Is NZ the right forum to rule on sexual assault allegations against Neil Gaiman?

2026-03-09 - 16:07

Comment: Last year Scarlett Pavlovich filed proceedings against Neil Gaiman in the United States, accusing him of sexually assaulting her while she was working as the family’s nanny in New Zealand. Pavlovich is a New Zealander who lives in the United Kingdom. Gaiman is a well-known English author with New Zealand permanent residency who lives in the United States. United States courts have now dismissed the proceedings on the basis that New Zealand is the more appropriate forum to decide the case. The district court in Wisconsin said that the only interest the United States had in the case was that it involved alleged misconduct by a permanent resident of the United States. New Zealand’s interest in the case was “much stronger” because Gaiman was also a permanent resident of New Zealand and had “a stronger interest in protecting one of its own citizens from wrongful conduct committed in New Zealand”. It is true that, on the face of it, New Zealand has a stronger connection to the case. So why did Pavlovich bring her claim in the United States in the first place? One of the reasons was the effect of New Zealand’s no-fault accident compensation scheme on her claim. Under New Zealand law, Pavlovich’s right to sue Gaiman for compensation is barred by the Accident Compensation Act 2001. In the United States, she might be able to circumvent the application of the ACC bar. In these circumstances, there is an argument that New Zealand is not the appropriate forum for the case, despite New Zealand’s (theoretical) interest in wrongdoing committed against its citizens within its own territory. What is the ACC bar, and why does it apply to sexual assault claims? When one person commits a wrong against another by hurting them, they can ordinarily sue them to hold them liable. In New Zealand, however, the ACC bar removes the right to sue for damages arising from “personal injury” covered by ACC. When a person suffers a “personal injury” as defined by ACC, they lose the right to sue the wrongdoer for compensation, even if they have not made an ACC claim. In return, they are covered by ACC without needing to show that their injury was caused by someone else’s wrongdoing. The term “personal injury” includes physical or mental injury caused by sexual assault. The effect is that victims of sexual assault do not have the right to sue the perpetrator for compensation. They are treated the same way as other victims who have suffered wrongs that amount to a “personal injury” under ACC – for example, the victims of car accidents involving negligence. In other words, New Zealand lawmakers have made a policy choice that “personal injury” caused by intentional wrongdoing should form part of the social contract underpinning ACC. Sexual assault, and other intentional wrongs, are treated the same as accidents. The right to sue has been traded in for a no-fault statutory compensation. Shouldn’t Pavlovich be happy with her ACC entitlements, then? The fact that personal injury is covered by ACC does not mean that the person is entitled to statutory compensation that is equivalent to a damages award. In fact, there is no guarantee that a person who has lost the right to sue will receive any ACC entitlements. When a sexual assault has caused mental injury, the person may receive compensation if they have suffered “permanent impairment”. They may also be entitled to certain rehabilitative entitlements (such as therapy), but there is no entitlement to a lump-sum payment to cover the future costs associated with the mental injury. There are no entitlements for pain and suffering. Rehabilitative entitlements are not available to persons who have left New Zealand. Pavlovich is studying in the UK, which means she is no longer entitled to free treatment. Is there no way around the ACC bar in NZ? Without the right to sue Gaiman for compensation, there are limited avenues for holding him accountable in New Zealand. The only option would be to sue Gaiman for exemplary damages. Claims for exemplary damages are an exception to the ACC bar. They would require Pavlovich to establish “truly outrageous conduct”. Her allegations are horrifying and, if proven, may well meet this high threshold. However, New Zealand courts have said that awards for exemplary damages cannot include any compensatory element for the harm suffered, and they must be kept to moderate levels. Pavlovich may not want to pursue an expensive civil claim against Gaiman if the best-case scenario is a moderate award of strictly non-compensatory damages. In the past, such awards have tended to be below $50,000. What about criminal law as an alternative? When sentencing an offender for a criminal offence, courts may be required to impose a sentence of reparation if the offender has caused a person to suffer harm. There has been no criminal prosecution of Gaiman for the alleged sexual assaults in New Zealand. Pavlovich did complain to the New Zealand police, but the police decided not to prosecute Gaiman, citing “insufficient evidence”. It is not clear why Pavlovich’s complaint failed the evidentiary threshold for a criminal prosecution. Gaiman’s position is that any sexual acts were consensual. In principle, cases are prosecutable even if they boil down to the respective credibility of the complainant and the defendant. Whatever the reason for the decision not to prosecute, the evidential barrier would be lower in a civil case, because Pavlovich would not have to prove her allegations against Gaiman beyond reasonable doubt. Even if the police had decided to bring criminal charges, there would have been additional barriers to a criminal prosecution because Gaiman had already left New Zealand. When a defendant is overseas and extradition is not a realistic prospect, a civil claim is usually the only way of holding the defendant liable. But would it be appropriate for the US to exercise jurisdiction, despite the connection of the case to NZ? The US court considered that the application of the ACC bar in New Zealand was not a reason to exercise jurisdiction over Pavlovich’s claim, in circumstances where New Zealand was otherwise the appropriate forum. The court said that it would only be prepared to exercise jurisdiction if the remedies available to Pavlovich in New Zealand were “so clearly inadequate or unsatisfactory” to be “no remedy at all”. It did not think that the remedies were so clearly inadequate or unsatisfactory. The court’s approach reflects an important feature of the laws governing cross-border disputes. Questions of jurisdiction and applicable law tend to be decided on the basis of connection. Here, New Zealand was more closely connected to the case, and the US court did not think that it should second-guess New Zealand’s policy choice of restricting the plaintiff’s access to a remedy by exercising jurisdiction over the case. Deference to foreign courts and foreign laws is an important feature of the laws governing cross-border disputes. However, looking at the reality of Pavlovich’s situation, there is an argument that the US court got it wrong, and that her remedies in New Zealand are “clearly inadequate or unsatisfactory”. Pavlovich has appealed the decision.