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Civil action

Another avenue that you may wish to pursue instead of or in addition to a criminal prosecution is a civil action. In a civil action you bring the action against the perpetrator, not the police. If you are successful in a civil action you will be awarded money to compensate you. This is different to a criminal action where you receive nothing, but the offender is punished by being put in jail or fined. The perpetrator is called 'the defendant' and not 'the accused' in civil cases. There are several different types of civil actions.

Breach of duty of care

If someone who owed you a duty of care (such as a family member or teacher, priest or coach) abused you, you could bring an action against them for breaching that duty of care. You need to prove that:

(a) the person owed you a duty of care;
(b) the person breached that duty of care; and
(c) you suffered damage from that breach.

A third party (such as a school, church or club) may also be sued for negligence if it did not take appropriate action after becoming aware of the abuse.

Assault

You could also bring an action for common law assault. Common law means law developed by the judicial system and varies from state to state. There are two basic types of 'interference' with another person which are unlawful:

1) Non-physical assault. At common law, an assault may be an act committed intentionally or recklessly and which puts another person in fear of immediate and unlawful bodily harm. (Examples are threatening gestures).

2) Assault using force. In common law the term ‘assault’ may encompass a situation where a person causes force to be applied to the body or clothing of another person. The force used does not have to be violent, and can be as slight as a mere touch. This means that even if your abuse was not violent, it can still be assault. In Queensland, Victoria and Western Australia the use of force includes using heat, light, electrical force, gas or odour so as to cause injury or personal discomfort to another person.

Some acts may be justified if done by a parent or a schoolteacher and considered reasonable discipline. For example, if a mother hits her child's hand for touching the toaster this is probably reasonable. If a mother beats her child for hours, this would clearly not be reasonable discipline.

Civil actions have advantages over the criminal process:

arrow right Most significantly, you do not need to prove beyond reasonable doubt that the offence occurred – you just have to prove that on the balance of probabilities, it occurred - the judge must decide whether it was likely that the offence occurred.

arrow right You are a party to the proceeding unlike a criminal trial where you are a witness. This gives you more say in how the case is run.

arrow right If you win the court will demand that the perpetrator pay you a certain amount of money (called 'damages'). In most states you can receive monetary compensation for loss of enjoyment of life, pain and suffering, and other losses. Significant sums of money can be awarded to you. Of course, if the perpetrator hasn't got much money, he or she may be unable to pay the amount required. However, he or she may ne obliged to sell assets in order to pay you.

Civil actions also have disadvantages:

arrow right Unfortunately, civil actions can be costly because you may have to pay for a lawyer unless you can get legal aid or assistance from a community legal centre.

arrow right If you lose, a court may order you to pay the perpetrator's costs.

arrow right If the perpetrator loses, he or she does not have a criminal conviction.

You should speak to a lawyer about bringing a civil action.

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