A matter of justice
07.11.1997
A Queensland Justice Department ruling this week that rape is not recognised as an assault because of an anomaly in law sparked community protest. Sue Monk reports
DESPITE decades of campaigning Queensland rape victims still are suffering from poor government legislation, especially that relating to compensation.
Controversy was stirred again this week after it was revealed that a woman's court-ordered compensation payment had been halved by the Justice Department which ruled that it did not recognise rape as an assault. The case has highlighted an anomaly under Queensland law where rape is not listed among compensation categories.
In another recent case, a Mornington Island woman was denied compensation when the department ruled that because she was drunk when she was gang-raped, she had in some way ``provoked'', or at least contributed to, the attack.
Women's Legal Service legal co-ordinator Zoe Rathus said she was appalled by a system which did not compensate a woman because she was drunk when she was attacked.
No woman, she said, was responsible for a violent crime against her, regardless of where she was and whether she was intoxicated.
``The behaviour of a victim can never be blamed for a crime committed against them and the system should reflect that,'' Rathus said, criticising legislation which allowed bureaucrats and the Attorney-General to have the final say on court-ordered compensation payouts.
``The system allows the Government to make decisions outside the framework of the written law,'' she said.
But Attorney-General Denver Beanland argued that he was bound by the Criminal Offence Victims Act _ legislation introduced by the previous Labor government.
Under that Act's schedule there is no compensation provision for the crime of rape, allowing rape victims to claim compensation based only on mental and nervous shock and for the physical injuries suffered in the attack.
Beanland said yesterday he was unaware of the specific case where the victim had been drunk, but said she would have found it difficult to claim compensation because of her intoxication.
HE SAID intoxication was seen as a contributing factor in compensation cases, particularly in the case of pub brawls where a drunk person provoked a fight and later became the victim.
Solicitor Tony Bailey, who specialises in seeking compensation for crime victims, called on the Government to fix the law's anomalies.
``It is ridiculous for the Government to claim that intoxication is a provocation for rape,'' he said.
In the past he had dealt with a number of cases where the Government denied or cut compensation payouts because alcohol had been involved.
``It's unbelievable that they could consider that this woman provoked the incident, when she was sleeping when the men first sexually assaulted her,'' he said.
Bailey was critical of departmental delays in processing compensation payments, with some victims waiting for years for a payout.
In rape cases the delays were particularly damaging, he said, because people suffering post-traumatic stress disorder after an attack needed to be treated as soon as possible. But most victims could not afford treatment costs.
A 29-year-old Brisbane woman whose father was convicted of sexually abusing her from the age of three to 15, still is waiting for compensation awarded to her in 1995.
The presiding judge initially awarded her $20,000 based on the 1995 legislation, but the Justice Department reduced it to $5000. After the woman spent $8000 seeking compensation, the case was referred to the Governor-in-Council's office which is considering giving her $5000 for each of the three convictions against her father.
Queensland Council for Civil Liberties president Ian Dearden said the Justice Department's failure to award compensation awarded by the courts was ``an act of bastardry''.
Rape victims were not the only ones affected by the department's policy of trying to find any excuse to save a few dollars in compensation payouts, he said.
``That's the bastardry of the department in using completely irrelevant grounds to knock people's payouts on the head, purely for revenue,'' Dearden said. ``It's appalling that when the courts make compensation orders the Justice Department plays God and over-rules them.''
Dearden believes the Government should have acted before now to amend its legislation to include a compensation category for rape. With the previous legislation, he said, a rape victim could only be awarded compensation under the nervous shock category, which was limited to $20,000.
The current Act allows for compensation under the mental or nervous shock category, with a maximum of $25,500 and for physical injuries resulting from an attack.
In this week's case, the Justice Department cut a compensation payment to a former university lecturer and mother of two who was raped because it would not accept a judge's ruling which compared the rape to a stab wound which related to unlawful penetration of the body.
Beanland said his Government had increased the compensation budget from $4 million to $8 million and had made numerous payouts.
``The legislation is full of problems, but we want to fully assess what needs to be changed so we don't find out later there are further problems with it,'' he said.
