In the Australian criminal legal system, a person is considered innocent unless proven guilty. This means that it is up to the Prosecution to provide evidence to support the Crown’s case. Whilst the law is in place to protect innocent people from going to jail, it places a heavy burden of proof on the accuser.
Sadly, for sexual abuse cases, where it is often one person’s word against the other, this can sometimes be hard to prove.
Understandably it also takes most survivors a long time to be able to come forward and talk about the abuse they suffered, in fact, the majority of the time these acts are never reported to anyone including the police.
What causes survivors of sexual abuse to delay coming forward?
In cases of sexual abuse, the survivor may not be aware of the legal avenues available to them to pursue justice until many years later.
The abuse can have a significant psychological impact on the survivor, it can take time to come to terms with what happened and then to find the courage to come forward.
There is a common misconception that survivors will not be believed if they do speak up about their abuse.
What is the legal process for survivors of abuse?
There are two types of legal avenues for survivors of abuse.
The first is a criminal case, where the survivor would go through the relevant police force to report the crime and pursue a criminal prosecution.
The other avenue is a common law claim, where the survivor would sue a responsible or negligent party for the damage they have suffered as a result of the abuse. This considers the impact that the survivor has suffered due to the crime.
What is the difference between a civil and criminal case?
Criminal law deals with crimes such as violence against another person, theft or damage to someone’s property and white-collar crime. Offences are divided into categories of how serious they are and as such are dealt with in different courts. More serious crimes are overseen by a judge and a jury. They decide whether a crime was committed and if the person who committed the crime knew that it was wrong.
At the end of a criminal case, the court will find the accused guilty or not guilty and will then convict them of the offence and prescribe a punishment. This can mean going to jail, paying a fine or doing community service.
At the end of a criminal trial in Australia, if the jury has any reasonable doubt, then the accused will not be convicted. This is not to say that the survivor is not able to access compensation, as they will still have the option to pursue a civil claim.
Criminal | Civil |
Must be beyond reasonable doubt | Standard of proof is in the balance of probabilities |
Standard of proof (level of proof) is higher and rests on the accuser | Can access compensation for injuries including emotional damages |
Even if a prosecution does not run or a person is not found guilty, there is still the opportunity to make a civil claim on behalf of the survivor as there are different standards of proof between criminal and civil courts. For example, if a person who is accused of sexual abuse is not fit to stand trial, then the criminal case will likely not proceed. The outcome in one court does not rely on the outcome in another. This means that a survivor of abuse still has the opportunity to fight for justice.
In a civil case, a decision will be made based on whether it has been proven on the balance of probabilities (it was more probable than not) that the other party failed their duties towards the accuser. The Court can then award damages based on the loss suffered by the survivor.
What does 'quashed' mean in court?
A motion to quash means that the court has been requested to declare a previous decision of a court invalid. It can be for a number of reasons for example if the jurors were incorrectly selected.
What does acquitted mean?
This means that the accused is free from charges of an offence. This does not mean that the court found the accused not guilty, it means that the prosecutor failed to prove their case beyond reasonable doubt.
Why should survivors of child sexual abuse come forward?
The Royal Commission into Institutional Child Sexual Abuse found that survivors who chose to come forward wanted to stop the abuse from happening or prevent it from happening to someone else. Other survivors chose to come forward because they wanted to be released from the burden of carrying the secret of the abuse.
Whilst it can be tempting to try to forget the abuse, which is perfectly valid, we encourage survivors to come forward and identify their perpetrator in hopes that we can end the cycle of abuse and protect others from being harmed by the same person. Coming forward can not only help survivors access compensation for the damage they have suffered, but it can also help them turn the page and start to reshape their lives.
