Posted in General Legal Tips on 05 November 2014

The legal process in Ireland can be divided into criminal law and civil law. Each operates independently of the other. The victim of a sexual offence is entitled to engage with either or both processes.

The Criminal Process –
The criminal process involves making a complaint to the Gardaí. The Gardaí will investigate the complaint and, where there is sufficient evidence, charge and prosecute the accused in the criminal court. If found guilty the Judge may impose a prison sentence and or other penalties.

The Civil Process –
It is also open to the victim of a sexual offence to engage in the civil process. At Cantillons Solicitors we can advise you on this. Unlike the criminal process which punishes the perpetrator, the civil process is intended to compensate the victim. The civil process involves the victim suing the accused for the harm caused as a result of having sexual abuse perpetrated upon them. In order to succeed in a civil claim you will have to prove that the perpetrator carried out the acts you accuse them of on the balance of probabilities. We at Cantillons Solicitors are experienced in bringing civil claims for the victims of sex abuse.*

What Cantillons Solicitors can do for you -
The process of bringing a civil claim is altogether different from the criminal process. At Cantillons Solicitors we have the necessary experience to advise and guide you on bringing a civil claim.  Initially, a member of the Litigation team will meet with you and take detailed instructions from you. We at Cantillons Solicitors understand that bringing a civil claim for the victim of sex abuse can be an extremely emotional and daunting experience and we will guide and support you through the entire process step by step.

Is there a time frame to bring a civil claim and can this be extended?
The Statute of Limitations Act 1957 and the Statute of Limitations (Amendment) Act 1991 and 2000 impose specific time frames on persons who wish to take a claim for a wrong done to them.  The Litigation Team at Cantillons Solicitors can advise you on how the Statute of Limitations will apply to your particular case.

The law changed a number of years ago to take account of a person who may not have been in a position to report the abuse or pursue any action in respect of that abuse for a very long period of time. This was in recognition that the nature of sexual abuse, and in particular child sexual abuse, where the victim is often unable to speak about the abuse let alone bring a legal action in respect of it for many years. The law has made a special allowance for persons in that situation.

Section 48(1) of the Statute of Limitations Act 1957 provides an extended limitation period for victims of sexual abuse. Amending legislation enacted in 2000 inserted s. 48A into the 1957 Statute. Under the new 48A a person is deemed to be under a disability while suffering from any psychological injury caused by the acts perpetrated by the wrongdoer which is of such significance that the victim’s will to bring a case or ability to make a reasoned decision to bring a case is substantially impaired.

What constitutes a disability for the purposes of section 48A?
Section 48A refers to any psychological injury caused by the Defendant which resulted in the victim being unable to bring a case or being substantially impaired in terms of making the decision to bring a case.

In the Irish High Court case of Doherty v Quigley [2011] IEHC 361 the Plaintiff was suffering from a serious psychological injury inflicted by the Defendant. The Plaintiff suffered from a serious psychiatric condition in the form of Post-Traumatic Stress Disorder of severe degree as a result of the abuse suffered. The Court was satisfied that constituted a psychological injury within the meaning of section 48A. The Court was satisfied that the Plaintiff’s psychological health had been profoundly injured. The Plaintiff’s ability to make a reasoned decision to bring the action was substantially impaired. The Court concluded that s. 48A applied and the Plaintiff’s action was not statute-barred.

Carrying on one’s life with a semblance of normality does not preclude the possibility that there may be a myriad of complex and debilitating psychological problems lurking beneath the surface. The Statute of Limitations is very strictly interpreted by the Irish Courts. The Court retains the right to dismiss a cause of action for delay.  Even in the cases of persons of unsound mind an inordinate delay will not be tolerated.

The Criminal Injuries Compensation Tribunal -
Another avenue of redress is the Criminal Injuries Compensation Tribunal. This is the compensation scheme for personal injuries inflicted and loss incurred as the victim of a crime. The Litigation Team in Cantillons Solicitors can advise you on this process also. Damages cannot be claimed for general pain and suffering. Only compensation for loss of earnings, medical expenses and other certifiable losses may be claimed. The Scheme excludes a claim for maintenance for a child born to a victim of a sexual offence. Compensation will not be paid if the victim and the accused were living together at the time of the offence.

Any compensation that a survivor receives in another setting, for example, via a civil claim or through a Redress scheme will be taken into account in the award of damages by the Tribunal. Social welfare payments or entitlements under sick leave schemes are also taken into account when assessing damages payable to a survivor.

In making a claim under the scheme the time limit is three months although the Tribunal may consider applications after this if a satisfactory explanation is provided. Reporting the crime to the Gardaí is a prerequisite under the scheme as the Garda Report will be examined by the Tribunal when deciding whether to award compensation or not. A single member of the Tribunal decides the amount of compensation. If the applicant is unhappy with that ruling, an appeal lies to a three member Board. Hearings are largely informal and are held in private. Applicants are permitted to bring legal advisors to the hearing however the Tribunal will not pay any legal costs.

Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or [email protected] if you would like more information.

* In contentious business, a solicitor may not calculate fees or other charges as a percentage of any award or settlement.

 

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