Assault

Claiming for damages as a result of assault 

There are various types of assault, and it is important to know the difference and the different processes that you need to follow prior to making a claim.

Essentially, if you are going to claim for damages as a result of an assault, it will need to be on the basis of a charge that you have laid at the police station.

However, in order to lay a charge of assault, you first need to have been examined by a medical doctor.

If you have been assaulted

Starting with sexual assault, which is the sexual violation of a person without their consent.

There are various types of sexual assault, but the best known is rape. You need to know that sexual assault may be perpetrated on or by men and women and it is not confined to forced penetration by the penis, but may include a range of forced sexual acts.

As difficult as it may be, do not, under any circumstances, wash your hands, your clothes, your mouth (including brushing your teeth) or your genitals. Seek immediate medical attention at an emergency medical facility or a rape crisis centre such as Nthabiseng at Chris Hani Baragwanath Hospital. If possible, take a trusted friend or family member with you, as there may be important information to record which you may be too distressed to remember.

Here you will be fully examined and various samples will be taken, including nail clippings, genital and mouth swabs and possibly undergarments. A rape kit is used with a serial number on it. The rape kit is provided by a named police officer involved in the case, and the serial number of the rape kit is linked to your case number. It is advisable that you or your friend take note of the police officer’s name, their designation, the case number and the serial number of the rape kit.

The doctor must break the seal and reseal all evidence as well as sealing the box. This is handed from police to doctor, and doctor to police to maintain the chain of evidence. If this chain is broken, evidence may be disputed and the case may collapse. It is thus advisable to take clean undergarments to change into after your examination.

The doctor doing the examination should record in as much detail as possible all injuries sustained, drawing diagrams if possible. The box is handed over to the police who will assist you in obtaining what is called a J88 form. This form is a complete document that the medical doctor who examined you should complete describing all injuries noted, including your emotional status and any evidence of substance use. There are also diagrams that the doctor must complete that indicate injuries.

The doctor is also required to fill out an affidavit saying under oath that he or she has examined the patient. The J88 form serves as proof of the injuries sustained and will be necessary to lay and sustain a charge.

Make sure you get a full examination of all your injuries and that the doctor records and takes note of all of your injuries.

The common assault follows a similar process

Again, seek medical assistance immediately, do not change clothes, wash, clean wounds etc. Also do not delay, even if you know that your injuries are minor.

You will not be able to claim if there is no medical verification of the injuries you have sustained from your assault. As with sexual assault, the doctor will make notes and diagrams of your injuries, also on a J88 form. Please remember, it is not the doctor’s duty to verify the events of the assault, their duty is merely to record the injuries and state whether they are in keeping with the alleged method of assault.

How to make claim

The J88 form does not constitute a charge, nor is it a case number. You still need to lay a charge of assault with the police, either at the hospital if there is a one-stop rape crisis centre, or at your police station. It is then up to the police to investigate your charge and to decide whether to prosecute the case criminally. You may also wish to pursue a civil claim, even if the police do not proceed with prosecution. A case may not be prosecuted if the injuries are very minor, or if there is contested evidence of the circumstances surrounding the event.

A criminal case needs to be proved beyond reasonable doubt, and a civil case is judged on the balance of probability. You can also pursue the case civilly, in addition to a criminal case. A criminal case is taken up by the state prosecution authority, whereas you will need to pursue the civil case yourself.

If you are pursuing a civil claim against the person who assaulted you, you will need to decide in advance how much you are looking to claim from the person. This could include the costs of your medical attention and loss of earnings immediately after the assault and in the long term. Also, consider the long-term emotional effect of the event, and the fact that you might need psychiatric and or psychological intervention and care.

When you discuss your claim with your lawyer, you need to factor in the hidden costs of claims, which include lawyers’ fees and expenses. In some cases, lawyers will take your case on a no-win, no-pay basis, but they will take a significant portion of any payout you win.

Otherwise, their fees must be budgeted for as you consider your claim.

If you are at fault

Assault can take place where you are the undisputed innocent victim of the crime, but it can also take place under circumstances where there is a mutual aggravation, such as in a fight. If your assault happened in the context of a fight, this does not mean that you cannot lay a charge of assault, but you need to be aware that you may also be charged with assault for your part in the incident. Even if you did not physically assault your assaulter, you might be shown to have provoked the assault by your words or actions.

If there were witnesses to the assault, they may be called upon to testify in favour of your criminal injury claim or refute your evidence. You should also be prepared for a court appearance where your version of the event might be challenged. In some cases, your assaulter may choose to settle out of court and a lengthy case can be avoided.

In either course of events, a lengthy and expensive process can be expected, also if the case proceeds in court, you may be at risk to criminal charges if the assault involved retaliation on your behalf.

At the end of the day

Any instance of assault will be extremely traumatic, no one wants to have to claim for a case of assault, however in the case that you are the victim of an assault, you are entitled to seek compensation for the damages you suffered.

Always ensure you avoid any interaction with the perpetrator and do not attempt to seek revenge, in the case of an assault, you want to be able to deal with the situation and healthy move forward with your life.