Civil suit gives sexual abuse victims more control

Civil lawsuits give sexual abuse survivors a degree of control and accountability that they cannot achieve in criminal cases, Toronto civil sexual abuse lawyer Elizabeth Grace tells AdvocateDaily.com.

Four women recently opted to file civil claims against a theatre company director, alleging unwanted touching and sexual harassment, rather than complaining to police about his behaviour.

In a statement, the women’s lawyer said her clients had chosen a civil claim over criminal proceedings, alleging it “gives them the control that was taken from them by the years of abuse,” CBC reports.

Grace, a partner with Lerners LLP, who was not involved in the theatre case but has over 20 years of experience litigating sexual abuse cases, explains that a criminal case is about whether a crime was committed. In contrast, a civil case is about compensation. A civil suit deals with “whether a person or company must compensate an individual who has been harmed by the unlawful conduct of another,” she says.

According to Grace, the very high burden of proof on the Crown in a criminal case, which must prove that a sexual assault happened “beyond a reasonable doubt”, makes it less likely that abusers will be held accountable for their misconduct than if they are sued civilly. The lower standard of proof in a civil suit means a sexual abuse plaintiff need only convince a judge that her or his version of events is “more likely than not the correct one.”

“That’s a significantly lower burden,” she says.

“The presumption of innocence means the accused has a right to remain silent and not participate in the criminal process,” Grace says. “In a civil suit, by contrast, the alleged wrongdoer has no right to remain silent. They must actively participate in the process by handing over documents and speaking, or face the negative consequences of not doing so.”

The greater control a sexual abuse survivor has in a civil suit derives from having party status, and not being a mere witness. In a civil case, the parties are the plaintiff (the person who says she or he was sexually harassed or assaulted) against the defendants, which usually includes the alleged perpetrator. In a criminal proceeding, by contrast, the survivor is known as the “complainant” and is only a witness, albeit an important one, Grace explains.

“With party status comes decision-making authority. That includes basic decisions about how to present one’s case, what witnesses to call, whether and on what terms to settle a case, or whether to push on to trial,” Grace says.

The greater accountability that can be achieved from a civil compared to a criminal case comes from the fact that “the net of legal responsibility is cast broadly to catch more than just the direct perpetrator,” Grace notes.

For example, employers that placed the perpetrator in a position of power and authority which was then used to abuse a vulnerable person, or organizations that had sub-standard systems to prevent or detect sexual abuse, can be held accountable through the civil court system. No such option exists in the criminal context, she says.

“Broader legal accountability offers the best hope for lessons to be learned and real change for the better to happen,” insists Grace.

The wave of recent disclosures about widespread sexual harassment in our cultural and educational sectors has, according to Grace, “highlighted how responsibility for what went wrong and what needs to change extends way beyond the individual culprits.” A civil lawsuit creates a financial incentive for change, while at the same time compensating innocent parties whose health, careers, and lives have been damaged by sexual misconduct.

Grace tells AdvocateDaily.com that recent legal developments have opened the way for more victims of sexual misconduct to sue in civil court.

In 2016, Ontario’s legislature dispensed with all limitation periods for sexual assault. Time limits were also removed for “any other misconduct of a sexual nature” in cases involving minors or dependent relationships, which could include sexualized stalking or harassment.

Ontario’s Victims’ Bill of Rights also provides a direct right of civil compensation against someone convicted of sexual offences, she notes.

Still, Grace says victims of sexual harassment and assault have the option of pursuing their alleged perpetrators in both the criminal and civil courts. They may also have remedies through other legal processes, such as by filing a complaint with a human rights tribunal, applying for monetary assistance from a criminal injuries compensation board, applying for workers’ compensation benefits if they are entitled to do so, or filing a grievance if they are in a unionized work environment.

“There are many options, and going straight to the police may not always be the best solution”, says Grace.

However, if someone does go through the criminal process, that doesn’t necessarily end matters. If a criminal complaint results in a conviction, then a civil case regarding the same incident is possible. The conviction allows one to “essentially skip the liability phase because the individual perpetrator’s responsibility has already been proven to a higher standard of proof,” Grace says.

She notes, however, that liability will still have to be proven on a civil standard of proof against other defendants, such as the company that employed the perpetrator.

“But once there is a criminal conviction for a sexual offence, there is no question that sexual misconduct happened, so proving this is off the table at least,” Grace says. “But the plaintiff in a civil suit is still going to have to prove the harm or damages that were caused by the sexual misconduct.”

While a criminal conviction will have a significant impact on a parallel civil case, Grace explains a criminal acquittal will have minimal impact. This is because an acquittal does not amount to a statement of “innocence” or that sexual misconduct did not happen, but rather only a statement of “not guilty” based on the very high criminal standard of proof.

Where there has been a criminal acquittal, “the plaintiff in a civil suit will still have the opportunity to prove the sexual misconduct on the lower civil balance of probabilities standard,” Grace says. The plaintiff will also be able to force the alleged perpetrator to answer some hard questions about what happened, something that was not allowed in the parallel criminal case.

“That’s not to say an acquittal won’t have some practical effect on a civil case,” Grace warns. “If there were weaknesses in the case against an accused person that came out in the criminal context, then those same weaknesses may affect the civil case and make it less likely to succeed.”

This article originally appeared on AdvocateDaily.com