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23.2 Injury/Disease from Alleged Sexual Assault or Other Crime
Last amended: 10 April 2012
Injuries or diseases which are claimed as a consequence of alleged sexual assault or other crime require, as with any other case, a connection to service. As with all claims, delegates should aim to make the determination accurately and quickly and be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities (as per the requirements contained in subsection 72(a)).
It would not be unexpected (or unreasonable) to suggest that claims relating to sexual assault can often be made a substantial period of time after the alleged incident occurred, and in many cases no formal record of the incident will be available. This is particularly true given such cases are generally denied by the other party. It may therefore be necessary for the claimant to provide a statement detailing the circumstances and history of the events in question. However, it is imperative that delegates exercise a high degree of care and sensitivity when investigating claims for injuries or diseases resulting from sexual assault and other crime. While delegates will often be required to ask for further evidence or seek clarification of a person's statement, the manner in which that information is requested must be as tactful as possible. Naturally, cases such as this should be afforded the highest level of confidentiality (at all times adhering to the provisions of the Privacy Act 1988), and should be prioritised accordingly.
A connection to a person's service will be more quickly established where the incident in question was reported at some point to the ADF, usually a commanding officer or another person in a position of authority. It may also be a member of the medical staff, a chaplain or member of the psychology service. The current Defence policy on management and reporting of sexual offences can be accessed via the following link: http://www.defence.gov.au/fr/policy/GP35_04.pdf
Any reports which may have been made to the police in relation to the incident(s) in question, might also assist in determining whether there is a causal connection between the alleged sexual assault (or other crime) and the claimant's service.
The incident may also have been reported or discussed with fellow ADF members and in those situations, the obtaining of witness statements would be appropriate.
Upon receiving the claim, the delegate should immediately request information from the ADF via the Single Access Mechanism (SAM) team and ensure that any requests include relevant documents from both the member's psychiatric files (which are included as part of their medical file) and psychological files (which are documented separately). A review of the claimant's personnel records would also be appropriate to determine if they reported the alleged misconduct at any stage.
When requesting the information, it may be necessary to forward details from the claimant's own statement – such as dates and relevant events – through SAM to Defence for investigation.
It is also important that special note be taken of the date of the alleged incident as it is possible that this date will determine which Act (SRCA or MRCA) is applicable to the claim.
As mentioned previously, delegates should be aware that there will not always be clear, documented evidence to verify the circumstances of a claimed sexual assault. However, if the delegate is satisfied that the alleged incident(s) arose out of or in the course of their ADF employment and there is sufficient medical evidence to indicate that, on the balance of probabilities, the incident has contributed to the condition then the claim may be accepted. Delegates will need to assess all cases based on the totality of the evidence available to them.
Given the sensitive nature of cases involving sexual assault, any decisions which are being issued should also be reviewed at the Team Leader level (at a minimum) prior to determining the claim.
Delegates are also encouraged to attend the “Managing Sensitive Conversations workshop” as an opportunity to develop their skills when considering similar claims in the future.