You can seek compensation and justice for sexual assault in our civil courts 

It is well documented that sexual assault charges are under prosecuted. Many victims, for personal or even career-related reasons, choose not to come forward, and when they do bring the information to the police, the charges often fail for procedural reasons or due to standards of proof required for criminal charges. In criminal cases, the burden of proof is high, as criminal courts require the charge to be proved “beyond a reasonable doubt”— a threshold that is very often insurmountable.  

Yet, sexual assault claims do not need to proceed solely through the criminal system. In Canada, victims are able to bring civil claims, even if the charges are still being disputed in criminal court, and even if the criminal charges are dismissed against your victimizer. Proceeding separately in a civil action has many benefits, as there is a lower burden of proof, and if successful, you will be entitled to monetary damages and, presumptively, a portion of your court costs.  

In the civil arena, courts recognize the claim of “sexual battery” for what most would consider to being sexual assault. Battery is the legal term for harmful or offensive, and non-consensual physical contact. In the case of sexual battery, the contact must have been sexual in nature.  

Unlike in criminal trials, your abuser may have to prove that you gave consent 

After acknowledging that some physical contact occurred, the onus or legal requirement to prove their perspective switches to the abuser. In short, if there is an admission of sexual contact then it will be up to the other party to prove that you consented to it. This is more humane and fairer than the standards in criminal trials, and the reason that this lower standard of proof and reverse onus can be applied is that a civil court will not order jail time or result in your abuser having a criminal conviction. It is exactly because your abuser’s liberty is not at stake that you are able to extract these legal advantages in a civil action.  This difference cannot be understated as the burden is of proof in criminal court is almost always unfavorable from the viewpoint of the person who was wronged.  

Successful civil claims entitle you to financial compensation  

A successful civil claim for sexual battery can result in a sizable financial judgment in the favor of the victim. Any judgment of Alberta’s Court of Queen’s Bench resulting from battery is enforceable against the assailant for a period of 10 years and can be registered against property such as a car or house. This judgment can be extended beyond 10 years with an application to the Court if the money is not fully paid. Your judgment can even be used to claim portions of your abuser’s wages or funds held in their bank accounts. 

Further still, a judgment of this kind will survive a bankruptcy claim in the event your abuser declares bankruptcy. Bankruptcy laws are aimed at protecting those honest but unfortunate people who run into financial trouble. Bankruptcy courts do not protect judgment debtors from their own harmful or offensive intentional conduct like sexual battery.   

Civil cases require you to hire your own litigation lawyer 

You may think that it is too financially costly to proceed with a civil claim. Each potential plaintiff’s situation is unique and there are multiple financial considerations besides the direct cost of legal fees, but the final costs may not be as high as you fear. In the criminal context, the case against your abuser would be prosecuted by a government agency called the “Crown Prosecution Service”, which is paid for by the government and results in no financial cost to the victim. This process is also largely out of your control and may proceed in ways you are not comfortable or happy with. While there are no legal fees to the victim in a criminal matter, a victim will not receive financial remedies if the prosecution is successful, and therefore, if you have a sexual battery claim, you should also consider bringing an action in a civil court. 

In civil proceedings, each party, you and your abuser, will pay their own lawyer separately. In civil trials, the winning party is often entitled to recover an amount for their legal fees from the unsuccessful side. As each side is responsible for proving their own claims in civil court, you will need to retain your own lawyer as the responsibility for proving sexual battery is solely your obligation to meet.  

Legal fees vary and pursuing your claim could be less costly than you think 

There is considerable flexibility to legal fee structures for civil cases, as cases can be paid for by the hour, on an agreed-upon fee schedule, or even on a contingency basis, where the lawyer agrees to work for a portion of the funds received, if the claim is successful. However, in order to hire a lawyer on a contingency fee arrangement, your case must be obviously winnable, and the adverse party must have some measure of wealth. Most lawyers will only offer contingency fee arrangements in cases where the adverse party has already been criminally convicted of sexual assault.

The only issues left when a criminal conviction has been entered would be how much compensation you are entitled to, which involves the courts assessing how much damage you suffered, and the financial costs suffered related to the wrongdoing. Particularly, in assessing the damages you have suffered, the courts will order the reimbursement of expenses such as therapy costs, lost wages, medical costs, and other out of pocket expenses. In addition to these damages, the court is likely to award you some additional money towards your legal fees.  

In a civil claim you may be able to avoid speaking in court 

One of the benefits of suing your sexual abuser in civil court is that much of the lawsuit can be done without you being present in court. Nearly all steps in a civil action are conducted by affidavit evidence and spoken to by the lawyers for each side. An affidavit is a written document, usually with attachments called “exhibits”, in which each side swears to the truth of their statements within. The court can and will rely on these statements as the “facts of the case” up to and sometimes during trial. This means that with the assistance of a skilled lawyer you may be able to win your sexual battery lawsuit without ever having to take the stand or being cross-examined in court.  

In the event that your attacker has been criminally convicted, it is quite likely you may not need to go in person to win your case. Once a criminal finding of liability has been rendered by the courts you will not need to prove that you were assaulted a second time. Your civil claim will start from that point and the main issue that will need to be decided by the courts is what compensation you are entitled to. And, even if you are required to attend for some steps of the lawsuit in person, many steps to the lawsuit can be done in writing rather than in person.  

Baker Law Firm’s lawyers are experienced and will guide and direct your claim 

Even though the case may be easier to prove than in the criminal context, there is no question that the process is still difficult and emotionally charged due to the highly personal nature of the facts. While a civil claim can be advanced in a more favourable way than a criminal prosecution, no one will tell you it will be easy or without emotion. Empathic and non-judgmental legal counsel can help ensure that you can meet the legal requirements to prove each element of a sexual battery claim, push back against any defences raised by your abuser and ultimately help you claim greater damages.  

At Baker Law Firm, we have experience with civil sexual violence claims. Our lawyers are professional and candid and will treat you with both respect and empathy at all times. We can help you evaluate the merits of your claim in civil court and can be your advocates all the way through the process, shielding you from some of the worst elements of litigation, and explaining why the lawyer for the other side takes the steps and positions that they will. 

We understand that the survivors of sexual violence require a very high level of trust with their lawyers and that their case requires handling with the utmost of respect. If you wish to seek a privileged and confidential consultation on the possibility of suing civilly over instances of sexual violence, then contact Baker Law Firm and request to speak directly with one of our experienced lawyers.