Guiding Survivors: Navigating Litigation Options for Sexual Assault and Abuse Cases

I have the privilege of representing survivors of sexual assault and abuse in Court.  In my experience working with survivors, when they learn about the legal options available to them, they gain back a sense of empowerment in what can otherwise be a disempowering time. To mark Sexual Assault Awareness Month, I’ve written two articles to educate and empower survivors with the foundational legal knowledge they should have when deciding what their path of healing looks like.

Many people assume that the only course of legal action when surviving abuse or assault is to report the crime to the police and begin a criminal case. But what many survivors don’t know is that they can also potentially pursue civil litigation against responsible parties. This article will explain the main differences between a criminal sexual assault case and a civil sexual assault case. A future article will explain the process of litigating a civil claim and how working with a trauma-informed lawyer can make the process less painful for survivors.

(note: throughout this article, I will refer to people who have gone through sexual abuse or assault as ‘survivors’. This is a personal preference. In court proceedings, survivors are instead referred to as ‘complainants’ or ‘victims’ pursuant to the relevant legislation.)

The offence

Civil litigation deals with “torts”, which is a legal word for wrongdoing between private parties. A tort occurs when someone intentionally or negligently causes ‘damage’ to another person. This can be physical, emotional, and/or psychological injury. In a sexual assault case, an example of a relevant tort could be assault or battery.

Criminal cases concern crimes, which are actions or omissions punishable by law and defined by the Criminal Code of Canada. Crimes can cause physical, emotional, and/or psychological injury to an individual but they are also seen as an attack on society and a violation of public order.

Sometimes a person’s actions can be a tort and a crime. For example, sexual assault can be both.

Do I have to report within a certain time?

No. You can report a sexual assault/sexual abuse to the police or begin a lawsuit at any time – even decades later.

There are various reasons why you may not have reported a sexual assault or abuse at the time it happened. Some people don’t report right away because they were children at the time of the incident(s). Some don’t report because they are afraid of the consequences or because they feel unsafe reporting. Some feel shame or guilt. This is all understandable and isn’t a barrier to legal action. Our courts and legislatures have recognized that survivors of sexual assault or abuse may face barriers to reporting or suing, including the ones listed above. Therefore, the typical two-year limitation period that applies to most civil cases doesn’t apply to sexual or domestic assault or abuse claims.

That being said, you should take legal action as soon as you are able to.

Who is involved? How does the action start?

Civil litigation begins when a party known as the ‘plaintiff’ (in this case, the survivor) files a claim in court against another party known as the ‘defendant’. In sexual abuse cases, defendants to an action can range from individual perpetrators (the person who commits the act) to the perpetrator’s employer or the institution where the abuse occurred (for example, a school or church). Who will be sued varies on a case-by-case basis.

You don’t need a lawyer to begin a civil claim, but litigation – particularly around sexual assault – can be complex. If you consult with a lawyer, they will offer their opinion of your case, including the likelihood of success, and will also tell you about any risks involved. A good sexual assault lawyer will understand that the litigation process can be re-traumatizing and will do their best to minimize any trauma to you.

A criminal case begins when you make a complaint to the police. The police will investigate and decide if they will bring formal charges. If they bring formal charges, the perpetrator will be arrested. From there, the Crown Prosecutor (the “Crown”) will decide if the crime should be prosecuted.

In a criminal case, the main parties are the state (referred to as the “King in the Right of Canada” or ‘Rex’ which is Latin for ‘King’) and the accused(s). The state is represented by lawyers called Crown Prosecutors. Crowns do not directly represent survivors. Instead, they act in the best interests of society as a whole. This is because crimes are seen as an attack on society and a violation of public order.

What will my role be?

In civil litigation, you are known as the ‘plaintiff’. You will provide evidence as a witness, but you’ll also have more say in what happens in the case. Some plaintiffs are very involved and may ask their lawyer to give them frequent updates. Some plaintiffs are only involved when it’s time to provide evidence or at the resolution of a case (such as settlement discussions or at a trial). It’s a good idea to speak with your lawyer about how involved you’d like to be. Together you can establish boundaries and expectations. Ultimately, your lawyer will be navigating the legal system for you and advocating on your behalf.

In a criminal case, you are a ‘witness’. Your role is to provide evidence that will help the Crown convict the perpetrator. Your level of involvement may vary depending on the Crown and the case. While you may be asked what your desired outcome is, you will not be the decision-maker. Sometimes, even if the survivor files a report with the police and wants to proceed, the Crown will decide not to pursue a conviction.

Do I have to identify myself publicly?

In both civil and criminal cases Court documents and proceedings are public record, including the names and other identifying features of the parties involved. Canadian courts operate on this ‘open court principle’ to promote an independent and impartial administration of justice. However, there are some exceptions to this rule. In criminal cases, the Court may impose a publication ban upon request. In civil cases, plaintiffs can ask the Court for an order only identifying them by their initials or a pseudonym (such as ‘Jane Doe’). Typically, these orders are granted when it is in the public interest to close the court. In sexual assault or abuse cases, the Court is more likely to grant these orders because protecting the identity of survivors encourages the reporting of assaults and protects against further trauma.

What are the goals of civil and criminal litigation?

Civil litigation aims to provide a remedy to the individual who was harmed. Compared to criminal law, it is much less about the ‘punishment’ of the defendant. Typically, the remedy is financial compensation. A plaintiff can make claims for:

• pain and suffering (also called general damages);
• loss of income, loss of earning ability;
• future care they may need as a result (such as psychological counselling);
• costs they have already incurred (such as psychological counselling paid for by the survivor); and/or
• a loss of interdependent relationships.

Your lawyer will be able to provide more information about the claims you can make and what they might be worth. 

Criminal cases are centred around restoring the public good rather than remedying the direct harm to the survivor. Penalties for convictions in criminal cases are aimed at punishing and rehabilitating the convicted, deterring people from committing crimes, and protecting society. If someone is convicted, they may be forced to pay a victim surcharge however the survivor does not receive this money directly.

Can I do both? What should I do?

You can pursue both a criminal and a civil case, but you can also choose to do one and not the other.

If you do decide to pursue both, your civil case may be ‘stayed’ (put on hold) until the criminal proceeding is finished. This is done because a criminal conviction will simplify your related civil case. A criminal conviction becomes fact in civil court which means you won’t have to prove in civil court that the assault or abuse happened. A criminal conviction isn’t necessary to win your civil case, but it’s helpful.

Navigating our court system can be a painful process. Some people choose not to pursue any legal action at all. Everyone is different and what’s best for one person may not be the right choice for another. If you’re interested in learning more about your options, you can reach out to me at [email protected] or 416-868-3130.

If you or someone you know has experienced sexual abuse or assault and needs support, the website of the Ontario Coalition of Rape Crisis Centres can help you find free and confidential support in your area. Additionally, the following crisis lines are available to provide Ontario-wide support:
Toronto Rape Crisis Centre: 416-597-8880
Assaulted Women’s Helpline: 1-866-863-0511
Kids Help Phone: 1-800-668-6868
Talk4Healing, for Indigenous women: 1-855-554-HEAL (4325)
Male Survivors of Sexual Violence: 1-866-887-0015