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Sexual Assault and Abuse FAQs

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Understanding Your Rights – Sexual Assault and Abuse Law

Defining Sexual Assault or Abuse

Sexual Assault or Abuse Definition: An assault committed in circumstances of a sexual nature such that the sexual integrity of the survivor is violated.

Sexual assault, abuse, or sexual violence are broad terms, both legally and culturally, used to describe a wide variety of unwanted physical or emotional violence against an individual through sexual means or by targeting sexuality. This could range from being survivorized by sexually suggestive words or threats and the unwanted sharing of sexually explicit photography to touching without consent and rape.  Under Canadian law there are different kinds and degrees of sexual abuse and assault, not all require actual physical touching. Sexual assault is defined simply as any sexual contact or behavior that occurs without explicit consent of the survivor.

There are other sexual crimes, aside from physical or emotional assault that someone may be convicted for, including but not limited to, sexual exploitation, invitation for sexual touching, child pornography, voyeurism, and other offenses.

Understanding Sexual Assault and the Law

What is Sexual Assault?

Canada has a broad definition of sexual assault. Sexual assault is defined simply as any sexual contact or behavior that occurs without explicit consent of the survivor. It includes all unwanted sexual activity, from unwanted sexual touching or grabbing, kissing, to forcible vaginal or anal rape.

Criminal Definition of Sexual Assault

In Canada’s criminal code sexual assault is a type or classification of assault in general and carries with it a specific punishment. The criminal code says the following:

265. (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

There are other sexual crimes, aside from physical or emotional assault that someone may be convicted and/or liable for, including but not limited to, sexual exploitation, invitation for sexual touching, child pornography, voyeurism, and other offenses.

What Should I do if I’m a Survivor of Sexual Assault or Abuse or Know Someone that is a Survivor?

Both men and women may be survivors of sexual assault or abuse. Often times, the most emotionally painful aspect of sexual abuse is the personal betrayal of a trusted figure. If you or someone you know has suffered, or continues to suffer sexual assault, or abuse of any kind, your first consideration and ours is the survivor’s physical and emotional well-being.

The first priority should be finding safe haven from the situation. Whether seeking refuge with family or friends, or utilizing the help of a domestic violence organization, the survivor needs a safe environment. If you or a loved one is in immediate danger please consider these resources:

Barbra Schlifer Commemorative Clinic – a free counseling, legal, interpretation, information and referral service for female-identified survivors of violence in Toronto. The Clinic may assist in safety planning if you are at risk.

The London Abused Women’s Centre – offers trauma-informed counseling, advocacy and support in a safe, non-crisis, non-residential setting to women and girls over the age of 12 who have been abused by an intimate partner, sexually harassed, and/or prostituted or sex trafficked.

Ontario Victim Services – works to ensure that victims of crime are treated with respect and receive the information and services they need.

Upon suffering sexual assault or abuse, there are a number of steps survivors should take as soon as possible:

  • If the assault or abuse happened at home or by a family member, or you feel that there is a significant risk of repeated assault or abuse, get to a safe place as soon as possible, and consider reporting it to the police.
  • If the assault or abuse happened at your workplace, report it to a superior or the Human Resources department, and document that you have reported it and what happened.
  • Seek out therapy or counseling from a professional skilled in dealing with trauma.
  • Gather as much information as you can and document what happened (who, what, when, where, how often, any witnesses, etc.)
  • If you required medical attention, gather all medical documentation regarding any injuries caused, including all medical bills and related expenses.
  • Document how the lives of yourself and/or your family have been impacted by the sexual assault or abuse. In addition to the emotional and psychological impacts, this includes any additional expenses, no matter how small (e.g. parking when you see your therapist).

These steps are not prerequisites to contacting a lawyer.

Do I need a lawyer if I am a survivor of a sexual assault or abuse?

Sexual assault or abuse is not merely a criminal matter. Sexual assault and abuse causes long-lasting physical and emotional damage. Your quality of life suffers, your education and work are compromised, your relationships are negatively impacted, and you’re likely to need long-term counseling and therapy to heal. As such, survivors are entitled to compensation.

Where this compensation comes from depends a great deal on the circumstances of the assault or abuse. If it was within your family, or committed by an individual who did not have authority conferred by an employer or organization, survivors will likely need to make a claim against their perpetrators directly. If your perpetrator was an authority figure in the workplace, your faith community, or another institution, the organization that placed them in a position to assault or abuse you may also be held liable.

Gaining this compensation can be difficult. Unlike cases of “accidental” personal injury, sexual abuse or assault cases require you to confront those who have caused you harm–and who may seek to discredit you (again) during the course of legal proceedings.

This is why it is vital for survivors of sexual assault and abuse to have a strong legal advocate–someone who can represent you, advocate for you, listen to you, and ensure your rights are protected. The best way to hold the responsible party accountable and gain the compensation you’re entitled to is to contact an experienced lawyer as soon as possible.

A well-qualified sexual assault, abuse, and personal injury lawyer can determine where you need to go for compensation, provide the representation and protection you need throughout the process, ensure that a settlement offer is reasonable and fair, and if it becomes necessary, represent you in court. Contact us for your free consultation.

What is the Difference Between Criminal and Civil Sexual Assault and Abuse Claims?

The primary difference between criminal and civil sex assault and abuse cases is the different burdens of proof. Criminal charges of any kind must be proven “beyond a reasonable doubt”, creating a much higher burden of proof, including more substantial evidence. In civil cases, the standard of proof is a “balance of probabilities”, or more simply that the abuse or assault occurrence was more likely than not.

A criminal conviction is not required to file a civil suit against the perpetrator, or responsible third parties, of sexual abuse or assault.

Further, unlike in the criminal context, in a civil sexual assault or abuse claim the survivor can pursue financial compensation for economic and emotional losses, also referred to as “damages”, from the perpetrator or third party, such as a company or organization whose negligence may have contributed to the assault or abuse.

Lastly, unlike criminal proceedings, where a survivor is simply a witness for the crown’s case and is not considered a party to the process, in a civil case the survivor is a direct party to the proceedings, and has a great deal of control over how the case proceeds.

For more information on the differences between criminal and civil proceedings, please read these blogs by our dedicated sexual abuse lawyers:

or visit our Resources section.

How Do You Know If You Have A Sexual Assault or Abuse Civil Claim?

If you or a loved one was sexually assaulted or abused you can seek damages and compensation for that abuse from the actual perpetrator or a third party deemed responsible for the abuse. There are many scenarios in which third parties can and should be held accountable for the abuse suffered if it was a result of their negligence. Negligence might include the act of doing nothing even though the abuse was known, creating the conditions for that abuse, aiding in it, or simply allowing it to happen by not providing the proper supervision or care at the time of the assault or abuse.

For more information on various kinds of liability for sexual assault or abuse, please read these blogs by our dedicated sexual abuse lawyers:

or visit our Resources section.

Does the Abuser Need to Be Charged or Convicted of a Crime?

For some survivors, involving the authorities, filing a police report, and helping the courts convict the abuser of a crime can be an empowering and cathartic process. For others it is not the right choice. The challenge in a criminal sexual assault or abuse case for the survivor is the lack of control over the process. This doesn’t mean you shouldn’t pursue reporting the assault to the police. Reporting sexual assault and abuse is important, but the most important thing, and our first priority at Lerners, is the survivor’s physical and emotional well-being.

Remember, if you’re the survivor of sexual assault or abuse you can bring it to the attention of police at any time. There is no time limit in Canada for reporting crimes.

In Ontario, there is no time limit on bringing a civil action with respect to sexual assault or abuse. While historical claims may present various evidentiary challenges, this should not prevent you from seeking advice on whether or not you have a claim. However, limitation periods differ by province, and if you are not in Ontario, you should seek an opinion from a lawyer qualified in your jurisdiction.

It is important to know that you do not have to file a police report, nor does your abuser need to be convicted of a crime for you to file a sexual assault or abuse claim in civil court.

For more information on the differences between criminal and civil proceedings, please read these blogs by our dedicated sexual abuse lawyers.

Read more here:

Have I run out of time to sue my perpetrator?

As of today, there are no time limits in Ontario for suing for sexual assault or abuse, domestic violence or child abuse.

On March 9, 2016, the Ontario Limitations Act was amended to remove all limitation periods for civil claims “based on sexual assault”. There is also no limitation periods for cases “based on any other misconduct of a sexual nature if, at the time of the misconduct, the person with the claim was a minor or if there is an authority, dependence or trust relationship.”

What are the Steps in a Civil Lawsuit?

Commencing a lawsuit can be overwhelming and very confusing for those unfamiliar with the law. At Lerners, we take the time to explain each step of the legal process, and present all options to our clients. Below is an outline of the steps you can anticipate if you start a lawsuit. Each sexual assault and abuse case is unique, and therefore not all cases will require every step. Claims before the Human Rights Tribunal, or in other forums, will have some overlap with the steps below.

  1. Investigation: Gathering the necessary information and documents in a sexual assault and abuse case can be very time consuming. We will need to gather as much information as we can and document what happened to you (who, what, when, where, how often, any witnesses, etc). If you required medical attention or attended therapy, we will need to gather all medical documentation regarding any injuries caused, including all medical bills and related expenses.
  2. Filing a Statement of Claim: Once we have the necessary information about the case, we issue the Statement of Claim. This is the formal document that commences the lawsuit.
  3. Exchanging Documents: Once we have received the defendant(s) Statement(s) of Defense, we each exchange records and documents with the opposing side. Each party to the action is required to disclose all relevant documentation to the other side.
  4. Examinations for Discovery: This is an important procedural step in the litigation process in Ontario. This process is an opportunity for both parties to the lawsuit to find out what the other party’s claim or defense is and to gain all of the facts and evidence. This allows the parties to gather necessary information and assess the strengths and weakness of the opposing side’s case. At this stage, you must swear or affirm to tell the truth and the lawyer for the defendant has the opportunity to ask you questions about what happened and how it has affected your life. While this stage is often a very difficult process for our clients, it is also your opportunity to tell your side of the story.
  5. Expert Assessments: Often times, we will arrange to have an expert complete a psychological assessment to determine how the sexual assault or abuse has impacted your life.
  6. Mediation: While a lawsuit can settle prior to trial at any point in the litigation process, one of the best opportunities to settle a case is at the mediation. Mediation is an alternative dispute resolution process where the parties meet with a mediator whose goal is to try to negotiate a settlement.
  7. Pre-trial: In the event the mediation has failed, you must attend a pre-trial conference before a judge. The judge will listen to each side, try to encourage settlement and may assist in identifying or narrowing the actual issues for trial.
  8. Trial: Ultimately, if all attempts at settlement have failed, the case will proceed to trial. Should the case proceed to trial, you will be required to give evidence, and will be cross-examined by the defendant’s lawyer on that evidence. Other experts and witnesses will also give evidence. It is up to us, as your lawyers, to argue your case before a judge or jury who make the final decision on liability and damages.

How Long Does a Civil Lawsuit Take?

Each case is different, and because cases can settle at multiple times, it is difficult to predict. Generally, however, most cases take between two and five years. Some cases finish in less time and some last much longer.

What Can Suing Your Sexual Assault or Abuse Offender Accomplish?

There are two primary ways in which the survivors of sexual assault or abuse can seek legal remedies: through criminal or civil lawsuits, or both. Choosing to sue your perpetrator can be a painful and often overwhelming decision to make. However, for some survivors, filing a lawsuit can help them regain a feeling of control over their lives.

It is your right to seek remedy for damages and suffering caused by sexual assault or abuse. Those damages may include:

  • Compensation for general pain and suffering;
  • Compensation for any past or future monetary or economic loss, including but not limited to potentially reduced income;
  • Compensation for past and future medical or psychological care, including medication; and
  • Compensation for past and future loss of interdependency.

For more information on suing your sexual assault or abuse offender, please read these blogs by our dedicated sexual assault and abuse lawyers:

When Should You Consult a Sexual Assault or Abuse Lawyer?

The short answer is whenever you are ready. We encourage all survivors of sexual abuse or assault to seek the help of a law enforcement, medical, or legal profession as soon as possible.

However, if you or your loved one is not quite ready, you still may want to consult a lawyer. If you contact one of our sexual assault and abuse lawyers know that our consultations are free and completely confidential whether we take your case or not.

While we are not criminal defense lawyers, we can offer guidance and support to our clients involved with filing criminal charges against their abuser. Our focus, however, is exclusively helping survivors of sexual assault or abuse seek compensation and damages through civil lawsuits.

Know that you are not alone and that a Lerners Sexual Assault and Abuse lawyer is here to help you navigate and understand your rights and the path forward from both a civil and criminal perspective. You can also consult with a lawyer under the Independent Legal Advice program for survivors of sexual assault offered by the government of Ontario.

Resources

The trauma of a sexual assault or abuse, whether for adults, children, or even family members of the survivor, can leave all parties feeling isolated and hopeless. The Lerners Sexual Assault and Abuse Team wants every survivor and their family to have access to all the resources they need to begin down a path of healing.

Further Information

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