10 May Why Launch a Sexual Abuse or Sexual Assault Lawsuit?
Written By: Simona Jellinek, Counsel
CONTENT WARNING: This blog discusses some of the most sensitive topics in our society today, including sexual assault and abuse. We understand that these realities may be difficult for many people to discuss. We encourage you to care for your safety and well-being. If you ever feel unsafe, please call 911.
“What should I do? What would you do?” are questions survivors of sexual abuse often ask when they first consider coming forward.
The healing process after experiencing sexual violence will look different for each individual. Many survivors need a lot of time to work through this trauma on their own or with the help of counsellors and other support before deciding to do anything further. Some people may want to pursue criminal charges against their abuser by contacting the police. Others may choose to launch complaints with disciplinary bodies if their abuser belongs to a profession where their continued employment or practice may put others at risk. Still, others may only want to make their own peace with what happened and not pursue any further actions against their abuser.
Any and all of these options are valid. A survivor’s journey to healing is very personal to them, and their unique circumstances will play a role in what they choose to do and when they choose to do it. Whatever their choice is, it is the right choice for them, no matter what others think they should do.
In some cases, launching a civil lawsuit against an abuser is an option for a survivor. When considering whether this is the right choice for you, there are some important things to know. In this blog post, the third in a series on “The Faces of Sexual Assault,” I will examine why a civil lawsuit can be a huge step in the healing journey for many survivors.
The Scales of Justice
It’s estimated that only about one in every 20 sexual assaults is reported to the police. Police will investigate these allegations and determine whether criminal charges can be laid in consultation with Crown prosecutors. Charges will be laid only in a handful of cases, and less than half of cases with criminal charges result in a guilty verdict.
Notwithstanding that statistics suggest false reports of sexual assault are exceedingly rare, less than half of these reported crimes end with an abuser being found guilty. This is a sad reality that survivors face when entering the criminal justice system.
It is extremely important to remember that being found “not guilty” is not the same as being “innocent” of the alleged crime. The burden of proof for a guilty verdict in criminal cases is high. A defendant must be found to have committed the crime beyond a reasonable doubt. Often, the proverbial ‘got off on a technicality’ is precisely why an otherwise guilty person is found not guilty. In contrast, the civil standard is only a balance of probability (50+1). There are times when notwithstanding a not guilty verdict in the civil trial, the same fact situation will result in a defendant being found civilly liable.
A further powerful tool in the civil justice system is that the defendant can be forced to give testimony under oath both before and at the trial. In a criminal case, the accused can choose not to undergo cross-examination. This cannot happen in a civil matter, and the defendant is put under rigorous cross-examination to test their credibility.
Moreover, unlike criminal cases, most civil cases settle before a trial. Negotiated or mediated settlements are the norm for a civil lawsuit.
Finally, the survivor is only treated as a witness to the crime in a criminal case. If everything goes well, the perpetrator is convicted. But, the sentence is often minimal, and the victory can seem hollow to the survivor because they were put on the stand and walked away without any true change in their lives. However, in a civil case, a successful survivor walks away with some compensation to help rebuild their lives by being able to afford therapies and better provide for themselves and their families. While money is rarely the reason survivors begin lawsuits, it is an actual and direct benefit to the survivor at the perpetrator’s expense. No amount of money will ever undo the real damage of sexual abuse, but it will provide some amount of help.
A Solid Symbol
Beyond the greater odds of a favourable result in a civil case, many survivors tell us that launching a civil action in itself brings them a sense of control over their life that an abuser had taken from them. This is such a powerful part of the healing journey that most survivors need an outside symbol to feel that they have regained control.
Sexual abuse and sexual assault are crimes of power and control. When an abuser acts against another person without their consent, the unwanted sexual contact violates that person’s bodily autonomy.
Survivors often find that when they decide to start a sexual abuse lawsuit, it is a real step towards the survivor being in control of their own life and exercising control over a person or entity that had robbed them of that power. In a civil case, the survivor has the power to proceed, negotiate, settle or go to trial. The abuser does not have the same amount of power.
As I noted in the first blog in this series, sexual abuse and sexual assaults are secret crimes that are often kept secret because no one wants to talk about them. For some survivors, as painful as it may be to talk about what happened to them, shining a light on an abuser’s shameful actions takes away any power the abuser may still feel they have over them.
Someone In My Corner
Since most sexual violence occurs in secret, survivors are often physically alone when they experience it. In the aftermath, many feel alone in other ways.
Survivors may not reveal what happened to them to anyone for years after their trauma. In the interim, they are alone with their thoughts. They do not have someone else to support them through the difficult times because no one other than their abuser knows what happened.
Even if they reveal what happened, they may not receive the support or are often not believed. For far too long, children who have spoken up about their abuse were silenced by the people they told. They may not have been believed, the adult they told may have shamed them, or, if the abuser was a family member or close to the person they told, the adult might have chosen to protect the abuser rather than them.
Adults who disclosed child sexual abuse or sexual assaults might have found similarly dismissive reactions – especially if they are members of marginalized groups. Their claims may not have been acted on or believed based on discriminatory attitudes or societal myths.
I can’t tell you how many times I had heard from survivors that it was the first time they felt someone was on their side when we began representing them. That is both humbling and terribly sad. No one should have to feel so alone after experiencing something so damaging.
Survivors lead, we follow, support and advocate
A sexual abuse or sexual assault civil action is not for everyone. When prospective clients contact us, we explain all of the options they have and support them so they can make an informed decision about what is best for them. We don’t tell survivors what to do; we take direction from them, not the other way around.
If they choose to proceed with a civil suit and ask us to represent them, we do our best to make them as comfortable as possible with the process, knowing that talking about this abuse and answering questions from defence counsel can be incredibly difficult.
Part of being an effective supporter of survivors is building a relationship with them based on trust. Yet, trust is a big step when someone has experienced this kind of violation. Sometimes even if they can’t get to the point of complete trust, we work to help them trust us enough to support them. We do so by listening and never judging. We will always take as much time as needed to answer questions and explain our advice. We are in your corner.
In the fourth instalment of this blog series, I write about why working to gain a survivor’s trust and representing them at one of the most important points of their lives inspires my passion for this work.
Sexual Abuse Lawyers
If you or someone you love has been sexually abused and don’t know where to turn for help, please contact Jellinek Ellis Gluckstein, and we will be here to listen.