Legal remedies for sexual harassment

Victims of crime assistance

Under the Victims of Crime Assistance Act 1996 (Vic), victims of sexual assault are entitled to be compensated for financial losses incurred as a result of a sexual assault. Under changes that came into effect on 1 January 2001, victims can also be awarded compensation for pain and suffering. However, the availability of assistance depends on when the assault took place and when it was reported.

If you are thinking about applying for special financial assistance, it is advisable to contact a community legal centre or a private lawyer (for contact details and further information, see Assistance for victims of crime, Legal representation, and Legal services that can help).

How much compensation can be awarded?

The Victims of Crime Assistance Tribunal (VOCAT) may award a victim up to $60,000 for expenses or loss of earnings incurred as a result of a sexual assault. This may include money for counselling and medical expenses, and up to $20,000 for loss of earnings. There may also be compensation for loss of, or damage to, clothing and potentially for:

removal expenses and the installation of any security devices, if the victim has moved house; and

costs involved in pregnancy or fear of pregnancy.

Primary victims of sexual assault, depending on when they were injured and when they reported the offence, can be awarded up to $10,000 for pain and suffering.

In addition, “secondary victims” of sexual assault, such as a victim’s partner or parents, can apply for compensation and receive up to $50,000 for counselling and medical expenses and, in exceptional circumstances, up to $20,000 for loss of earnings.

What is the process for claiming compensation?

Although an application for compensation should be made within two years of the sexual assault occurring, VOCAT may accept applications submitted after two years have lapsed. Application forms are available at CASAs and from VOCAT (see “Contacts”).

An application for compensation needs to include proof that the crime occurred, receipts of expenses incurred, medical reports, and any other documents or information that will help VOCAT to award appropriate compensation. If the claim is successful, VOCAT will also reimburse the claimant for the costs of legal assistance in making the claim. It will also usually reimburse a claimant for the costs of a professional report to establish the need for ongoing counselling.

VOCAT hearings are held at a Magistrates’ Court. The hearing is closed to the public and is fairly informal. The offender will not usually be there, and a victim can take a solicitor, a friend, or a counsellor for support.

However, VOCAT may notify the alleged offender of the proceedings when there has been no conviction. If required, special arrangements can be made for a victim’s privacy when the alleged offender is likely to be present (seeProtection of complainants”).

A victim who indicates that they do not wish to attend the hearing will be notified by mail of VOCAT’s decision.

The VOCAT member will usually let the applicant know what they wish to know about the crime, and give them an opportunity to describe the consequences of the assault.

Interpreting services are available for those whose preferred language is not English. Although, the responsibility for providing an interpreter lies with VOCAT, the advocate can ensure that this occurs.

How is a compensation decision appealed?

If you were not awarded compensation, or are not satisfied with the compensation that was awarded, you can appeal within 28 days of the decision. Appeals are made to the Victorian Civil and Administrative Tribunal (for further information, see Appealing government and administrative decisions).

Compensation after trial

If a court finds a person guilty of a sexual or other offence (and a victim applies for compensation), the court can award compensation for loss, destruction or damage of property, and for pain and suffering under section 85B of the Sentencing Act. An application for compensation must be made within 12 months of the offender being found guilty, although an extension of time can be the subject of application.

An applicant can seek the assistance of the prosecutor in making such an application. It has become apparent that applications for compensation to be paid by an offender are an increasingly important source of compensation when offenders have assets. However, such applications can be expensive and stressful if they are contested by the offender. This happens, although only very occasionally.

If you are considering making such an application for compensation, it is important to obtain legal advice from a practitioner experienced in such matters.

Other civil remedies

A victim of sexual assault may also be eligible to take other legal action against an offender through the pursuit of damages for personal injuries or breach of the offender’s duty of care if, for example, the offender was a doctor, psychologist, teacher or a parent. When the assailant has assets, it is becoming more common for victims to take civil action against them. For more information about these options, contact a community legal service, Victoria Legal Aid or a private lawyer (for contact details, see How Legal Aid can help, and Legal services that can help).