According to British Medical Journal, a 29-year-old disabled man, born from an incestuous rape, has won the right to compensation. The ruling from Criminal Injuries Compensation Authority (CICA), is of immense significance as the court’s verdict is first of its kind in the UK.
The 29-year-old was referred to as “Y” throughout the court proceedings to keep his identity confidential. Y suffered from multiple disabilities that included severe learning difficulties, developmental delay, heart murmurs, hearing and sight problems, epilepsy, and lax joints. The victim’s mother was impregnated by her own father as a result of an incestuous rape. The sexual assault was traced back to the time when Y’s mother was just 11 years of age.
Earlier, CICA declared Y’s grandfather, who also is his biological father, to be guilty of the charge and convicted him of incest. Y’s mother also received compensation, being the victim of the crime according to CICA.
CICA is a state funded body that governs England, Scotland and Wales, in addition to deliberating compensations to victims of violent crimes. Initially, when Y’s lawyers pleaded the court to entitle Y to compensation, the plea was rejected. The argument Y’s lawyer put forward stated that Y, too, was a victim of the violent crime. A consequent appeal was made to the first tier tribunal known as the Social Entitlement Chamber, but the efforts were in vain.
The court, however, yielded to Y’s demands and the upper tribunal, the — Administrative Appeals Chamber — has overturned the earlier judgment from the first tier tribunal. He is expected to receive the maximum award of £500,000 (€633,000 or $721,000) when the case goes back to the authority.
The verdict had its roots in the 2008 scheme which stated that it is not a provision for a victim to be a “person” at the time of the committed crime. However, Y had been a subject to the crime and he had suffered injuries, even at the time of conception. The congenital defects he sustained and has suffered through the last 29 years are the result of DNA he inherited from his parents. Given that an incestuous relation alleviates the risk of a child being born with genetic defects, Y now had a legal right to compensation. It was also stated that the exposure of genetic defects was increased to 50% in Y’s case, whereas it constitutes only about 2-3% in the general population.
Earlier, the court argued that Y was a victim of the consanguineous relationship of his parents but he was not considered to be the direct victim of the assault. The judge stated, “His disabilities were written in his genetic make-up at the instant of his conception and it was therefore impossible to talk of him being injured.”
The reasoning adopted by the first tier tribunal came from the 1996 Scottish case that resembled Y’s case. In that case, the judge stated, “Congenital injuries cannot properly be held to be injuries within the meaning of the (1969 criminal injuries compensation) scheme.” He added that presumed pre-injury or post-injury, in case of an unborn child cannot be accounted for under the clause.
Earlier in 2014, a 7-year-old girl who suffered from fetal alcohol syndrome appealed to the court for compensation, but the appeal was rejected. Children suffering from fetal alcohol syndrome have developmental, learning and behavioral problems which may be accompanied by facial defects. The child’s condition resulted from her mother’s excessive drinking habit during pregnancy. The girl’s lawyer argued that the mother has inflicted harm to her unborn child that should criminalize the mother and compensate the daughter as a victim. It was argued that the mother was poisoning the fetus by consuming excessive quantities of alcohol despite receiving warnings.
It was claimed that the expecting mother used to consume eight cans of strong lager and half a bottle of vodka a day. These quantities were equivalent to 40-47 units of alcohol a day. To put into perspective, according to the guidelines of National Institute for Health and Care (NICE), alcohol quantities as low as 7.5 units daily might damage a fetus. This case was of an utmost importance as it delved deeply into the legal rights entitled to a ‘fetus’ matured into a person.
The court’s verdict came as a disappointment for CP (court name given to the girl so her identity was not disclosed) and as many as 80 cases of children suffering from fetal alcohol spectrum (FAS) disorder awaiting the verdicts of their cases.
On the other hand, British Pregnancy Advisory Service (BPAS) and the childbirth charity, Birthrights, were satisfied by the court’s ruling. The perspective they endorsed suggested that the law should not interfere with the choices of a pregnant woman and that the woman should have a right over her body.
It was also suggested that criminalizing expecting mothers for substance abuse would discourage them from admitting to their addictions and seeking subsequent help. According to the supporters of this verdict, the discouragement would lead pregnant mothers to terminate their pregnancies and criminalizing them would not help improve things.
The current ruling on Y’s case may bring a wave of optimism for CP and other people suffering congenital defects. In the near future, UK law might derive legislative amendments to help children living with rare medical conditions that can be traced back to the neglect of their parents.