24th Jul 2017

The CICA and Criminal Consent

The Criminal Injuries Compensation Authority or CICA is an executive agency of the Ministry of Justice. It is funded by the taxpayer and its purpose is to administer compensation to the victims of violent crime. One would assume the CICA applies the same legal test to determine whether an offence is `criminal’ as the criminal courts. If someone is assaulted and the police investigate, the assailant may be charged and convicted of an assault at court. The CICA will accept the conviction as evidence of the assault and will not look behind the circumstances of the assault when determining whether to make an award.

However, there are some offences, such as consent in a sexual offence, where the CICA will not necessarily accept a criminal conviction as evidence for the purposes of determining whether to make an award and will want to know more about the circumstances.

The Criminal Law defines consent as any agreement entered into:

'by choice, and he or she has the freedom and capacity to make that choice'.

There are two questions to ask:-

• whether a complainant had the capacity (i.e. the age and understanding) to make a choice about whether or not to take part in a sexual activity at the time in question; and
• whether a complainant was in a position to make that choice freely, and was not constrained in any way.

If the complainant has both the capacity and freedom to consent and does so consent then there is no criminal offence, assuming the sexual activity is legal.

However, children enjoy special protection when it comes to sexual offences. Under the Sexual Offences Act 2003, a child under 13 does not, under any circumstances, have the legal capacity to consent to any form of sexual activity. 

The 2003 Act provides that the age of consent is 16, so that for instance a 17 year old can consent to any sexual activities.

There are a number of offences involving children over the age of 16 and under the age of 18 years in which the child gives ostensible consent to the activity, but that consent is not relevant because of their particular relationship with the abuser.  For instance a teacher cannot engage in any sexual activity with any pupil under the age of 18 years old, even if the pupil agrees and indeed encourages the sexual relationship.

However, the CICA adopts a less legal interpretation of the notion of consent.  Its guidance requires the CICA to look at the de facto circumstances of the relationship.  Although the activities may be illegal and result in the criminal conviction of the perpetrator, the CICA will want to know whether the applicant did in fact consent.  Thus a 15 year old girl in a sexual relationship with a 22 year old man may not be awarded compensation by the CICA if she was found to have been happy in the relationship and prepared to go along with it whether or not the relationship was illegal.  Likewise a 17 year old school pupil at school in a sexual relationship with an older teacher, may not receive an award if on the facts they went along with the relationship, notwithstanding that the teacher has committed a criminal offence.

The CICA’s interpretation of the definition of “consent” comes from Annex B: to the 2012 Scheme and its interpretation of a Crime of Violence.  A crime of violence involving a sexual assault occurs if the applicant did not in fact consent

The CICA has stated that the insertion of the words “in fact” means that it can look at the broad circumstances of the assault and assume consent even if the criminal law realises that consent cannot be given!

Freedom of information requests have revealed that almost 700 child applicants have had their claim for compensation turned down by the CICA even though, in some instances, their attackers have been jailed.

Five well-known national charities including Barnardos, Victim Support, Liberty, Rape Crisis and the National Working Group have written to the justice secretary David Liddington demanding that he review the CICA guidelines.

Dawn Thomas, co-chair of Rape Crisis England and Wales said,

“it is not only bizarre but also inappropriate and harmful that the CICA applies a different definition of consent from the law and, as a result, routinely tells victims and survivors of child sexual abuse and exploitation that they consented to the sexual violence perpetrated against them”.

Mark Castle Victim Support’s Chief Executive said,

“it is ridiculous, nonsensical and morally wrong to pretend that a child has consented to sexual abuse and to then use this an excuse not to pay compensation. Any child that suffers sexual abuse is a victim - full stop”.

Martha Spurrier Director of Liberty commented that.

“grooming is brainwashing. Perpetrators manipulate children into situations that look like consent. No child can consent to abuse, which is why the criminal law rightly says they are simply unable to do so”.

Richard Burgon MP, Labour’s Shadow Justice Secretary said,

“this is deeply disturbing. Children can never consent to be abuse and should never be made to feel like they’re to blame for any abuse they suffered. The government needs to urgently review the Criminal Injuries Compensation Authority guidelines to ensure that compensation reflects the law around child sexual abuse”.

Javed Khan the chief executive of Barnardos said,

“for children to be denied compensation on the grounds that they consented to the abuse they have suffered is nothing short of scandalous. The very rules that are supposed to protect children are actually harming them”.

The CICA says that it is currently reviewing its guidelines.  We are currently representing a 15 year old girl was groomed by her sister’s fiancée and they engaged in a sexual relationship.  The CICA declined her application for an award on the basis the relationship was in fact consensual.  

Robsonshaw solicitors specialise in sexual abuse compensation claims and have considerable expertise challenging decisions of the CICA where they have refused an award, or where the award is insufficient.  If you or a family member need expert advice on a CICA claim please contact us on a confidential no obligation basis.  

Category: CICA Claims