In New Zealand, mental injury arising from sexual violation is a coverable injury in our ACC scheme. The Court of Appeal in the decision of KSB v ACC has clarified the definition of sexual violation; confirming that a partners failure to disclose to his girlfriend that he was HIV positive and having unprotected sex with her constitutes sexual violation. Therefore, if diagnosable mental injury arising from such sexual violation occurs, it is coverable.
Salient points of the judgment include:
- A person cannot consent to unprotected sexual intercourse if they are unaware their partner carries an infectious disease capable of being transmitted via sexual intercourse (such as HIV).
- In such a situation, a claimant does not need to be infected with the infectious disease for cover for mental injury to be granted. It is enough that there was a diagnosable mental injury arising from the sexual violation.
- A claimant does not need to prove fault on behalf of the perpetrator of the sexual violation. The claimant does not have to reveal to ACC the name of the partner, the police do not need to be notified, and there does not need to have been a successful criminal prosecution.
- The claimant does not need to prove whether the perpetrator of the sexual violation knew the claimant had not given consent.
This case serves as a reminder of the purpose of New Zealand’s accident compensation scheme; the ACC is there to help those suffering from trauma arising from sexual violation; both physical and mental consequences. This case is not a revelation, but the Courts upholding the underlying principles of the scheme.
Kristen Bunn