A sexual assault may give rise to both criminal and civil consequences.
The purpose of a criminal prosecution is to determine whether an accused person has committed a criminal offence and, following conviction, what sentence should be imposed.
A civil claim has a different purpose.
In a civil case, the survivor seeks compensation from the person and/or organization legally responsible for the harm suffered.
The two proceedings are separate.
Generally, a plaintiff in a civil action must prove the claim on a balance of probabilities. This is called the Standard of Proof.
This is different from the criminal standard of proof beyond a reasonable doubt.
The court considers all of the evidence and determines whether the plaintiff has established the claim according to the civil standard of proof.
Evidence may include:
There is no requirement that every case contain all of these forms of evidence.
Childhood sexual abuse frequently occurs in circumstances involving secrecy, manipulation and an imbalance of power.
A child may not understand what is happening. A child may be afraid to disclose the abuse. The perpetrator may be a family member, teacher, coach, clergy member, caregiver or another person whom the child has been taught to trust.
As a result, many survivors do not disclose childhood sexual abuse until adulthood.
The passage of time does not prevent a civil claim against the perpetrator.
Many sexual assaults are committed not by strangers but by people known to the survivor.
Claims may involve parents, step-parents, uncles, siblings, extended family members or other individuals who occupied positions of trust during childhood.
The fact that the perpetrator is a family member does not prevent a survivor from obtaining legal advice about a potential civil claim.
Sexual assaults usually occur in private.
There may be no independent eyewitness. There may be no photograph, recording or physical evidence. The survivor may not have immediately disclosed the assault to another person.
None of those circumstances prevent a civil claim.
Credibility and reliability can become important issues, and each case must be evaluated on its own evidence.
The absence of a witness to the assault does not mean that the assault cannot be proven.
Delayed disclosure is very common in sexual abuse cases.
People may remain silent for many reasons, including fear, shame, threats, family dynamics, emotional dependence, childhood vulnerability or difficulty processing what occurred.
A delayed disclosure does not prevent a civil claim.
A defendant does not have to be criminally convicted before a survivor can pursue a civil claim.
The criminal and civil justice systems apply different legal standards.
A criminal prosecution requires the Crown to prove guilt beyond a reasonable doubt.
A civil plaintiff generally proves the case on a balance of probabilities.
For that reason, the outcome—or absence—of a criminal prosecution does not necessarily determine the outcome of a civil claim.
The value of a claim depends upon its individual facts. No lawyer can responsibly determine the value of a sexual assault claim without first understanding what happened and the impact the abuse has had upon the survivor.
There is no legitimate calculator that can determine the value of a sexual assault claim based simply upon the type or number of assaults.
Courts consider the circumstances of the abuse and its consequences for the individual survivor.
Important considerations can include:
Obtaining a judgment and collecting a judgment are two different things.
Before pursuing a claim, it may be important to consider whether the proposed defendant has assets or whether another person or organization may bear legal responsibility.
Potential sources of recovery can include:
The financial circumstances of the proposed defendant can therefore be an important practical consideration when evaluating a civil claim.
If you experienced sexual assault or childhood sexual abuse, contact Hochberg Trial Lawyers for a confidential discussion about whether a civil claim may be available to you.
Lenny Hochberg – Lawyer