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

15 March 2017 by

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;

 

1 comment;


  1. The reverse would be appropriate i.e. Y should claim compensation from M & KM who are directly responsible definitely not CICS.
    Is pregnancy possible thorough rape?
    Though the second child might appear healthy externally there might be internal turmoil.
    I believe such cases should be openly Named rather than kept undercover/protected to deter others from such horrendous animal instincts.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: