Always consult with a lawyer before you speak with the police about an allegation of a sexual offence.

Civil claims for sexual abuse

A general dissatisfaction with the Criminal Justice system, and the wave of the #metoo movement has turned victims more frequently to the civil courts as a means of getting justice. Civil litigation is not perfect, but, in my opinion it is empowering and more effective than criminal trials in terms of the complainants (the victims). As a Plaintiff (word for complainant/victim) you have the opportunity to confront your abuser, have a voice, and get the court to acknowledge some of the harm you suffered through financial compensation. See, no amount of money will take away the harm that was done to you, but the main purpose of a civil action is to place you in the state you would have been without the sexual assault.  Also, the civil justice may be useful as a deterrent for abusers, although I take all claims of deterrence with a grain of salt. The biggest challenges in pursuing civil remedies are the nature of the claims and the emotional harm suffered by the victims.  

LIability in civil claims

Usually, sexual abuse claims are based on the torts of battery and assault. But, there is a distinction between the two: Sexual battery is a broad definition:

An application of force which violates a person's sexual integrity without consent.

 

It includes a wide range of sexual misconduct from touching to rape. 

 

Sexual assault, however, does not require touching: simply creating a situation in which a person fears sexual harm by threats, words, or gestures of a sexual nature is sexual assault.  

 

In this day and age, it almost goes without saying that sexual assault and battery arise in various places like the family home, the workplace, and institution. It can be repeated, persistent, or an isolated incident.

Civil claims for Sexual abuse may include a breach of a fiduciary duty, for instance, by a parent, a teacher, a doctor, where the abuser is in a position of trust. Or Negligence, for instance, failing to supervise a teacher while he has children under his care. And, vicarious liability, for instance if an employer is held responsible for the misconduct of its employee.

 

In that instance, you can file a civil claim against both the employee who assaulted you and the employer. If both are held liable by a Court, both are responsible for the damages awarded.

burden of proof

The plaintiff must prove her case on a balance of probabilities: is it more likely than not that the defendant sexually assaulted her?

 

Until 2008, a plaintiff was required to provide corroboration, meaning independent evidence that would support her claim. But the Supreme Court in F.H. v. McDougall, 2008 SCC 53, acknowledged requiring corroboration would elevate the evidentiary requirement in a civil case above that in a criminal case. The Court stated that all civil cases are to be governed by the same standard of proof regardless of the seriousness of the allegations.

 

Of course corroborating evidence assists, but a victim is no longer required to produce corroborating evidence in order to prove their case. And, lack of consent is not a part of the victim’s burden of proof. The defendant, however, can raise consent as a defence.

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