04 Oct Trigger Warning: Discussion of Sexualized Violence. Civil Lawsuits Can Help Survivors of Sexual Assaults Attain Justice
TRIGGER WARNING: THE FOLLOWING BLOG POST DISCUSSES SEXUAL ASSAULT AND SEXUALIZED VIOLENCE
A Victoria woman has filed a civil lawsuit in the BC Supreme Court against two former Victoria realtors, alleging they sexually assaulted her.
As reported by the CBC, this lawsuit is part of a broader trend of survivors of sexualized violence turning to civil courts to seek justice, instead of relying solely on the criminal justice system.
At Acheson Law, we believe this shift to a dual approach – seeking justice through both the criminal and civil justice systems – is long overdue. Seeking restitution through the civil justice system as well as the criminal justice system may address some of the difficulties that can arise when claims are advanced through the criminal justice system alone.
This blog post will outline some of the challenges of pursuing justice in the criminal system, as well as advantages of the civil courts in the context of sexualized violence. For many reasons, discussed in further detail below, a civil claim may be a viable option for a survivor to attain justice, whether or not criminal charges are filed against their attacker and whether or not their attacker is criminally convicted. Furthermore since the fundamental purpose of the civil justice system is to compensate the plaintiff (the person bringing the suit), this option may help survivors of sexualized violence achieve some measure of vindication and closure.
Sexual Assaults and the Criminal Justice System
The unfortunate reality is that many survivors of sexualized violence report feeling failed by the criminal justice system after they report a sexual assault or battery. Whether due to to charges not being brought against their attacker, investigational shortcomings, traumatic questioning, or survivor blaming, the criminal system is not always the most effective avenue for survivors to obtain justice.
In addition to the above, another perhaps less publicized reason that survivors often feel let down by the criminal justice system is that the primary function of the criminal justice system is not to attain justice for the survivor, but rather to obtain attain justice for society as a whole. The purpose of charging and convicting an accused is to uphold the rule of law – to demonstrate that every individual in society must respect and adhere to the rules of that society. While this is an important function of the criminal justice system, it means the criminal process is not survivor-centred – resulting in survivors often feeling forgotten or left out of the criminal process.
Another hurdle survivors face in the criminal justice system is the burden of proof – meaning the level of ‘proof’ required to convict the accused. In a criminal trial this burden is ‘beyond a reasonable doubt’, which is extremely high and requires the prosecutor (otherwise known as the ‘Crown’) to have evidence capable of proving with virtual certainty that the accused person committed the alleged crime. This onerous burden of proof not only affects the Crown’s success at trial, but also their decision to even pursue charges in the first place.
In British Columbia it is the Crown – not the police – who decide whether someone will be criminally charged. The Crown makes this decision based upon the ‘charge approval standard’, which only permits the Crown to charge someone if they believe there is a ‘substantial likelihood of conviction’ and that bringing the charges is in the best interest of society. While charging someone who committed a sexual assault is always in society’s best interest, the ‘substantial likelihood of conviction’ hurdle can pose difficulties to the Crown, especially in cases involving sexual assault.
In addition to the burden of proof and the charge approval standard, evidentiary issues relating to the strength and availability of evidence can also arise. The nature of sexual assaults often limits how much evidence is available, and how strong that evidence is. For example, there may be no witnesses to the crime, and physical evidence may be sparse or non-existent. Furthermore, because of the especially horrific nature of sexual assaults, coupled with fear of being blamed or not believed, many survivors do not immediately report to police – a delay which can further impede the police’s ability to collect or preserve evidence of the assault.
Even if the accused is ultimately convicted, sometimes sexual assault survivors feel the sentence is unjustly lenient or insufficient given the horrific nature of the crime. Acheson Law agrees with this sentiment. However, as with the purpose of bringing charges, the purpose of sentencing is also often at odds with a survivor feeling that they have attained justice.
According to Section 718 of the Criminal Code of Canada, R.S.C., 1985, c. C-46 (the “Code”) the fundamental purpose of a sentence is to protect society, to contribute to society’s respect for law and to contribute the maintenance of a just, peaceful and safe society. Note that nowhere in this section does the Code say the purpose of a sentence is to attain justice for a survivor. While making reparations to victims is listed as an additional sentencing objective, it is not the primary one.
All of the above is to say that while we all hope survivors attain the justice they deserve through the criminal justice system, they unfortunately often do not. This is due not only to systemic failures and inadequacies in the criminal justice system, and a general misunderstanding of the nature of sexual assaults but also because the fundamental structure and purpose of the criminal justice system is not to attain justice for the survivor.
This does not mean that sexual assault survivors should not report to the police, nor that it is not possible to achieve justice and vindication through the criminal justice system. In addition, reporting to police can help protect other people from being harmed by the same individual. However what the above does mean is that – in addition to the criminal justice system – the civil justice system provides an alternate survivor-focused avenue to attain justice which is available whether or not the abuser is criminally charged or convicted.
As stated previously, Acheson Law believes in a dual approach: seeking justice through both the criminal and the civil justice systems. For this reason Acheson Law encourages all survivors to make a police report if they are willing, ready and comfortable doing so.
So how can a survivor initiate a civil claim? They can contact Acheson Law.
Why Acheson Law?
Acheson Law brings civil claims against individuals for the harm they cause to others. We bring lawsuits that are separate and distinct from those initiated in the criminal justice system. A survivor can engage Acheson Law to represent them in seeking justice regardless of whether or not criminal charges have been laid and regardless of whether or not the individual was convicted. If you or a loved one have been violated, Acheson Law is here to help.
How Do Civil Claims Work?
Civil suits function to obtain justice through compensation for survivors or for individuals who have been hurt or harmed by the actions of another individual. Civil claims aim to put the individual in the position they were before they suffered the harm. While we all know that is impossible, civil suits aim to do this the best they can through the provision of monetary compensation. Compensation is awarded by the court for many different facets of an individual’s life that are affected by the harm they suffered and can include money for psychological, emotional or physical pain and suffering, loss of earnings or loss of ability to work, past and future costs of treatment, past and future costs of housekeeping or childcare, in addition to money given to recognize the value of an interpersonal relationship the individual may have lost because of their injuries.
How is a Civil Claim Different from a Criminal Case?
As compared to the burden of proof in a criminal trial, the burden of proof for a civil lawsuit is a “balance of probabilities”. This standard is lower than the “beyond a reasonable doubt” standard necessary in criminal cases and generally requires that the plaintiff prove that there is a 51% chance, or that it is “more likely than not” that the harm occurred and was caused by the defendant. This means the evidentiary issues that often impede the success or viability of a criminal case are not as determinative in a civil claim.
What if a Lot of Time has Passed Since the Assault?
It is never too late for a survivor to bring a civil claim against their attacker in British Columbia. While lawsuits initiated for other wrongs often are subject to a two-year time limit, no such time limit exists for sexual assault claims. Again, as compared to criminal cases, where a time delay can significantly reduce the amount of evidence available and therefore lower the likelihood that charges are brought against an individual, a civil case is less effected by a time delay and can be successful regardless of the amount of time that has passed.
What if I don’t Want People to Know?
Acheson Law recognizes that survivors of sexualized violence may be apprehensive about bringing a claim against their attacker. To help with this, there are steps we can take to protect the identity of a survivor. These steps include using only the survivor’s initials on the documents that initiate the lawsuit in court. While the defendant has a right to know who is bringing a claim against them, so that they can take steps to defend themselves, using initials means that if the media or other members of the public see the court documents, they will not know the survivor’s name.
Another aspect of the civil justice system that may be appealing to survivors of sexual assault is that civil claims often settle outside of court. This means that the survivor can opt to settle without going to court and having a public trial.
What if I Feel Uncomfortable Coming to a Law Office to Speak to a Lawyer?
Acheson Law understands that survivors may not be comfortable coming into a law office. Unfortunately, law offices can be intimidating, especially if you are coming to report a very personal event, such as a sexual assault. While Acheson Law tries to make our office as approachable and welcoming for clients as possible, we want survivors to feel completely comfortable when they speak with us. With this in mind, we are able to conduct client meetings and initial consults by telephone or over zoom. We can also come to meet you wherever you are comfortable.
Acheson Law is a firm with both male and female lawyers. We understand the sensitive nature of sexual assault claims and that survivors may have a gender preference for the lawyer who works on their case. Acheson Law can accommodate this preference. Acheson Law also takes active steps to become and remain trauma-informed. We have attended a trauma workshop as a firm and are currently planning further staff training in this important field.
What if I can’t Afford a Lawyer?
Acheson Law knows that lawyers are expensive. We believe that financial worries and stress should play no part in a survivor’s decision to bring a claim against their attacker. To eliminate the financial barriers to achieving justice, Acheson Law works completely on a contingency basis. This means that we do not get paid until our client’s claim settles, and we do not get paid at all unless their claim is successful.
What Are My Options?
We know that the idea of bringing a lawsuit against someone may seem scary, overwhelming, or too complicated to manage. We understand that some of these fears may be exacerbated in a relatively small city like Victoria. We also know that individuals considering bringing a lawsuit likely have lots of questions. For these reasons we offer free consultations – we are available answer all your questions and explain your legal options completely. At the end of the consultation there is no obligation to move forward with a claim, or to retain Acheson Law as your counsel. Deciding to initiate a civil claim is a big decision, and Acheson Law realizes that you likely will need time to make this decision.
How Long Do Civil Claims Take?
If you decide to pursue a civil claim, it is important to note that civil claims, much like criminal cases, take time. Civil claims usually take at least two to three years to settle or go to trial. During this time Acheson Law will be working on your case and will contact you to attain regular updates on how you are doing and to give you updates as your case proceeds. However during this time, Acheson Law wants you to focus on self-care and on taking steps to heal and recover. We work diligently on your case so that you can focus on other aspects of your life.
Acheson Law has been representing only plaintiffs and helping clients achieve justice and fair compensation for almost 45 years – it is all we do, and we are good at it. Let us work to help you achieve justice.
Support for Survivors:
If you are the survivor of sexualized violence in the Victoria area and need support please contact the Victoria Sexual Assault Centre. Their website is www.vsac.ca and their phone number is 250-383-3232.