News analysis: In crisis mode

Policy benefits – the UK perspective

Bronwen Courtenay-Stamp, Partner at Trowers & Hamlins, a UK-based law firm offering services to the travel insurance sector, shared her insights with ITIJ. She started by explaining the process as to how the legal assistance provision in a travel policy might apply: “The first steps depend on when a lawyer is instructed. Usually, when an assault has occurred, the police are involved and very often they will give the victim a link to a lawyer in the local area. The process at that point involves the police investigation and hopefully they apprehend the perpetrator. If they do, then a criminal case will most likely proceed and the victim needs supporting through that, often with their family. There are some specialist lawyers who offer to provide such support through the criminal case, which can take a lengthy period of time. Those lawyers would obviously want to charge a fee.

“Generally, in conjunction with that support, there ought to be consideration as to a civil claim for compensation, and, depending on the country involved, that can be a standalone claim or be linked to the criminal proceedings.”

Prosecution: criminal versus civil

Daniel Scognamiglio, a lawyer for Blake Morgan in the UK, spoke to ITIJ about what happens after an assault has taken place: how can the victim prosecute their assailant, and what – if any – help can an insurance policy provide?

Very often, he explained, an allegation of sexual assault will lead to a criminal investigation and possibly a criminal

prosecution. “In most cases, however, the legal expenses section of an insurance policy (and in travel insurance policies in particular) will only provide cover for a civil claim for damages. It will be up to the insurer to decide whether to extend the cover to include cover for the criminal case,” he said.

England and Wales have quite a clear distinction between the criminal process and a civil claim for personal injury damages. This makes it easier for the insurer to confirm what is and is not covered. But that isn’t the case everywhere. “In some jurisdictions,” explained Scognamiglio, “the distinction between the criminal process and a civil claim for damages is not so clear. For example, one may require a successful criminal prosecution and the criminal court may then go on to decide whether to award damages. Alternatively, the success of a civil claim could be dependent on the successful criminal prosecution of the assailant.”

Prosecution: damages

If the assailant has no money, and would be incarcerated following a successful prosecution, it is unlikely that a civil claim for damages against the assailant would be worth pursuing. A lot of legal expenses claims are concluded at this point, as such claims would have no reasonable prospect of successfully recovering damages.

However, said Scognamiglio, the assailant’s own assets are not the only potential source of compensation following a sexual assault. On occasion, the state can step in to make a criminal injuries award. While available in the UK and most of the European Union, the damages awarded can be very low. Such claims usually need to be brought in the jurisdiction of the assault, rather than that of the victim or assailant. 

“Where possible,” he continued, “thought needs to be given to the recovery of damages from a tour operator or an employer of the assailant. Following recent cases such as X v Kuoni (2021), the courts in England and Wales can find that a hotel, their subcontractors or – as in X v Kuoni – the tour operator is responsible for the loss suffered by the victim of a sexual assault.”

Courtenay-Stamp said: “The difficult cases are where it is clear that the criminal case cannot lead to a successful compensation claim or where legal costs for the criminal case (and potentially including costs for the civil case) could outweigh the likely compensation to be recovered. Often there may be no defendant located, or, if found, the defendant is impecunious. Equally, there may be no form of state-provided compensation so no opportunity to recover compensation for the insured victim.” 

Courtenay-Stamp was in accordance with Scognamiglio’s assertion that the individual may not be the only source of compensation, though, adding: “Sometimes the defendant may be employed by an entity which does have insurance and there are cases where the offence has been committed perhaps whilst they were working for their employer and it may be the case that a claim may be brought against that entity – or a tour operator if a package holiday was supplied – for compensation.”

The amount of damages and legal costs to pursue a case can vary dramatically. While a claim may be worth pursuing against, say, a tour operator in England or Wales, or a hotel group in North America, the costs may be disproportionate if pursuing a claim against an assailant or a small hotel where the amount of damages or prospect of a recovery would be extremely low, warned Scognamiglio.

When costs are considered, support from insurers is generally provided in regard to assistance for the insured and for costs incurred as a result of the incident, for example if medical care or repatriation is required, according to the policy wording. Courtenay-Stamp pointed out that the general position under a travel insurance policy is that costs arising out of criminal activity are excluded. This is generally in place, she explained, to avoid a situation where insurers are asked to pay legal fees to defend a criminal prosecution against the insured, rather than a sexual assault case where the insured is the victim, not the defendant.

A knowledgeable local lawyer, preferably a criminal defence lawyer, can be very helpful in getting the police to act more quickly in their investigation

She continued: “Legal expenses cover in a travel policy is generally worded as to be provided where the insured has suffered injury and it appears reasonably likely that they will be successful in obtaining compensation as a result. So it would not be obvious that insurers would necessarily pay for assistance and support by way of a lawyer being involved in the criminal proceedings. But where the insured victim can show that either they are likely to recover compensation through the criminal proceedings, or that representation within the criminal proceedings will be helpful, and/or provide persuasive evidence in a subsequent claim for compensation, then insurers are often sympathetic and may provide some cover via a legal expenses section of a policy.”

Cultural considerations

The location where an assault takes place does, unfortunately, matter when it comes to rape or sexual assault claims. In certain places, it is less likely that a woman reporting such an incident would be believed; indeed, she may be arrested herself instead if a male assailant claims the woman behaved inappropriately.

The treatment of victims varies so widely that it would be impossible for any clear advice to be given to someone reporting an assault to a police force, as the advice would have to be different for each country. Scognamiglio, for example, told ITIJ: “On several occasions, and in several popular holiday destinations, the police have put the victim in the back of a van. They then drive around until the victim identifies an assailant, who is then also thrown in the back of the van. Fortunately, over the years, this sort of practice has become less commonplace. On the whole, police in the major resorts tend to be better than they used to be at dealing with these issues more sensitively and keeping records.”

When a person is sexually assaulted, an immediate call to the assistance provider is important for recommendation of the nearest appropriate hospital and police station

It’s also worth noting that travel insurance policies exclude claims made where the insured was under the influence of alcohol or drugs. But what if an assault was perpetrated under these circumstances? It would take someone with a heart of stone to deny that claim.

On this topic, Scognamiglio said: “Drink and drugs relevant to insurance is a topic in itself. This is also relevant where it comes to consent. I can’t see how someone can consent if they are intoxicated/inebriated. It would always be the perpetrator’s fault. [Unfortunately, some jurisdictions take a different view.] There seem to be an increasing number of date rape drug cases, although I have not seen any figures; this is anecdotal. It is worth reminding customers to be careful what they drink, avoid [accepting] drinks from strangers or leaving drinks unguarded, etc.”

Assistance for the assistant

For the claims handlers dealing with distressed policyholders who have been the victim of an assault or rape, the experience can be draining, traumatic and result in some post-traumatic stress. Therefore, preparing these staff appropriately beforehand, and supporting them afterwards, is essential.

Allianz Global Assistance’s Daniel Durazo told ITIJ: “Our assistance team members go through and have extensive training in customer service. Specifically, we train the team on how to handle very sensitive and complex cases ranging through a number of various situations.

“Our assistance and claims teams are designed in a way that each team member has support in every facet of dealing with a claim/assistance case. This includes having team members and members of leadership available for questions or concerns that may arise every step of the way. We continuously connect with our associates to see how they’re doing, how they’re feeling, and making sure they always know they have the support they need.”

Declan McDermott, Operations Manager – Medical Assistance at World Travel Protection, said: “Assistance staff are trained on how to support someone who has been a victim of sexual assault. This is done by playing scenarios of real-life calls, so the team can discuss and learn how they should be handled. We also run vicarious trauma training sessions for staff about handling and coping with acquired trauma. Assistance staff usually take the initial call and the customer would in almost all cases be immediately connected to the medical team of nurses and doctors, who are trained to support victims of sexual assault, and more adept (through previous work environments) at dealing with these types of calls. If medical assistance isn’t needed, they would be connected instead to a senior member of the security team, who are also highly trained in this area due to their background in law enforcement. We also offer 24/7 phone counselling services with experienced counsellors who can provide support for a range of mental health concerns, including traumatic events such as sexual or physical assault.”

What support do staff get during/after the claim? McDermott said: “Some of our case management team members may never have dealt with anything like this before so our focus is very much on their mental health and wellbeing. We know that everyone has a different level of what they are able to cope with, and the team are strongly encouraged to seek help if they are struggling with a case. Firstly, they know to speak to their team leader if they need support, and counselling is also available. If there’s been a particularly tough case, the senior management team will check in with the team leaders to see if they and their team need any additional support.”