10 January 2020 | Podcasts | Article by Alan Collins
This is a frequently asked question and the answer is always fact specific, and so we will outline some scenarios that help define the general principles behind the answer.
Sexual abuse is not just a crime but also a civil wrong that enables the victim or survivor to bring a claim for compensation against the abuser.
The law is that if you assault someone then you are liable to pay them compensation also known as damages. The victim can take legal proceedings in the civil courts against the perpetrator and if they win the case the judge will order that compensation be paid.
To state the obvious, for this to happen, the abuser has to be alive. You cannot take a dead person to court. You cannot sue a dead person.
However, if the abuser has died relatively recently then the victim could take the abuser’s estate to court. The claim would be brought against the estate which means the personal representatives. If, however, the estate has been wound-up then it would be too late. Again to state the obvious if the assets of the estate have been distributed then it’s too late. Therefore a victim needs to act speedily in the event of the abuser dying.
Bear in mind though the estate may not accept the claim. If the limitation period has expired the estate has a potential defence to any claim. The Limitation Act 1980 provides that a claim for compensation is meant to be brought before a court within 3 years of the sexual abuse having happened. That period in the case of a child victim would have commenced on their eighteenth birthday. A court has a discretion to waive the limitation bar, provided it's fair to do so and the reason for the delay in coming forward is reasonable.
The answer to the question will depend very much on the facts and circumstances, but survivors should not delay in pursuing a claim. Every day that passes carries the risk that it will be too late.
Some survivors may look to those legally responsible for the abuser, for example an employer. If the abuser has died the former employer again may rely on the limitation defence. The argument will be that a fair trial is no longer possible given that the abuser or alleged abuser is dead. If, however, there is evidence that proves the sexual abuse regardless and/or there had been successful criminal proceedings then arguably the fact that the abuser (or alleged abuser) is dead is not so significant.
To conclude the answer to the question is very fact sensitive. There are considerable obstacles to pursuing a successful case if the abuser is dead but much will depend on the circumstances.
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