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3.4.7 Claims related to sexual and physical abuse
Claims relating to sexual and physical abuse require that it be established that an incident or incidents of abuse occurred.
The Military Rehabilitation and Compensation Commission has acknowledged that it is difficult to obtain evidence to establish that abuse occurred for a variety of reasons. These reasons include that there may be no witnesses to the abuse, records may be incomplete or may not exist, or reporting may have been difficult or discouraged.
In recognition of the evidentiary difficulties faced by survivors of physical and sexual abuse, delegates are advised that claimants’ personal accounts, in the form of statutory declarations, may be accepted as evidence in support of claims. The ability for delegates to accept statutory declarations is consistent amongst all claimants, irrespective of their age at the time of the alleged incident. Commissions' policy is that:
· In the absence of contradictory evidence, delegates will always accept a credible statutory declaration as sufficient to establish the fact of abuse in claims related to incidents of physical or sexual abuse of members of the ADF. Statutory declarations are to be examined in the context of the available evidence, including cluster data and personal files in order to determine credibility. A service connection must also be established for liability to be accepted.
· It is important to note that a statutory declaration is not the only means by which a claimant can establish the fact of abuse. Nor are delegates encouraged to reject claimants' personal accounts that fail to meet the above criteria.
This policy will assist with the first aspect of the claims process – establishing that an incident of abuse occurred. It remains the case that for a claim to be successful, the delegate must be satisfied that a diagnosed medical condition exists and the condition and abuse event is related to a person’s ADF service.
The acceptance of liability does not automatically mean that compensation will be payable. If liability is accepted, the normal compensation assessments will occur.
Where a person provides evidence in support of their claim in the form of a personal account, the account should be provided by way of a statutory declaration.
The statutory declaration must be provided by the person who allegedly suffered the abuse unless the person is medically or legally incapable of providing a personal account, in which case the personal account must be provided on behalf of the person by the person’s authorised representative.
The statutory declaration should include as much and as detailed information as possible relating to the abuse and to the person who allegedly suffered the abuse. While delegates can determine a claim with any amount of evidence before them, they are required to form a view of the value of the evidence before them. The statutory declaration should include if possible:
1. the person’s history of employment in Defence, both before and after the incident/s of abuse;
2. the details of the abuse incident/s, including
a) the date of occurrence of the incident/s. While it may not always be possible to provide an exact date, as detailed information as possible should be provided.
b) the position/role of the person at the time of the incident/s
c) where the person was employed/serving/deployed at the time of incident/s
d) where the alleged abuse occurred
e) a description of the circumstances of the abuse incident/s, including who initiated or effected the abuse and the names and/or ranks/roles of witnesses or third parties.
f) information about any connection between the alleged abuse and the person’s employment in Defence; and
3. Information about when, how and to whom any written or verbal report or complaint was made. Any resultant actions taken in regard to, or outcome of, such a report or complaint should also be included.
It is not unusual for recall to be affected by traumatic events, and accounts of deeply personal events such as abuse may change over time either as details are repressed or remembered and as the victim develops a trusting relationship with the claims assessors. This should be taken into account when considering potential issues of ‘credibility’, where contentions change or do not match earlier statements.
Where a delegate requires further corroborative evidence to be satisfied to the requisite standard of the fact of an abuse event, the scope of what they may consider is broad. Delegates have wide discretion and may weigh or discount the significance of particular items of evidence in accordance with their own judgement and reason.
These considerations mean it is impossible to provide an exhaustive list of what may constitute corroborative evidence. Depending on the circumstances, examples may include contemporaneous reports, eyewitness statements, Defence investigations and information about abuse ‘clusters’ identified by the Defence Abuse Response Taskforce.
Delegates are required to investigate the circumstances of every claim. This includes finding and considering all relevant evidence when determining a claim.
In this investigation, evidence may be found that contradicts the contentions made in a statutory declaration (such as, but not limited to, evidence that the alleged perpetrator or victim were not present at the location and time the abuse was said to have occurred). In these situations, the delegate must make a determination based on all evidence at his or her disposal. If the delegate is not satisfied on the balance of probabilities that the contentions outlined in the statutory declaration establish the fact of abuse, given the contradictory evidence available, the claimant can be invited to provide further evidence and clarification or the claim can be rejected.
Claims relating to sexual and physical abuse involve matters that can be distressing to recount and address. Delegates dealing with such claims must do so in a sensitive and careful manner. It is crucial that the privacy of claimants is upheld throughout the claims process.
Notice of Injury
The Safety, Rehabilitation and Compensation Act 1988 and its predecessors (but not the Veterans' Entitlements Act 1986 or the Military Rehabilitation and Compensation Act 2004) require an employee to give notice in writing of an injury or loss of property as soon as practicable after the employee becomes aware of the injury and provide that the Act does not apply in relation to the injury or loss if this requirement is not met.
Under the new policy, delegates must always treat claims involving allegations of sexual and physical abuse as if proper notice has been given.
For more information, see http://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/liability-handbook/ch-5-notice-injury-and-claims-compensation/51-notice-and-claim-requirements.
Department of Defence: Pathways to Change- Evolving Defence Culture
Royal Commission into Institutional Responses to Child Sexual Abuse
Defence Force Ombudsman – Reporting Abuse in the ADF