This is mainly a post addressing New Zealand domestic politics, but I think some of the points I make have a wider relevance. In 1972, New Zealanders gave up their right to sue for personal injury in exchange for a national system of accident compensation. This system has provided counselling for survivors of sexual violence.
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When writing about my analysis of sexual violence and prisons, one of the points I keep coming back to is how centred it is on the perpertrator. It’s not a new or original thought to point out that everything about the way a criminal law system deals with sexual violence is entirely focused on ‘the offender’. The follow-on from this is our society’s way of dealing with sexual violence revolves around the court system.
A few year ago, I wrote about a nursing student, who was raped by a fellow student, after a typical, ridiculous, defence, the rapist got off. She had to drop out of school, because the school wouldn’t do anything to ensure she wouldn’t have to see her rapist regularly. I think it’s important to understand how structural the problems within our justice system are. These systems are not designed to support survivors of sexual abuse, and therefore they will always fail at that task.
But…
But, in New Zealand, we do have a system that is set up to meet, to revolve around, what survivors of sexual violence need. There are many things it cannot provide – ACC will not help student find a way to continue to study without seeing her rapist. But it can provide counselling and income support.
I don’t have any personal experience, or depth of knowledge, of ACCs sensitive claims system. I am sure, as it currently operates, it has flaws, and some people fail to get the help that they need. But, at the moment, it can be centred around what a survivor needs, based on her relationship with her counsellor (or his).
If these changes go through, it will be much harder, maybe impossible for ACC to be survivor-centre. Currently, a survivor can have up to four sessions of counselling to disclose their abuse, but the changes will cut this down to one session (or maybe two, Peter Jensen, the person in charge of the proposal, was unclear on nine to noon).
At the moment a survivor can access up to 50 sessions with a counsellor before they have to obtain a psychological assessment. The changes will require psychological assessments much earlier in the process, and that process will be directed much more by clinicians. In order to get funded counselling, a survivor of sexual abuse will require a DSM IV diagnosis.
This is not a survivor-centred approach to sexual abuse; it is a clinician-centred approach.
ACC has already begun tightening the screws. And in doing so it has turned funded counselling into another area where a survivor has to prove her (or his) experience – maybe not beyond reasonable doubt, but close.
Dr Kim McGregor explained how ACC restricts access to counselling on an interview on 9 to Noon. ACC declined cover for a young boy who had been sexually abused as the behaviour described: mood swings, tearfulness, and sitting alone sucking his thumb, did not necessarily have a clinical link with sexual abuse. They said these behaviours could just as well have been caused by settling into school and a new environment rather than the sexual abuse events.
Imagine the difficulty of someone who has survived sexual abuse will have in proving that the difficulties she (or he) is experiencing are directly and only a result of the abuse. Those who had what insurance companies call ‘pre-existing conditions’, could find support denied – if they had previously been depressed, how can they know that depression after the sexual abuse is a result of that abuse? (not a question that could be asked by anyone who cared about the experiences of survivors of sexual abuse, but a question that is being asked by ACC). While those who do not seek help for a long time, will have to prove the effects the abuse has had on them, and the more complex their survival strategies in the intervening time, the harder it will be for them to access the support they need.
The parallels between the perfect victim of the court system and the perfect survivor of ACC are strong. In both cases the onus of proof falls on those have been abused to prove either that there was abuse, or that that abuse affected them. Just as previous sexual history is used against survivors in the court system, ACC can use previous mental health history against survivors.
My point is not just that the changes to ACC need to be fought (although they do – Monday is a national day of action – come along), but to show how important, and how fragile, a survivor centred approach to sexual violence there is.
As well as pushing against these threats to survivor support, I want us to push further. I want us to imagine what a response to sexual violence which prioritised survivors look like.
In 1972, New Zealanders gave up their right to sue for personal injury in exchange for a national system of accident compensation.
Wow. Really? What was the reasoning behind that?
How tied is this system to the judicial system? Say I present myself to the system as a victim of sexual abuse. But no one was convicted (or perhaps even tried) of sexually abusing me. What do I have to do to convince someone that I actually am a victim of sexual abuse? Does the fact that there was no conviction make that a problem for me? If I have to reveal the abusers identity and they are still alive am I forced to take action against them?
She had to drop out of school, because the school wouldn’t do anything to ensure she wouldn’t have to see her rapist regularly.
What could the school do? Given that the rapist wasn’t convicted, what action could the school take against him? I’m not trying to justify the rapist, I”m asking what the school could have logistically or legally done. Absent a conviction I would think the school would have no legal justification to put restrictions on (I presume) him. I realize this takes you right back to the issue of victim vs. perpetrator rights. Clearly this woman has problems that are not of her own making and I thoroughly sympathize with the concept that walking the campus and seeing her assailant put her in a bad situation. But how can you take legal measures to restrict the rights of someone who has in the eyes of the law committed no crime? How do you make that work without introducing a strong possibility that the power to do so can be abused by the institution/State? How do you act on the presumption that a given person committed a crime when that person was tried for that crime and found not guilty?
RonF,
Inasmuch as the compensation system is a substitution for the tort system, I would think you’d need to present as much information as would be necessary to file a tort lawsuit, which would include as much knowledge as you have about who the perpetrator was. You can have John Doe defendants in tort suits, as the AutoAdmit plaintiffs (themselves “Does”) have done. (This is a defamation lawsuit brought by two Yale Law students against several anonymous commenters on a message board.)
Ron – no to all the questions in that first paragraph. At the moment (it will change) you will talk to a counsellor, and they put the application to ACC. It’s completely independent of the criminal justice system, and there’s no need to report to the police. The counselling that is available is about dealing with sexual abuse, so it’ll be only useful for those who have been sexually abused.
As to why – because it saves a whole tonne of money, and it covers everyone. This system also covers medical malpractice, on the job injury and so on. It’s no fault, universal coverage, and much more efficient.
As to your second point – conceivably the school could have a student standard of conduct that wasn’t based around the criminal justice system. But your question about what is actually my point – the justice system completely revolve around perpetrators – and such as system will not and cannot meet survivors needs. Is what we’ve got good enough? Would it be possible to give up our focus on punishment and the perpetrator and focus on survivors? Would we be giving anything up in doing so.
PG – ACC is a replacement for the right to sue – it uses quite different systems.
As to your second point – conceivably the school could have a student standard of conduct that wasn’t based around the criminal justice system.
Sure. There are all kinds of of issues regarding conduct that’s perfectly legal but undesirable and it’s legitimate to at least consider regulating it. It’s legal for me to stand up in class and start screaming “You lie”, but that doesn’t mean that the school can’t stop me from doing it.
But here what we have is behavior that the perpetrator denied doing. At least, that’s my supposition. I don’t know what the trial uncovered; what behavior he admitted to and what behavior he was accused of that was never proven. It would seem to me that the school would be on pretty shaky ground trying to limit him based on behavior that it can’t be proved he did in the first place.
But your question about what is actually my point – the justice system completely revolve around perpetrators – and such as system will not and cannot meet survivors needs.
Agreed. Obviously we have to have a system that revolves around finding facts, determining whether or not someone committed a crime and punishing those who have been found to do so. But such a system will do nothing for a victim other than possibly uncovering the facts they need for a civil suit (presuming the perpetrator has any assets).
Is what we’ve got good enough?
To uncover perpetrators and punishing them (or at least removing them from society so that they can’t commit crimes for a while)? Within the limits of a bias towards not punishing the innocent, I’d say yes, at least in the U.S. To assist crime victims in recovering from the effects of what was perpetrated against them? No. But then, that’s not it’s purpose, so that’s no surprise.
Would it be possible to give up our focus on punishment and the perpetrator and focus on survivors?
Why is the former necessary to do the latter?
Would we be giving anything up in doing so.
Deterrence. Justice for society as a whole. Taking criminals out of circulation. I can understand the concept that crime victims need help in recovering from their crimes. I don’t know why we necessarily need to back off of uncovering and punishing perpetrators to do it.