Caroline Taylor and Caroline Norma, ‘The “Symbolic Protest” Behind Women’s Reporting of Sexual Assault Crime to Police’ (2012) 7(1) Feminist Criminology 24, 25; Haley Clark, ‘“What Is the Justice System Willing to Offer?” Understanding Sexual Assault Victim/Survivors’ Criminal Justice Needs’ (2010) 85 Family Matters 28, 30.

    ↑

87. Victims of Crime Assistance Act 1996 (Vic) s 1(3). We recommended that an objective of the new Act should be to ‘enable victims to have recourse to financial assistance under the Act, noting such assistance is not intended to reflect the level of compensation that may be available at common law or otherwise’: Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996 (Report No 36, July 2018) Recommendation 21(d).

    ↑

88. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996 (Report No 36, July 2018) [13.301]–[13.307].

    ↑

89. Ibid [13.334].

    ↑

90. Victims of Crime (Financial Assistance) Regulation 2016 (ACT) regs 5, 8. The highest recognition payment available in the Australian Capital Territory is for a sexual offence punishable by imprisonment of 14 years or more, or attempt or conspiracy to commit homicide, where the victim survivor has suffered, as a result of the offence, a very serious injury that is likely to be permanent.

    ↑

91. Victims Rights and Support Regulation 2019 (NSW) regs 10, 14; Victims Rights and Support Act (NSW) ss 26, 35(2), 36(1)(c).

    ↑

92. Victims of Crime Assistance Act 2006 (NT) s 38.

    ↑

93. Victims of Crime Assistance Act 2009 (Qld) ss 38(1), 39, 219, sch 2, s 2. In addition, a victim may be awarded up to $500 for the legal costs of submitting an application for assistance under the Act: s 38(2).

    ↑

94. Victims of Crime Act 2001 (SA) s 20(3).

    ↑

95. Victims of Crime Assistance Regulations 2010 (Tas) reg 4. A maximum award of $50,000 is available for victims of two or more related acts. In Victoria, VOCAT may treat related criminal acts as part of the same offence for the purposes of making an award: Victims of Crime Assistance Act 1996 (Vic) s 4(4). See also Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996 (Report No 36, July 2018) [13.297]–[13.299].

    ↑

96. Victims of Crime Assistance Act 1996 (Vic) ss 8, 8A.

    ↑

97. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996 (Report No 36, July 2018) Recommendation 43.

    ↑

98. Criminal Injuries Compensation Act 2003 (WA) s 31(1).

    ↑

99. Australian Government, National Redress Guide (Guides to Social Policy Law, 1 July 2021) [5.1] <https://guides.dss.gov.au/national-redress-guide/5/1>. Note that this maximum is less than the Royal Commission’s recommended maximum redress payment of $200,000: Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation (Report, September 2015) Recommendation 19 <https://www.childabuseroyalcommission.gov.au/redress-and-civil-litigation>.

    ↑

100. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996 (Report No 36, July 2018) [13.271], [13.272].

     ↑

101. Consultation 59 (Ashleigh Rae, Nicole Lee, Penny).

     ↑

102. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996 (Report No 36, July 2018) [13.259].

     ↑

103. Kathleen Daly, Robyn Holder and Victoria Meyer, Technical Report No 6: Contexts, Data, and Decisions by Victim Assist Queensland for Sexual Offences (Technical Report, Griffith University, February 2019) 39, 53, 63.

     ↑

104. Ibid 54, 63.

     ↑

105. Ibid 35.

     ↑

106. Julia Quilter and Luke McNamara, Qualitative Analysis of County Court of Victoria Rape Trial Transcripts (Report to the Victorian Law Reform Commission) (forthcoming). See also Lori Haskell and Melanie Randall, The Impact of Trauma on Adult Sexual Assault Victims (Report submitted to Research and Statistics Division, Justice Canada, 2019) 5, <https://www.justice.gc.ca/eng/rp-pr/jr/trauma/index.html> and ch 3 of this report.

     ↑

107. See, eg, Consultations 56 (Cecilia, a victim survivor of sexual assault), 81 (Danielle, a victim survivor); Submission 38 (Bravehearts); Lori Haskell and Melanie Randall, The Impact of Trauma on Adult Sexual Assault Victims (Report submitted to Research and Statistics Division, Justice Canada, 2019) 8–11 <https://www.justice.gc.ca/eng/rp-pr/jr/trauma/index.html>.

     ↑

108. Tamara Blakemore et al, ‘The Impacts of Institutional Child Sexual Abuse: A Rapid Review of the Evidence’ (2017) 74 Child Abuse & Neglect 35, 43.

     ↑