Possible routes to action against abusers who are dead or unfit to stand trial
Dino Nocivelli discusses steps available to victims and survivors of abuse to help with moving on and securing compensation.
Abuse is an unique crime as often it includes the victim/survivor unwillingly participating in the cover-up of the crime itself.
The reasons for this are numerous and range from the abuser grooming and manipulating the victim/survivor to the inherent nature of the abuse or the position of trust of the abuser silencing the victim/survivor from disclosing.
The difficulties to disclose abuse mean that it can take decades for victims/survivors to be able to share the information and sadly some will carry the burden to their death.
Due to the time that it can take for a victim/survivor to be able to disclose, and as abusers are usually older than the victim/survivor in the first place, there is a real risk that the police will be unable to investigate and prosecute an alleged abuser if they are dead or if they are unfit to stand trial due to memory or health issues.
The inability of the criminal justice system to provide a potential path to closure and justice finally for victims/survivors in this scenario can be very difficult to face, but there are some options available.
First, they could decide to bring a civil case either against the abuser’s estate and/or against the abuser’s employer if the abuse was closely linked to their employment and the abuse took place during the course of their employment.
It is important to act quickly to bring a claim against an estate and to act before it has been distributed, as happened following the abuse by Jimmy Savile.
When it comes to pursuing a civil case against the abuser’s employer, the claim will depend on the evidence available. The abuser’s employer is likely to argue that a fair trial is no longer possible as they can no longer defend the allegations of abuse.
Matters to consider in the face of of such resistance are: Has the abuser ever been convicted of abuse before? Have they ever faced suspensions or dismissals or some other disciplinary punishment due to abuse? Are there other victims/survivors who can provide similar fact witness evidence?
There have been successful cases where the abuser was deceased and although difficult, it is important to obtain advice from a specialist abuse lawyer.
You could make a claim to the Criminal Injuries Compensation Authority (CICA) which is a Government agency rather than the abuser’s employer. There are time limits and restrictions to claims to the CICA, and any monies are paid by the CICA, not the abuser’s former employer. It is not possible to secure an apology from the CICA. It is important to note that an abuser does not need to have been convicted for their victim to bring a CICA claim.
Dependent on the role of the abuser, it may be possible to obtain an inquiry. This is relatively rare and the abuser would have to either be a prolific abuser or a high profile individual such as Jimmy Savile.
As can be seen, there are potential options to bringing a claim for compensation if a person’s abuser is dead.
Most importantly, I think it is important to state that disclosing abuse is an important and difficult step, but, if possible, one that should be taken by every victim/survivor who should receive the support they need to be able to move forwards in this way.