Every year there are over 460,000 incidents of sexual assault in Canada. For every 1,000 sexual assaults, only 33 are reported to the police. 12 of those 33 result in charges against the suspect. Only half of those will end up being prosecuted and only half of those six will end up in convictions. In other words, for every 1,000 sexual assaults in Canada, 997 perpetrators go free.
For a variety of reasons, sexual assault victims struggle to find justice for their claims. While the criminal courts are required to convict an assailant on the highest standard of proof, civil courts can find a defendant at fault on a balance of probabilities. We will discuss what that means and more issues related to sexual assault lawsuits below.
Types of Damages in Sexual Assault Lawsuits
In civil sexual assault lawsuits, which we discuss in greater detail below, there are different types of damages for which a victim can acquire compensation. These include:
- Non-pecuniary, and
- Punitive damages.
Pecuniary damages are generally understood as economic losses. These include loss of earning capacity and expenses related to past and future care related to the sexual assault.
Non-pecuniary damages are generally heavily awarded in sexual assault lawsuits. These include elements such as emotional trauma, pain and suffering, loss of enjoyment of life, problems with relationships and so on.
Punitive damages are not meant to compensate the victim but rather punish the offender. These are meant to express society’s condemnation of their conduct and discourage future misconduct. The court must find that the defendant’s behavior was extraordinarily malicious, cruel, or vindictive.
Beyond a Reasonable Doubt vs. A Balance of Probabilities
In a criminal case, the prosecution is required to prove a defendant’s guilt beyond a reasonable doubt. This is by far the highest standard of proof you will find in a courtroom. It requires that a jury not have any doubts within the realm of reason that a defendant did, in fact, commit the crime the prosecutor said he or she did.
In terms of sexual assault cases, this can be tricky. In the majority of sexual assaults, you do not have a lone wolf attacking victims on a bike path or jumping out of a blind alley. You have two individuals who knew each other. One of these individuals is claiming that he or she did not consent to sex, while the other individual is claiming that he or she did. The jury is asked to decide whether or not the prosecution has proven that there was a lack of consent. The jury is advised that they may only convict a defendant if they are not possessed of any reasonable doubts.
For this reason, 99.7% of all sexual assaults do not result in convictions, and assailants end up going free.
A balance of probabilities is the standard of proof used in civil trials.
Balance of Probabilities
Essentially, a plaintiff in a tort case must prove that his or her accusations are more probable than not. This is a considerably lower standard of proof than a criminal case. When sexual assault victims are not satisfied by the results of a criminal trial, they can still take their case before a jury and receive compensation on that basis.
Advantages of Civil Sexual Assault Claims
Today, more sexual assault victims are turning to the civil courts for justice. In cases in which prosecutors do not feel that they have enough evidence to pursue charges or juries acquit based on reasonable doubts, victims can sue perpetrators on the basis that they suffered severe physical and emotional trauma. These types of cases are part of a greater class known as intentional torts.
In this case, the plaintiff is claiming that a defendant committed sexual battery. Like any form of battery, there are two requirements that must be proven in a court of law. Those are:
- That the unwanted physical touching was intentional; and
- The touching was unwanted.
These two elements constitute battery. The battery is sexual when there is a third sexual element to the unwanted touching. For those who have experienced such unwanted sexual contact, turning to the civil courts can be an empowering means of having their voice heard and holding their attacker accountable for his or her actions.
On the other hand, the only remedy in a civil lawsuit is money. Compensation for various damages is paid for by the individual who committed the assault and others who may have been culpable through negligence. It acts as a deterrent for other perpetrators and may help reduce the number of sexual assaults overall.
Damages in Sexual Assault Lawsuits
In cases in which a plaintiff sues a perpetrator for committing a sexual assault, jurors are asked to decide on what the damages are and the extent that the victim should be compensated. Typical damages include things like:
- Psychological distress,
- Emotional trauma,
- Interference with personal relationships, and
- Difficulty sustaining employment.
While sometimes the scars left behind by a sexual assault are visible, the vast majority and perhaps the most upsetting are those that are not. Thus civil litigation against the perpetrator of sexual assault focuses on the emotional harm caused to the victim and the way that it impacts his or her life.
Intentional Torts and Sexual Assault Lawsuits
In an injury or tort lawsuit, there are two bases for liability. Those are intentional torts like sexual battery and negligence actions that attempt to prove that a defendant is liable for something he or she failed to do or something that was done recklessly. In a negligence action, the plaintiff must prove that the defendant owed a duty of care and failed that duty of care. Sexual assault cases involve both types of lawsuits.
The perpetrator of a sexual assault is alleged to have committed battery and assault against a plaintiff. In the case of a sexual assault, the plaintiff alleges that the defendant used some kind of intentional application of force that violated the plaintiff’s sexual integrity. The act was taken without the plaintiff’s consent. Sexual battery can range from unwanted groping to violent forcible rape.
Assault, on the other hand, has a different meaning entirely. In fact, it does not require violence or touching at all. It involves one person threatening or gesturing in an obscene way so as to make the victim feel afraid. Assault and battery are often charged together.
If the individual who committed the sexual assault was a coach, priest, teacher, or parent, this individual may be sued on the grounds that he or she breached a fiduciary duty to the plaintiff. Additionally, the institution that allowed them to perpetrate the sexual assault may be sued on the grounds of negligence. There is more on that below.
Negligence Claims in Sexual Assault Torts
It is assumed that an organization has a duty of care to safeguard the health and well being of staff or those within the broader community. This means that they must not put others in harm’s way and are held to a specific standard to safeguard others. This is especially true when the broader vulnerable community is composed of children.
One very popular example of this would be the Catholic Church. The Catholic Church has settled billions of dollars in negligence claims because, instead of turning sexually abusive priests in to authorities, they instead moved them from one place to another, putting more children in harm’s way. Not only can the individual priests be sued for sexual battery, but the institution that allowed them to victimize people can, as well. This is because they knew of the threat and did nothing about it.
Another type of sexual assault or battery lawsuit that is common is workplace sexual harassment. In cases in which an employer does not respond to an employee’s concerns of sexual harassment, the company itself can be sued.
Victims are not limited in who can be named as a defendant in a sexual assault civil lawsuit. The company that facilitated the sexual misconduct as well as the individual who carried it out can both be sued.
What Happens When a Victim Files Criminal and Civil Charges?
A victim can file both criminal and civil charges against a perpetrator of sexual assault, but the criminal prosecution will proceed first. In the event that a criminal proceeding results in a conviction, it can be used as a very strong indicator against the defendant in a civil trial.
Logistically, prosecutors will discourage victims from filing civil charges while there is a criminal case underway. The reason for this is simple. It makes the victim appear as though he or she is only after money. Defence counsel will routinely use this information against the victim during the criminal trial. In other words, filing a simultaneously civil motion may compromise the integrity of the criminal action.
How Litigation Works in Sexual Assault Lawsuits
The initial stage of the litigation process involves hiring a lawyer who will represent your interests in the matter. Your lawyer will draft a demand letter that outlines the allegations against the perpetrator and suggests a monetary award to settle the matter. Typically, the perpetrator is concerned with preserving their public reputation. In these cases, agreeing not to discuss the matter (signing a non-disclosure agreement) can be a bartering chip during negotiations. While this will likely increase a victim’s monetary award, many victims do not find this a satisfactory remedy and would prefer for the matter to go before a jury.
Court proceedings are the next stage of the litigation process. When the plaintiff and the defendant cannot agree to terms, the plaintiff will file a Statement of Claim with the court. The discovery process will begin shortly thereafter. Each party is questioned under oath and, if one or both parties still do not agree to a settlement, the lawsuit will proceed to trial.
The discovery process involves testimony given under oath by both plaintiff and defendant and the presentation of evidence pertinent to the allegations. Experts are called to discuss the extent of harm to the victim and quantify any losses (such as work-related problems) that resulted from the assault.
After these have been completed, the case will move to trial. The court will be asked to decide:
- If the alleged sexual abuse occurred;
- The extent to which the abuse harmed the plaintiff; and
- Whether those harms resulted in losses to the plaintiff.
Sexual assault victims often suffer from feelings of shame and guilt concerning the incident. As a result, their lawyers often file motions to protect their names in court proceedings by using pseudonyms or banning the publication of the matter. In this case, the victim’s allegations would not be a matter of public record.
Should I Settle?
It is true that the vast majority of sexual assault lawsuits are settled before they reach a jury. The victim is not forced to relive the trauma and the defendant is not forced to publicly admit wrongdoing. Additionally, there are major costs to be factored in to a trial for the plaintiff.
These types of settlements almost always include confidentiality agreements. Such statements generally allow victims to discuss the matter with professional health care providers and family members. However, the may not permit the victim to discuss the details of the matter in public or over social media in a way that names the defendant.
In determining whether or not you should settle your lawsuit, it is important to question what your motivations are for filing the lawsuit. Preszler Law Firm can take you through the pros and cons of each choice you make.
Talk to a Nova Scotia Sexual Assault Lawyer Today
If you have been harmed by a perpetrator of a sexual assault or an institution that turned a blind eye while you were assaulted, the sexual assault lawyers at Preszler Injury Lawyers can help you find justice where the criminal courts failed. Sexual assault is a serious crime that leaves permanent scars. Yet those who perpetrate the assaults are seldom brought to justice by the criminal justice system. Our lawyers can help you find the justice that you have been denied. Give us a call at 1-800-JUSTICE or talk to us online for more details.