Survivors of child abuse and child sex exploitation are being refused compensation by a Government agency on the grounds that they "consented" to their abuse, according to campaigners.
It is outrageous that children as young as 12 have been denied damages, even in cases when their abusers have been brought to justice and jailed. Under the criminal injuries compensation scheme (CICA), survivors of abuse can be eligible for payouts of up to £500,000.
The Government must review the CICA guidelines as a matter of urgency so that survivors may receive the redress they rightly deserve.
The fact that decisions have been reached that even suggest a 12-year-old has consented to sexual activity cannot be right.
Consent in Civil And Criminal Cases
The defence of consent can be used in both criminal and civil cases. In broad terms, in the criminal law the age of consent is 16 and that applies to both genders and it is a criminal offence for anyone to have any sexual activity with a person under the age of 16, although the Home Office guidance is clear that there will be no prosecution of teenagers under the age of 16 where both mutually agree and where they are of a similar age.
There is actually no rule under civil law regarding consent, there is no rule providing that a child under the age of 16 cannot give consent to sexual intercourse or other sexual activities.
People often assume that the civil law mirrors the criminal law regarding consent, but it does not. There is actually no rule under civil law regarding consent, there is no rule providing that a child under the age of 16 cannot give consent to sexual intercourse or other sexual activities. Therefore in civil claims a defendant may argue the defence of consent, even when the victim is a child.
Who Has Capacity to Consent?
When looking at whether or not someone has legal capacity to consent in law, the Mental Capacity Act 2005 applies to adults. In respect of children a decision has to be taken as to whether or not a child was ‘Gillick competent’ – do they have sufficient understanding and intelligence to understand the nature and implication of whatever act they are being asked to consent to?
When you are looking at whether or not consent has been effective, there are a number of factors that need to be considered; including things such as the person’s age, the age gap between them and the alleged abuser, any background of grooming, their prior level of sexual experience and the status and power of the alleged abuser.
A coalition of charities including Barnardo's and Victim Support have written to the Justice Secretary calling for an urgent review of the Criminal Injuries Compensation Authority's guidelines. We fully support this stance and agree urgent action must be taken to ensure child victims of abuse are compensated for crimes committed against them.
Slater and Gordon’s expert team of abuse lawyers are currently representing over 800 survivors of abuse and offer a free consultation for anyone affected by child abuse.
Kim Harrison is a principal lawyer specialising in child abuse claims at Slater and Gordon in Manchester.