Sexual Assault Claims | Northern BC Lawyer Andrew Kemp

These situations may involve a one-time event, or a series of incidents occurring over a period of time. The victim could have been a child or an adult when the events occurred. Women are more likely than men to be victims of sexual assault. The perpetrator may have been a relative, an acquaintance, a neighbour, a person in a position of trust, or a complete stranger. The majority of victims don’t make a report to the police. For the victims who do report the matter to the police, a guilty verdict in criminal court is the result in a little less than half the cases. (For more detailed statistical information, see this primer from the Department of Justice of Canada.)

In the context of civil law, sexual assault is classified as an “intentional tort,” and the victim may sue the perpetrator for compensation for the victim’s legal losses. These legal losses may include:

pain, suffering, and loss of amenities of life (typically based on the psychological and emotional injuries);
income lost in the past, and the predicted income to be lost in the future, either because the victim was completely unable to work or because the victim’s career path changed for the worse as a result of the events;
reimbursement of counselling and other treatment expenses incurred in the past, and likely to be incurred in the future, as a result of the events;
aggravated damages (intended to compensate the victim where the wrongdoing occurred in humiliating or undignified circumstances, which is often the case in these claims); and
punitive damages (paid to the victim but not as compensation, but rather as punishment imposed on the perpetrator). Punitive damages are often not awarded if the perpetrator has been convicted and sentenced in criminal court, on the theory that the criminal sentence is sufficient “punishment.”

Criminal charges compared to civil lawsuits

In criminal law, the victim is the complainant, the police investigate the alleged offences, and the Crown prosecutor (Crown counsel) decides whether to approve charges. If Crown counsel approves charges, then the Crown handles the prosecution at its expense. In the criminal process, the victim incurs no legal costs. Their obligations are to provide information to the police and to Crown counsel, and to testify in court if asked to do so.

By contrast, in civil law, the victim is the plaintiff in the lawsuit. The victim must prove that the alleged events happened, the victim must prove the various legal losses that they allege they suffered, and the victim must pursue their claim through court to the end (whether that end is an out-of-court settlement before the case goes to trial, or a judgment after a trial). If the victim hires a lawyer to handle the civil-law claim, the victim must pay the lawyer’s fees, disbursements (expenses), and taxes (PST and GST). In some cases a lawyer will agree to handle the claim for the victim under a contingency fee agreement (a percentage agreement) so that the victim does not pay the lawyer’s fee unless and until the victim receives payment of a settlement or judgment. In any event, the victim has to decide whether, in all the circumstances, it is cost-beneficial to pursue the claim at all.

Is it worthwhile to pursue the claim?

If the perpetrator has the present or future ability to pay a settlement or judgment, that’s one thing. If the perpetrator has no present ability to pay a settlement or judgment and is not likely to be able to pay in future, that’s quite another. In addition, aside from the financial considerations, these claims can take months or years to conclude and that time and process can be emotionally difficult for the victim.

Privacy

In this type of civil lawsuit, it is often possible to obtain a court order at the beginning of the claim for the lawsuit to be filed using the parties’ initials instead of their full names, and for various materials filed in the court file to refer to the parties only by their initials.

The foregoing is general legal information only, based on the law of British Columbia. Readers should consult a lawyer to obtain specific legal advice about their particular situation.