Sexual assault is an unfortunately common offence, with one in three women and one in sex men sexually assaulted at some point in their lifetime, whether in childhood or as an adult. Victims of physical or sexual assault can suffer severe and long-term physical and psychological effects, with everything affected from family life to the ability to hold a job.
What Is Sexual Assault?
Sexual assault is any form of non-consensual sexual contact or sexual misconduct, such as kissing, fondling, vaginal intercourse, anal intercourse, and oral sex. Consent is not considered voluntarily if it is obtained through pressure, coercion, force, or threats of force.
Consent is deemed not to be obtained if:
The agreement is expressed by the words or conduct of the person other than the complainant, or
The complainant is incapable of consenting to the activity (e.g., blacked out, impaired by alcohol or narcotics, unconscious, sleeping), or
The accused induces the complainant to engage in the activity by abusing a position of trust, power or authority, or
The complainant expresses, by words or conduct, a lack of agreement to engage in the activity, or
The complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
Considered an act of violence and a violation of human dignity, sexual assault is a criminal offence that may be pursued for compensation in a civil claim. While often a civil case will be put on hold while a criminal case takes place, a criminal conviction can strengthen a civil claim.
What Is a Sexual Assault and Injury Claim?
A sexual assault and injury claim aims to achieve financial compensation for the victim for the losses which have occurred. The purpose is to put the victim back in the place she/he would have been in had the assault not been committed. Obviously, no amount of money will ever quantify a person’s suffering or erase the memory of an assault, but it is important to understand the starting point for calculating damages.
A civil case for a sexual assault and injury is very different from a criminal proceeding. In a criminal case, the Crown prosecutor seeks a conviction, where the evidence supports it, with penalties (which are a maximum of 10 -14 years’ imprisonment, depending on the situation) for the accused. In a civil case, by contrast, the victim hires a lawyer who brings forth a claim against the responsible party(ies) for compensation.
Also different from a criminal complaint, the burden of proof is much lower in a civil case. The plaintiff is required to prove the claim on a “balance of probabilities”, not “beyond a reasonable doubt”, as in a criminal case.
Who May Be Legally Responsible?
If you have a sexual assault and injury claim, your lawyer may determine that more than one person may be liable in the lawsuit. Responsible parties could include:
The person or people who assaulted you, and
The institution or organization in which the person or people who assaulted you belong, and/or
The person who put you in a relationship with the assailant(s)
Although not necessarily, sometimes the assaulter is a person in authority like doctor, teacher, coach, religious leader, or parent who breached a ‘fiduciary duty’ to protect you.
If it can be proven that an institution or organization was negligent and vicariously liable for the assault that occurred, then you may be entitled to compensation from that institution or organization. Examples include an employer, school board, religious institution, or care facility. These types of parties may be just as liable to pay compensation as the abuser himself or herself.
Compensation may also result if a person or organization was negligent in putting you in a relationship with the assaulter, or in letting that relationship continue (e.g., if a parent left you to live with relatives who assaulted you).
What Compensation Is Available?
Two main types of compensation are available to you as a victim of a sexual assault: pecuniary and non-pecuniary. Pecuniary damages are for economic losses that are readily calculable, such as lost wages and out-of-pocket expenses, such as for past and future therapy, medication, and mileage for doctor’s appointments.
By contrast, non-pecuniary damages cannot be arithmetically calculated in the same degree as pecuniary damages. Instead, non-pecuniary damages compensate you for intangible losses arising from physical and psychological pain and suffering, loss of amenities and/or expectations of life. These damages are difficult to calculate and are based on the extent of your physical, mental, and psychological injuries and the impact of those injuries on your life.
In some cases, punitive damages may be awarded. These damages are not designed to compensate you, but are meant to punish the assailant for his or her actions. However, an award for these damages is rare in Canada.
Other Forms of Recourse
In addition to the civil court, recourse for compensation in Ontario for a victim of sexual assault is the Criminal Injuries Compensation Board (CICB). This is a quasi-judicial adjudicative agency that awards financial compensation to victims of violent crimes that occurred in the province. Its mandate is to provide victims of violence the financial means to overcome some of the effects of their trauma and abuse.
In some cases, the dependents of a victim may also be eligible to file a claim for compensation from the CICB. However, strict time deadlines (within two years of the incident) and application procedures must be adhered to. An experienced sexual assault and injury lawyer can help you get information on how to file a claim with the CICB.
Statute of Limitations
There is also a time limit on how long you can wait to pursue a civil action against a perpetrator of sexual assault. The basic limit as mandated by the Ontario Limitations Act is two years, from the day on which the claim was discovered. However, there is a clause in the Act which provides that limitation period does not run in respect of a claim based on sexual assault during any time in which the person with the claim was incapable of commencing the proceeding because of their mental or psychological condition. Further, the limitation period will not be applied to minors.
Fortunately, the Ontario government has pledged to amend the statute of limitations in the province, to even further lessen restrictions on filing a lawsuit for sexual assault and give further protections. If it has been many years since the abuse in question, however, you should not wait any longer before taking action. Get legal advice as soon as possible to ensure that your claim for compensation is not extinguished by a limitation period.
Contact Paquette & Paquette for Legal Representation after a Sexual Assault
If you or a family member has been a victim of sexual assault, contact a sexual assault and injury lawyer in Sudbury and Val Caron. Edmond Paquette or Terry P. Waltenbury will handle the case effectively, with compassion, understanding, sensitivity, and discretion. Obtaining justice may help with the healing process and provide some closure for the matter to be able to move forward. Contact us today at 1-888-383-3751 in Sudbury or 1-877-767-6356 in Val Caron.