Sexual assault is a sensitive subject that can raise many questions, being one of the least reported crimes. We will demystify the different recourses available to victims and their loved ones.
Criminal recourse
Sexual assault is a crime under the Criminal Code. Thus, a victim of sexual assault can file a complaint at any time with the competent authorities. However, it is the Director of Criminal and Penal Prosecutions (DPCP) (or the “Crown”) who decides whether criminal charges are ultimately laid, all in light of the evidence available following the investigation. In this case, it will be the Crown that will lead the prosecution, with the victim acting only as a witness.
The Crown’s objective is not only to punish the aggressor for the actions committed, but also to deter the repetition of wrongdoing in the future and to protect the public. Indeed, the purpose of criminal sentencing is largely to denounce delinquent behaviour in our society and to deter anyone from repeating it. A person convicted of criminal sexual assault can receive a prison sentence.
Burden of proof
However, this type of reprimand requires a very high burden of proof. In fact, in order to convict a person of a criminal offence, it is necessary to prove his or her guilt “beyond a reasonable doubt”. The need to meet such a burden is rooted in the presumption of innocence , which is of paramount importance in our legal system in order to ensure that a person is not unjustly convicted.
Moreover, a verdict of not guilty does not mean that the events did not occur or that the judge does not believe the victim. It is simply that a reasonable doubt remains and requires the judge to acquit the accused. It is important to note that this reasonable doubt is a concept specific to the legal field and does not have the common sense that we use every day. In particular, it does not require absolute certainty.
However, it is always possible for the victim to opt for the civil route, which requires only proof on a balance of probabilities.
Civil recourse
In addition to denouncing the aggressor in criminal proceedings, it is possible to initiate civil proceedings against him. Since the objective of the two regimes is not the same, it is possible to combine these two remedies, regardless of the decision rendered by the criminal judge, if any. These are two independent and separate remedies.
Indeed, even if the alleged actions do not lead to a criminal conviction, it is possible to claim compensation from the accused for the moral, psychological and physical damages suffered. For example, the Court has already recognized the right of a victim to obtain monetary compensation for four episodes of sexual abuse over an eight-year period, without a criminal conviction.
However, since the burden of proof is much higher in a criminal trial, a guilty verdict could positively influence the civil trial, without necessarily binding the judge. For example, in X v. Desjardins, the judge took into consideration that the defendant had been sentenced to 18 months in prison in awarding compensation to the victim.
The compensation objective
The objective of the civil action is compensation, that is, to obtain a sum of money as compensation for the damages suffered. Unlike a criminal remedy, the victim is part of the litigation and actively participates as a plaintiff and not just as a witness.
In addition, it is easier to prove the guilt of the assailant in a civil trial, since proof on a balance of probabilities is much less weighty than proof beyond a reasonable doubt. Indeed, all that is necessary is to convince the judge that there is more than a 50% probability that the defendant is responsible for the alleged damage.
For example, the Tribunal awarded a victim of sexual assault by her uncle compensation, despite a failing memory, some contradictions in her testimony and the defendant’s refusal to admit the facts. In this case, the victim could no longer sleep, was experiencing anxiety and had little trust in the people around him following the events in dispute. Her uncle made her feel like a person who did not deserve to be believed and threatened to accuse her father if she denounced the acts committed. This has affected her mental health, self-esteem and interpersonal relationships, particularly with people in authority. All of the disorders mentioned gave the victim the right to obtain compensation in moral and exemplary damages.
The judge recalled that victims of sexual assault suffer not only physical harm, but also emotional and psychological harm.
In another decision, the Court awarded compensation to a victim of sexual assault who had self-harmed and who was forced to take heavy medication to control her anxiety, depression, concentration problems and insomnia.
In cases of abuse of authority and trust, feelings of shame and guilt are usually retained as well as all the resulting psychological sequelae. The development of dependence, anxiety, mistrust or difficulty performing certain daily tasks are also factors taken into account by the judge in his decision.
In more complex cases, the production of a medical report is often essential to enable the judge to fully assess the after-effects retained by the victim and to ensure compensation that is fully commensurate with the damage suffered.
In addition, it is also possible to claim compensation for any lost wages caused by an absence from work related to sexual assault as well as, if applicable, reimbursement of therapy costs, medication, etc.
It should also be noted that a victim of sexual assault can, in addition to civil and criminal recourse, file a claim for compensation with the IVAC.
Prescription
Article 2926.1 of the Civil Code of Québec states that any harm resulting from sexual violence is not subject to a statute of limitations. Indeed, the passage of time alone cannot put an end to the possibility of initiating civil proceedings against an aggressor. A victim can bring a civil action for compensation for the damage resulting from a sexual assault at any time, even several years after the events occurred.
If you have been a victim of sexual assault, do not hesitate to contact us for more advice adapted to your situation.