Rape, incest and damage: but who is the real victim?

15 March 2017 by Rosalind English

Criminal Injuries Compensation Authority v First Tier Tribunal (Social entitlement Chamber) and Y by his mother and Litigation Friend  [2017] EWCA Civ 139

The predictability of genetic disorders continues to challenge existing law. Here, the Court of Appeal had to consider whether a child born as a result of incestuous rape could claim compensation under the Criminal Injuries Compensation Scheme (CICS) for his congenital disabilities. These were 50% predictable as a result of the nature of his conception, as opposed to 2-3% in the general population.

The court ruled against eligibility for such claims, partly because English law does not recognise so-called claims for “wrongful life”, and partly because harm caused before birth which has consequences after birth cannot be treated as an injury sustained by a living person. But the main reason for keeping the gates closed for compensation in these circumstances is that the child concerned never had, nor could have, any existence save in a defective state.

Details

From the age of 9 years, M was sexually abused by her father KM which, after two years, progressed to full sexual intercourse. Ten years later Y was born following incestuous sexual intercourse (agreed to have constituted rape) between M and KM. Y was born with a serious genetic disorder which was probably caused by the incestuous intercourse. Two years later M gave birth to a second, healthy child.

In 2012 Y’s claim for compensation under the CICS was rejected on the grounds that he was not a victim of a crime of violence and that his congenital condition was a result of the relationship between his parents and not of the assault itself. The Upper Tribunal upheld Y’s appeal and the Criminal Injuries Compensation Authority appealed that finding.

The Authority relied upon the ruling in the Scottish case of Millar, in which the CICB (its predecessor) had argued that the applicant had not suffered injury as her condition and disabilities were congenital and ‘inherent’ to her. Lord Osborne accepted this submission, saying that

… the concept of injury, in the context of a situation in which compensation for it must be assessed, presupposes a pre-injury state which is capable of assessment and comparison with the post-injury state. Essentially this, like the present case, was a claim for wrongful life, which is not recognised English law. (Millar(Curator Bonis to AP) v Criminal Injuries Compensation Board 197 SLT 1180)

As Leveson P observed, Y’s ‘uninjured’ state could only be never to have been conceived. The fact that 50% of children conceived by his parents could have avoided the disorder did not assist because the question had to be articulated whether, prior to the assault, there was a person or entity ‘Y’ upon whom the impact of the crime of violence could be measured. The answer was that there was not.

Reasoning behind the decision

There are a number of reasons – apart from public policy – why such a claim is not allowed (McKay v Essex Health Authority [1982] QB 1166). A practical objection is that a claim such as Y’s would be impossible to quantify; how does one define ‘injury’ if the uninjured state is not being conceived or born at all? In Y’s case, the only possible comparator which could lead to a meaningful quantification of compensation for ‘special expenses’ under the scheme would be a child born without the genetic disorder from which [Y] suffers. As the First Instance Tribunal had put it,

[Y] could never be that child: from the moment of conception his genetic disorder and consequent disability were pre-determined – not because every fruit of conception between those parents was bound to suffer that disorder but because [Y] was so bound and was in fact born with that disorder.

The appellants contended that there was nothing in the 2008 Scheme that indicated that a victim of a crime of violence had to be a fully formed embryo, foetus or new born child. The authority argued, by contrast, that if the crime of violence had not been committed, Y would not have existed;

Y could not be a victim prior to conception and if he had not received the genetic material that caused him to fall on the wrong side of the 50% possibility of genetic disorder, he would not have been ‘Y’ but some other person. Putting the matter another way, it is impossible to assume that Y had a pre-disability state from which to measure the extent of injury.

Related posts;

• Down the rabbit hole of genetic testing
• No duty of care to disclose father’s genetic disease
• other relevant posts