Civil Sexual Assault Defence Lawyers

It is not uncommon for victims of sexual assault to pursue both criminal and civil charges against their alleged attackers. Complainants in civil lawsuits alleging sexual assault will generally be seeking monetary damages for the injuries that occurred from the alleged assault. Due to the lower standard of proof in civil trials, plaintiffs who were not successful in gaining a conviction in criminal court may be able to gain a judgement in their favour in civil court.

To prove a case of sexual assault in a civil lawsuit the plaintiff must convince the judge that the allegations they have made in their claim are more than likely true. This is known as the balance of probabilities standard.

The Firm has defended historical civil sexual abuse claims which can often seek damages in the millions. These claims can be advance by family members or against professionals accused of being in a position of trust. In the Firm’s AO v. WT, the Firm defended a claim against a teacher for an incident that allegedly occurred in the 1980s. The claim was advanced nearly 30 years after the alleged incident.

The Firm has also discreetly resolved civil actions of sexual misconduct between employees in a position of power in large organizations. These allegations are often brought against high ranking executives, sometimes decades later for financial compensation. A common strategy used when being confronted with demands for large payments is the use of publicity associated with a statement of claim.

To meet this standard, a plaintiff may utilize a variety of types of evidence to prove their claim. Evidence commonly provided by both plaintiffs and defendants in civil sexual assault cases include; medical or clinical records, character evidence, a finding of guilt at a criminal trial, prior testimony from a criminal trial and the testimony of other witnesses.

In July 2019, the Firm secured a withdrawal of historical sexual assault, sexual interference and invitation to sexual touching from 1985 in its R. v. A.E. [2019] in Perth, Ontario. The accused was alleged to have committed sexual acts on younger family members as youth. Over a year of litigation, it was discovered the allegations were fabricated after a family dispute related to an inheritance. These investigations often involve vigorous police interrogation to compensate for the lack of physical evidence and witnesses.

The Firm regularly defends criminal historical sexual assault charges which may also involve simultaneous civil claims to recover money even if the accused defeats the criminal charges. Conversely, if the accused is found guilty of the higher burden of proof required for a criminal conviction, that is often used against them to support a finding of fact for civil damages.

The Firm frequently finds itself defending actions of civil sexual assault advance by family members decades later or individuals who previously held a position of power or trust over the alleged plaintiff. These claims are often made for well above 1 Million in damages.

CP24: Civil Sexual Assault Lawsuit at St. Michael’s in Toronto.

Global News Radio: Two Lawsuits against Harvey Weinstein are being settled.

Global News: Historical Sexual Assault Charges and Bill Cosby.

CityNews: Jordan Donich comments to CityNews regarding challenges with Sexual Assault Trials in Toronto.

CityNews: Jordan Donich provides expert commentary to CityNews regarding Sexual Assault Prosecution.

Frequently Asked Questions

What types of Evidence can be Expected in a Civil Sexual Assault Action?
-Medical or Clinical Records
-Character Evidence
-Criminal Conviction
-Prior Testimony
-Hearsay
Is the Burden of Proof Different in a Civil Sexual Assault Case?
What are Pleadings?
What are Motions?
What is a Motion for Summary Judgement?
What are some Defences to Sexual Assault in Civil Cases?
-Denial of the Allegations
-Consent

Civil Court Procedure in Sexual Assault Cases

What is the Limitations Act?
What is Discovery?
Discovery in a Civil Sexual Assault Trial
Discovery of Medical Records
What are the Possible Outcomes of a Civil Sexual Assault Trial?
What are Costs in a Civil Sexual Assault Lawsuit?
What are Damages?
-General Damages
-Punitive Damages
How much Money can Plaintiff’s be Awarded if they Win?
Can I be Sued for a Sexual Assault Committed by one of my Employees?
Historical Sexual Assault
Defending Historical Sexual Assault
-Denial
-Consent

What types of Evidence can be Expected in a Civil Sexual Assault Action?

Medical or Clinical Records

Medical records can be very important in a civil sexual assault case. Clinical records from a treating physician can serve as important evidence at trial. Additionally, records from counsellors or therapists may help demonstrate to the court the level of injury that was suffered by the plaintiff. Though medical records are generally privileged, the general rule in civil sexual assault trials is that they will be admissible as evidence as long as they are sufficiently relevant to an issue being tried in the case. A defendant in a civil sexual assault trial may be required to make a motion to the court requesting such documents be produced by the plaintiff. Plaintiff’s in these types of cases are often unwilling to provide private medical records and so this is often a particularly contentious aspect of the trial process.

Character Evidence

Character evidence refers to evidence, generally testimonial, pertaining to the personal characteristics of the individual being examined, generally either the plaintiff or defendant. Character evidence can be used to demonstrate to the court the type of person the individual is. In many civil lawsuits involving sexual assault the character of the defendant is often specifically at issue. In situations where the defence to the claim is denial of the allegations, the defendant will often argue that they are “not the type” to commit this type of offence.

Criminal Conviction

Individuals who have been accused of sexual assault may be both criminally charged by the police and also sued by the alleged victim. Due to the limitation periods that exist, it is likely that if both types of proceedings are initiated, it will be at the same time. If a defendant has been criminally convicted of the sexual assault, this will serve as prima facie evidence against them in the civil proceeding. Though this evidence definitely bolsters the plaintiffs case, it is not enough alone, to secure a judgement for the plaintiff. The plaintiff will also be required to prove at the civil trial, regardless of the outcome of any criminal proceeding that may have occurred, that the damage or injury that they suffered stemmed from the assault that the accused allegedly committed.

If evidence of a criminal conviction based on the same set of facts is introduced into evidence by the plaintiff, the defendant may rebut the claim by convincing the court that the allegations have no merit. In cases where the issue at trial is identical in both proceedings, the defence will have a much more difficult time making their case. If the only evidence the defendant has to offer is the evidence offered during the criminal trial, courts are very reluctant to side with the defence. Similarly, a criminal trial that ended in an acquittal of the defendant will not be enough, on its own, to qualify a judgement in favour of the defendant. Due to the higher standard of proof in a criminal proceeding, something that could not be proven in criminal court may well be able to be proven in a civil proceeding.

Prior Testimony

As mentioned above, it is possible for a victim of an alleged sexual assault to pursue a civil lawsuit against the alleged attacker regardless of whether criminal charges have been filed against the accused. In situations where criminal charges have been filed and court proceedings have occurred in regards to the incident, it is possible for both the plaintiff and defendant to use testimony from the criminal proceedings as evidence in the civil proceedings. As a general rule testimony given in prior proceedings is inadmissible in any other proceedings, even where they pertain to the same set of facts. However, the court makes exception where three elements are satisfied: there must be a chance to cross-examine the party who made the statement, the question that is at issue must be substantially the same and finally the parties and/or representatives must be the same in both proceedings.

Hearsay Evidence

In sexual assault cases, both civil and criminal, it is often impossible for the plaintiff to prove, through independent evidence, that the allegations they are making are true. Though the plaintiff may have told individuals close to them about the alleged assault, they may have no physical evidence to support their claims. As a result, it often becomes necessary to introduce evidence that would likely otherwise be excluded. Hearsay evidence is evidence of statements that have been made by someone outside of a legal proceeding. For example, if the plaintiff told someone about the alleged assault, that statement would be considered hearsay, as it was made outside of court where the declarant cannot be questioned further about the statement.

When determining whether or not the courts will allow the hearsay evidence to be admitted at trial they will look at whether or not the evidence is necessary and reliable. This standard is applied on a case-by-case basis by the court, depending on the facts of the particular case. In making this determination the court will consider whether the hearsay evidence can be corroborated by some physical evidence, whether the declarant of the statement had a reason to fabricate it and whether there is any other way to introduce this evidence not using hearsay testimony. It will generally be up to the plaintiff to demonstrate to the court that there is corroborating evidence, that the declarant had no reason to fabricate the statements and that there is no other way to introduce the evidence. If the evidence is deemed necessary and reliable it will be admitted by the court.

Is the Burden of Proof Different in a Civil Sexual Assault Case?

Yes. The burden of proof in all civil cases is proof on a balance of probabilities. This means that the plaintiff in a civil case must convince the judge that the allegations they are making are more likely than not true. The civil standard of proof is much lower than that of the criminal standard of proof which is proof beyond a reasonable doubt. Proof beyond a reasonable doubt means that the judge or trier of fact in the case must be almost certain that the allegations against the accused are true. As such, it may be possible to win a civil lawsuit against someone who has previously been found not guilty at a criminal trial for the same alleged offence.

Additionally, a defendant in a civil lawsuit cannot simply stay silent as would be their right in a criminal trial. A defendant in a civil lawsuit must reply to the allegations in the complaint filed by the plaintiff or they risk having a default judgement entered against them. If this happens, the court will presume that all of the allegations made by the plaintiff are truthful and will enter a judgement in favour of the plaintiff.

What are Pleadings?

Pleadings are the initial stage of a lawsuit and generally include a statement of claim, a statement of defence and counterclaims. The statement of claim is filed by the plaintiff and outlines the plaintiffs complaint and the damages that have allegedly occurred as a result. The statement of defence is the defendants reply to the claims made in the statement of claim. Should a defendant fail to reply to a statement of claim by offering either a defence or a denial for each of the allegations, they risk the court entering a default judgement against them. Finally, a counterclaim is a counter lawsuit filed by the defendant against the plaintiff claiming some sort of damages. The purpose of the pleadings are to clearly define the issues being litigated, to give fair notice to the defendant that they are being accused of a sexual assault and finally to aid the court in determining which party is telling the truth.

Generally, a statement of claim in a civil sexual assault case should be drafted broadly, which allows for broad discovery. As such, defendants in such a lawsuit may be entitled to particulars about the alleged assault. An applications for particulars can be made to the court, requesting more details of the alleged assault in cases where the statement of claim is very broadly drafted. A statement of claim that is very broad may be difficult for a defendant to answer, especially if little to no details are provided. In such a situation the defendant will be entitled to be provided with particulars about the claim in order to make proper reply.

What are Motions?

A motion is an application made to the court requesting that they issue a particular order or ruling, and is a way for lawyers to argue pre-trial issues. Motions are generally restricted to a particular issue. Motions may be used to ask the court to decide the case in a particular manner, or to force the opposing party to provide a certain piece of information to the opposition through discovery.

Motion for Summary Judgement

A common motion made in civil sexual assault trials and a quick way to dispose of the matter is a motion for summary judgement. A motion for summary judgement is a motion made by the defence requesting that the court enter a judgement in their favour prior to hearing the case. A motion for summary judgement will be granted where the defence can demonstrate to the court that there is no genuine issue to be tried and thus no merit to the accusations made by the plaintiff. A motion for summary judgement can be entered for all or part of a claim.

What are some Defences to Sexual Assault in Civil Cases?

Denial of the Allegations

One of the most common defences to civil lawsuits regarding sexual assault allegations is a total denial of the veracity of the allegations. If the allegations made against the defendant are untrue, the most basic defence is to deny these allegations to the court. If this defence strategy is chosen, the defendant will likely be required to provide some evidence to prove that they did not commit the offence. Unlike in criminal matters, a defendant in a civil lawsuit must reply to the allegations made against them. Failure to do so may result in a default judgement in favour of the plaintiff. As such, if the defendant’s trial strategy is to deny the incident occurred at all, they must provide some evidence to the court to bolster their version of events. For example, the defendant may provide the court with an alibi to prove they were in another location at the time of the alleged incident and thus could not have committed the assault.

Consent

Another common defence in civil sexual assault trials is consent. This defence consists of the defendant admitting that sexual contact of some sort occurred, but that it was consensual and thus not a sexual assault. For such a defence to succeed, the defendant must provide the court with sufficient evidence to convince the trier of fact that the consent was genuine. The court will not find that genuine consent occurred in cases where the plaintiff sought out the specific acceptance of the defendant or looked up to the defendant in some way. On the other hand, courts have decided in favour of the defence where the defence of consent has been utilized and where the defendant can show that the plaintiff had an opportunity to prevent the assault and failed to do so.

What is the Limitations Act?

The Limitations Act 2002 is a piece of legislation that places timelines on when civil lawsuits must be filed. For example, for many civil issues of law individuals have two years from the time the injury occurred to file the lawsuit. Prior to 2016 this rule applied in cases of sexual assault as well, meaning victims who had been sexually assaulted would have to file a suit against their alleged attacker within two years of the attack, or two years from the point at which the victim was capable of appreciating what had occurred.

With the recent MeToo movement, the Ontario Limitations Act 2002 was amended to remove the limitation period for sexual assaults, meaning a victim may file a civil lawsuit against their alleged attacker regardless of how much time has passed since the incident occurred. This amendment has caused a rise in the number of civil sexual assault lawsuits being filed in Ontario.

What is Discovery?

Discovery is the process in a legal proceeding by which the opposing parties provide one another with all documents that are relevant to the case. Rule 30.02 of the Rules of Civil Procedure states that parties are required to provide disclosure of all documents relevant to the issue in the case or claim. The term “documents” includes almost any document that relates to the issue in the case including but not limited to; medical records, clinical notes from a treating physician, notes and/or records from therapists, psychologists, psychiatrists, counsellors, criminal records, education records, employment records and tax records.

Discovery in a Civil Sexual Assault Trial

Due to privilege concerns that may exist from both the plaintiff and defendant relating to the production of sensitive records such as medical records, discovery is often a contentious phase of the civil trial process in sexual assault trials. Though some of the documents requested through discovery may be privileged, the general rule is that the documents will be produced regardless, as long as they are related to an issue in the trial. Showing relevance is fairly easy in civil sexual assault trials due to the often broad nature of the pleadings filed by the plaintiff.

Additionally, in building their defence, the defendant will often need to argue that any injury or damage that did occur to the plaintiff was a result of something other than the defendants actions. As such, almost any aspect of the plaintiffs life could arguably be relevant as the defendant could try to blame the damage on some other factor in the plaintiffs life. For example, if the plaintiff alleges that they have developed a drinking problem as a result of the trauma inflicted by the accused, the accused could argue that there are other factors in the plaintiffs life that caused her alcoholism. Since the defendant is only responsible to compensate the plaintiff for damage caused by the defendant, introducing other relevant factors from the plaintiffs life that could account for the damage may, at the very least, lessen the amount of damages the defendant must pay to the plaintiff should the court decide in favour of the plaintiff.

Discovery of Medical Records

Medical records, especially those of the plaintiff, are often highly relevant in a civil sexual assault trial. As such, the defendant will almost always request such records during the discovery process. Rule 33 of the Rules of Civil Procedure stipulates that a party in a lawsuit may make a motion to the court requesting that the adverse party in the proceeding undergoes a physical or mental medical examination. The court may grant this request where the evidence obtained from such an examination would be relevant to an issue in the trial. Due to the nature of sexual assault cases, such examinations would be relevant the vast majority of the time.

What are the Possible Outcomes of a Civil Sexual Assault Trial?

As with any civil lawsuit, once all the evidence has been presented to the court by both parties and the trial has concluded, the judge will determine which party they will enter a judgement in favour of. If a judgement is entered for the defendant this means the court was not convinced that the allegations made by the plaintiff likely occurred.  In this case the defendant will not be required to pay damages to the plaintiff for the alleged injuries they suffered. Should the court decide for the plaintiff, they will award either all of part of the damages requested by the plaintiff and order the defendant pay these damages. The court will also award costs, generally partial costs, to one of the parties depending on the outcome of the trial.

What are Costs in a Civil Sexual Assault Lawsuit?

Costs are the monetary fee’s associated with a civil trial. This would include lawyers fee’s and dispersements which are costs charged by the court for using their services, such as filing applications. When a civil sexual assault case has come to an end, the court will need to determine who will pay the court costs associated with the trial, which can be quite high by the end of a lengthy trial. The general rule in civil cases is that the loser pays the winners costs. Additionally, the court may use costs to sanction a party for bad behaviour during the trial. If one of the parties is an out of province resident, it is possible to make an application to the court for security of costs. If the application is granted, the court will order the out of province party to pay a certain amount of money into a trust account held by the court. This ensures that should the out of province party lose the case and be ordered to pay costs, they will not be able to leave Ontario and default on payment.

What are Damages?

Damages are generally the monetary compensation sought by the plaintiff for the injury caused as a result of the actions of the defendant. From the outset of the lawsuit, the plaintiff will have indicated to the court the exact amount of damages they are seeking. Once the case has completed, the court will determine whether to award all or part of the damages requested by the plaintiff. There are different types of damages that can be requested by the plaintiff including; general damages for pain and suffering, damages for the costs of future care, damages for the cost of future lost wages, aggravated damages which include intangible injuries, special damages such as out-of-pocket expenses, past lost wages and punitive damages which the court imposes to punish the defendant for offensive conduct.

General Damages

When determining how much damages to award the court will take into consideration virtually all relevant factors. When determining the fair assessment for general damages the court will examine the harm that resulted from the abuse, the duration the abuse (one occasion or multiple occasions), factors relating to the victim including their age at the time of the assault and any other factors that the court deems relevant such as the plaintiffs ability to work or loss of enjoyment of life. In some situations an expert witness may be necessary to provide the court with evidence to show the injury suffered by the plaintiff. A defendant is only legally responsible to compensate the plaintiff for the damage they caused and need not place the plaintiff in a better position than they were prior to the assault. As such, the process of determining the damages to award can be a complicated process.

Punitive Damages

In addition to the damages awarded by the court for direct loss suffered by the plaintiff as a result of the assault (loss of wages, medical expenses, etc.) the court may award punitive damages. Punitive damages are awarded in cases where the defendant has committed an act that offends the moral conscience of the court. Additionally, punitive damages may be awarded where the behaviour of the defendant was callous, arrogant or where it offends the ordinary standards of morality. The general rule regarding punitive damages is that they will not be awarded where the defendant has already suffered a criminal conviction based on the same set of facts. However, in situations where the defendant held a position of trust or authority over the plaintiff, this rule will not apply. In these situations the court is free to award punitive damages regardless of whether the defendant was convicted criminally for the sexual assault.

How much Money can Plaintiff’s be Awarded if they Win?

The amount of damages that may be awarded to plaintiffs in civil sexual assault trials may vary significantly from one case to another. The Supreme Court imposed a cap on the amount of general damages that may be awarded to a plaintiff in a civil injury case. The cap was set at $100,000.00 as of 1978, which in today’s dollars is roughly $370,000.00. Damages will be determined by the court on a case-by-case basis. The court will take into consideration many factors surrounding the case including the circumstances in which the assault occurred, personal characteristics of both the plaintiff and defendant, the relationship between the plaintiff and defendant and any other factors that the court feels are relevant.

The Victims Bill of Rights provides the courts with guidelines on how to determine what damages will be awarded to plaintiffs in civil sexual assault cases. The Bill states that the court shall not consider the criminal sentence imposed on the defendant if they have been convicted in criminal court of the sexual assault that is the subject of the civil lawsuit, when ordering the defendant to pay the plaintiff damages. However, when ordering the defendant to pay the plaintiff punitive damages the court must consider a criminal conviction and the sentence that resulted in cases where the defendant has been criminally convicted of the sexual assault that is the subject of the civil lawsuit.

Can I be Sued for a Sexual Assault Committed by one of my Employees?

In some cases, yes. Employers may be held vicariously liable for sexual assaults committed by their employees in certain circumstances. In many cases, the employers enterprise will be named as the defendant. Whether or not an employer will be held vicariously liable will be decided by the courts on a case by case basis. When determining whether or not liability exists for the employer, the courts will first examine precedent’s on the issue. The court will look to past cases in an attempt to find a case with a similar fact pattern. If one can be found, the court will follow the precedent and decide the case in the same way as the past case was decided. If the court is unable to find a past case with a sufficiently similar fact pattern, they will determine whether or not liability exists in light of broader public policy considerations. Factors that the court will consider in making this decision include; (1) the employers enterprise, and the authority that exists with it, (2) must be sufficiently related to the risk of wrongdoing on the part of an employee and there must be a sufficiently connected relationship between the defendant employer, and (3) the impugned conduct of the employee must be sufficiently connected to the defendant and the authority they exercise over the employee.

Historical Sexual Assault

With the 2016 amendments to the Ontario Limitations Act 2002, the number of historical sexual assault lawsuits have increased drastically. It is not uncommon for victims of sexual assault, having been unsuccessful in criminal proceedings against the accused, to file a civil lawsuit to seek compensation.

When filing such a lawsuit, there are multiple allegations that can be made. Some common allegations include sexual assault, intentional infliction of mental suffering and sexual battery. Sexual assault in a civil law context refers to intentional conduct on the part of the accused that would give rise to an apprehension of imminent physical contact of a sexual nature by the accused. Intentional infliction of mental suffering occurs when the defendant’s conduct is outrageous or flagrant, where the defendant intends to cause harm to the plaintiff or knows that their conduct will cause harm to the plaintiff. Finally, sexual battery is the civil legal tool available to redress sexual misconduct. Sexual battery is similar to civil battery, with the distinguishing feature being that the physical contact is sexual in nature. To win a civil sexual battery suit, the plaintiff need not prove that they suffered any injury as a result of the contact, rather they need only prove that they were intentionally touched in a sexual way by the defendant.

Defending Historical Civil Sexual Assaults

As with almost all civil cases, the best defence will depend largely on the particular facts of the case. With the recent amendments to the Ontario Limitations Act 2002, the limitation period in Ontario no longer applies to cases involving sexual assaults. An individual who has been sexually assaulted or alleges that they have been sexually assaulted may file a lawsuit regardless of how much time has passed since the alleged incident occurred.

Denial

The most simple and straightforward defence that can be raised in a civil sexual assault case is an outright denial. An individual who has been wrongfully accused of sexual assault must specifically deny all of the allegations outlined in the Statement of Claim. Failure to reply to any of the allegations will be taken as an admission to those allegations. To successfully raise such a defence, the defendant must bring forth evidence to present to the Court to bolster their denial.

In denying sexual assault allegations, the defendant will likely attempt to raise evidence to impeach the credibility of the plaintiff. Any relevant evidence that shows that the plaintiff has been dishonest in the past may help convince the Court that the plaintiff is being dishonest in the current case.

Consent

As with other cases of sexual assault, it may be possible to defend a historical sexual assault lawsuit but arguing that the victim consented to the sexual touching. For this defence to be successful the defence will have to satisfy the Court on a balance of probabilities that the sexual touching occurred and that the plaintiff did not consent to it. When dealing with historical sexual assaults, it is also important to research the age of consent at the time of the offence. If the offence is decades old, it is possible that the age of consent was lower at the time of the alleged incident. The age of the victim at the time of the alleged incident is important because individuals below the age of consent cannot legally consent. This means that even if the victim had verbally agreed to the sexual touching, their consent is vitiated due to their age.

Consent may also be negated if the defendant was in a position of trust or authority over the plaintiff at the time the incident allegedly occurred. For example, in many situations involving a teacher-student relationship, a student may not be able to give meaningful consent if the consent is obtained through the teacher’s improper use of authority. In these situations, any consent given by the student would be negated by the improper use of authority on the part of the teacher.

Quick Facts

What is Civil Sexual Assault?

Sexual assault in the civil context is very similar to its definition in criminal law. The main difference is the specific court system used and the standard of proof. Victims often pursue civil remedies because the criminal courts do not offer adequate compensation or where the complainant does not have sufficient evidence to secure a criminal conviction.

How much Money can a Victim Claim?

The amount of damages will depend on a number of factors. Courts will consider physical harm, loss of opportunity and emotional suffering. In some cases of historical sexual assault involving institutions such as schools, damages claimed can be in the millions.

How to Defend Civil Sexual Assault?

Defending allegations of civil sexual assault is not much different than criminal charges. The main differences related to the process of defending the allegations. In the civil system, there are discoveries, affidavit of documents and pleadings. The standard of proof is also lower in civil law, so it's technically easier to win.

How long is the Court Process?

Civil proceedings can take substantially longer than criminal charges. Unlike in criminal law, there isn't the same pressure for the Crown to move the case forward in accordance with the accused's s.11(b) rights. Many times the speed of the proceedings will be dictated by the motivation of the plaintiff and availability of financial resources.