Frequently Asked Questions
Common Evidence used in Civil Sexual Assault Cases
Medical or Clinical Records
In civil sexual assault cases, medical records hold significant importance. Clinical records from treating physicians serve as crucial trial evidence. Additionally, therapists’ or counselors’ records help establish the extent of the plaintiff’s injuries. Despite the general privilege surrounding medical records, they are usually admissible in civil sexual assault trials if they are relevant to the case. Defendants might need to request these documents via a court motion, which often becomes a contentious aspect of the trial due to the sensitivity of private medical information.
Character evidence, often testimonial, sheds light on the personal traits of the individuals involved, typically the plaintiff or defendant. In sexual assault cases, the defendant’s character is frequently under scrutiny, especially if the defense denies the allegations by claiming the defendant is “not the type” to commit such offences.
When individuals face both criminal charges and civil lawsuits for sexual assault, these proceedings usually occur simultaneously due to existing limitation periods. A criminal conviction can serve as strong evidence in the civil case. However, it alone is insufficient to secure a judgment for the plaintiff. The plaintiff must prove at the civil trial that the damage or injury resulted from the accused’s alleged assault, regardless of the criminal outcome.
Victims of alleged sexual assault can pursue civil lawsuits regardless of criminal charges. In cases where criminal charges and court proceedings have taken place, both parties can use testimony from the criminal case in the civil proceedings, with certain conditions met, including the opportunity for cross-examination and consistent parties/representatives in both proceedings.
In sexual assault cases, plaintiffs often lack independent evidence to prove their claims. Hearsay evidence, statements made by individuals outside of the legal proceeding, becomes essential. Courts assess the necessity and reliability of hearsay evidence on a case-by-case basis. Factors considered include corroborating evidence, absence of fabrication motive, and absence of alternative ways to present the evidence. Plaintiffs must demonstrate these factors to the court for hearsay evidence to be admissible.
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.
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 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.
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.
Aside from the compensatory damages granted by the court to cover direct losses incurred by the plaintiff due to the assault (such as lost wages and medical expenses), punitive damages might also be awarded. These damages are granted in cases where the defendant has committed an act that deeply disturbs the moral conscience of the court. Furthermore, punitive damages can be given if the defendant’s behavior was callous, arrogant, or violated the ordinary standards of morality. Generally, punitive damages are not awarded if the defendant has already been criminally convicted based on the same set of facts. However, if the defendant held a position of trust or authority over the plaintiff, this rule does not apply. In such cases, the court has the discretion to award punitive damages, irrespective of whether the defendant was criminally convicted for the sexual assault. Defence counsel is often fighting various forms of damages which will be used by the court to assess the overall harm to the complainant. It is possible to defeat certain forms of damages and not others.
Can you be sued by Former Employees?
In specific situations, yes, employers might bear vicarious liability for sexual assaults committed by their employees. These institutions can also include school boards, churches or other governing bodies.
Typically, the employer’s business entity is named as the defendant. Whether or not an employer will be deemed vicariously liable is determined by the courts on a case-by-case basis. To establish liability, the courts first review relevant precedents. They examine past cases with similar fact patterns and, if found, use these precedents to guide their decision. If no comparable past case exists, the courts consider broader public policy factors. These include: (1) the scope and authority of the employer’s enterprise, (2) the relationship between the risk of employee misconduct and the employer’s activities, and (3) the connection between the defendant employer, the employee, and the employee’s actions. The court evaluates these factors to make a decision regarding the employer’s liability.
What is Historical Sexual Assault?
Following the 2016 amendments to the Ontario Limitations Act 2002, there has been a significant surge in historical sexual assault lawsuits. It has become increasingly common for survivors of sexual assault, especially those who were unsuccessful in criminal proceedings against the accused, to pursue compensation through civil lawsuits. Public support and increasing awareness about sexual misconduct has also led to an increase in claims. However, like many claims, not all are legitimate or necessarily as aggravating as stated in the pleadings. Each case must be litigated based on its own facts.
In such legal actions, various allegations can be raised. Typical claims encompass sexual assault, intentional infliction of mental suffering, and sexual battery. Within a civil context, sexual assault denotes deliberate actions by the accused that create an apprehension of imminent sexual contact. Intentional infliction of mental suffering arises when the defendant’s behavior is outrageous and intended to harm the plaintiff or knowingly causes harm. Sexual battery, a legal remedy for sexual misconduct, mirrors civil battery but involves sexual physical contact. Notably, in a civil sexual battery case, the plaintiff isn’t required to prove injury resulting from the contact; instead, they need only establish that the defendant intentionally engaged in sexual touching.