Guiding Survivors: What To Expect From A Litigation

This article is the second in my two-part series written to empower and educate survivors with knowledge to help them better navigate the legal system (if that’s what they choose).

(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.)

As I mentioned in my previous article, two main ‘streams’ of legal action are available to survivors (criminal and civil). Survivors who choose to pursue civil litigation should speak with their lawyer about potentially retraumatizing situations that may arise throughout the process. I never intend to scare or discourage someone from pursuing litigation, but it is important to me that survivors know what lies ahead. Below are a few examples of difficult parts of litigation and how your lawyer can support you and minimize retraumatization.

Litigation is overwhelming and can take a long time.

Our legal system can seem complicated and overly formal. It is not an organic process. It involves rules, procedures, legal concepts, and jargon that most people without legal training don’t understand. Survivors can feel overwhelmed and anxious. Explaining each step of litigation and its purpose as it happens can give survivors a sense of agency and clarity. If you don’t understand why something is happening or what the process means, don’t be afraid to ask your lawyer to explain it to you in simple terms as many times as you need.

The complexity of litigation usually means that it will take a long time, often years. It can be incredibly frustrating for survivors who want (and deserve) to be compensated and put the abuse/assault behind them to then endure years stuck in the legal system. I can use some legal strategies to ensure the case keeps moving forward, but there is no guarantee that the process will be straightforward and efficient.

I do my best to be upfront with anyone I speak with about how long things may take. It’s important that the lawyer and survivor are on the same page about what litigation requires to achieve the best possible result.

You will have to relive your abuse/assault.

The level of detail required may feel excruciating. For example, your lawyer will need to know everything to advocate for you. Even things you feel shame about or may feel are “harmful” to your case. A good lawyer will never shame you or scold you for your actions. Trauma manifests differently in everyone, and survivors may react to abuse or assault in many ways. When advocating on your behalf, lawyers must recognize this and address it with the defence, experts, judges, and the jury.

Your lawyer should know that reliving the abuse/assault can be triggering and emotional. They should never make you feel rushed or make you feel bad about getting upset. Trauma-informed lawyers know that creating a calm, safe space for their clients will allow the survivors to feel ‘heard’ and will often help them share their stories with the level of detail we require to advocate on their behalf.

It’s important that survivors feel safe and listened to while we talk, but it’s also important that I know they will be okay once our meeting ends. Sometimes, this involves coordinating with the survivor’s treatment providers or family members, or sometimes, it involves providing them with community resources. Other times I encourage them to do something relaxing and restful after we talk. Again, everyone is different and may need different levels of support.

You may be aggressively questioned.

Even if your case doesn’t go to trial, you will likely have to go to an examination for discovery, where you will be questioned by the Defendant’s lawyer.

The examination process is inherently stressful – even when the questioning lawyer is respectful and mindful of the subject matter. It’s an interrogation, not a conversation. You will not have control over the narrative, and it isn’t a chance to tell your story in your own words. Defence lawyers will ask questions with the intent of getting specific answers from you that will help their case and hurt yours. The examination can last up to seven hours and will feel intense.

I always tell my clients that the examination for discovery will likely be the most stressful part of litigation for them (unless the case goes to trial, which is a rare occurrence). They will have to relive the assault and abuse and share intimate details with a stranger who is ‘not on their side.’ To minimize the negative impact, we always prepare before the examination and set up supports for before and after. In a process that can feel disempowering, there is some agency that survivors have throughout. I remind them that they have the power to take breaks during the examination and they have the right to express emotion while answering questions.

The Defendant’s position will be offensive.

The goal of the defence is to reduce or eliminate any compensation that may be available to you. Defendants will adopt strategies to discredit plaintiffs. They may rely on ‘rape myths’ or stereotyping to shift blame off the perpetrator and onto the survivor. The defence may attempt to downplay the effect the abuse/assault has had on you. They may also use these strategies to intimidate a survivor into settling or dropping the case. While this may seem ‘wrong,’ many of these strategies can be carried out by the defence in a way that is allowed by law.

As much as I wish I could, I can’t shield my clients from this traumatic part of litigation. I often must discuss the defence position with my clients so we can respond. I do my best to warn clients that what they hear or read may be hurtful and offensive. In my experience, it’s important that survivors aren’t caught off guard and have time to process the information with support. We can’t change the content of the defendants’ positions, but we can put ourselves in the best position to fight back.

My job is to be a fierce advocate in and outside of Court for my clients. But I also consider it my job to minimize any traumatization through the litigation process. I can never promise that litigation will be easy or painless, but I can do my best to make survivors feel heard and supported while fighting on their behalf. If you’re interested in learning more about the civil litigation of sexual abuse or assault, 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