Historic Sexual Abuse

In personal injury cases, we often speak about loss - loss of ability, loss of enjoyment of life, loss of income, loss of time, and even loss of life. But there is one type of personal injury case where there is a unique kind of loss that is acutely felt by victims.

When a person suffers from historic sexual abuse or historic sexual assault, they lose their bodily autonomy. The sexual violence they experience may cause physical injuries, psychological and emotional trauma, and/or quantifiable losses due to the effects of the damage to their lives. Such a dehumanizing act brings about a sense of degradation and humiliation that sets this kind of personal injury apart from any other.

If you or a loved one has experienced historical sexual abuse or a historical sexual assault, you are not alone. Statistics suggest one in four women and one in 10 men will experience some form of sexual abuse or assault in their lives. Stigma surrounding sexual abuse, fear of reprisal by the abuser, and the potential to feel re-traumatized when recounting the experience, mean only a very small percentage of assaults (about six percent) are actually reported to the police.

It often takes time for victims of sexual abuse and sexual assault to come forward with their stories. For many victims, the actions occurred during their childhood or youth, perhaps at the hands of a person who had control or power over them. For other victims, even if the assault occurred in adulthood, they may have needed years to process their trauma. Fortunately, there are are no statutes of limitation for criminal or civil cases involving sexual abuse or sexual assault. Therefore, if you are a historic sexual abuse survivor or sexual assault survivor, you have not lost your right to justice with the passage of time.

Sexual abuse and assault survivors have many options in their quest for justice and their desire to obtain a sense of closure from these violent acts; involving the police is only one possible path. Gluckstein Personal Injury Lawyers’ sexual abuse and assault legal team can help you and your loved ones as you recover from these terrible experiences.

Sexual abuse and sexual assault in Canada.

Defining the terms.

Sexual assault is any form of non-consensual sexual contact. In Canada, this term is broadly defined as including all unwanted sexual activity, ranging from kissing, grabbing and fondling to rape.

The notion of consent is key to sexual assault. Silence or inaction/passivity on the part of a person during a sexual encounter does not confirm that consent has been given. Rather, a person must actively affirm and communicate their consent through words or actions for the sexual contact to be legal.

The Canadian Criminal Code outlines circumstances and situations when consent is deemed to be absent or when consent cannot be given. The law also rejects the notion that a person can mistakenly believe there was consent, if their belief was based on their own:

• Intoxication.
• Recklessness.
• Or negligence (ignoring communication indicating a lack of consent or failing to properly confirm consent).

Definitionally, sexual abuse occurs when an adult, adolescent or older child uses a younger child or youth for his or her own sexual pleasure. The sexual pleasure can be derived from both touching or sexually explicit activities in the absence of touching. These activities include, for example, a child or youth being forced to:

• Watch sexual acts.
• Look at sexual body parts.
• Look at explicit videos or pictures.
• To be watched in a sexual way.

When a historic case of sexual abuse or assault comes before the court, lawyers must have a thorough understanding of the letter of the law at the time the sexual violence occurred.

By the numbers.

Sexual abuse and sexual assaults are much more common than some people may believe. The work of the #MeToo movement and the publicity from high profile cases of sexual abuse has started to make it very clear: even if you have not been sexually assaulted or abused, you more than likely know someone close to you that has been. Here are some of the statistics:

• Four out of five sexual assault incidents occur in the home and eighty per cent of assailants are friends or family of the victim.
• Three out of five sexual abuse/assault victims are under the age of 17.
• Fifteen percent of sexual assault victims are boys under the age of 16.
• Seventeen percent of girls under the age of 16 have experienced some form of incest.
• Four out of five victims are women.
• More than one in ten women sustain physical injuries from their assault.
• Women with disabilities and Indigenous women are disproportionately likely to be victims of sexual assaults. Eighty-three percent of women with disabilities, and fifty-seven percent of Indigenous women suffer assaults.
• False reports account for only two to four percent of all sexual assault reporting.
• Weapons are involved in twenty percent of sexual assaults.

If you’ve been sexually abused or assaulted.

During and after sexual abuse or a sexual assault, you may experience many feelings and emotions. These traumatic events can make you feel numb, angry, sad, ashamed, and despairing. Often victims may experience a type of disassociation as they try to protect themselves from being overwhelmed by this violence. In some cases of historic sexual abuse and assaults, victims have repressed painful memories for years, only to have them return when triggered by something.

Deciding what to do, if anything, following this abuse or assault is an extremely personal choice that should always be respected. A survivor – particularly one who is a child or someone in a vulnerable position – may not want to do anything for fear of reprisal. The fact that most victims of these crimes know their assailant and may have an existing relationship with them can make reporting or revealing this abuse much more difficult.

You should know that there are good people out there who want to support you and affirm your right to choose what actions you want to take. Crisis hotlines can be useful if you want or need to speak to people who do not know your identity and/or who will not be bound to disclose this information to authorities unless there appears to be an imminent threat to your life. Some professionals who provide services where there is an expectation of confidentiality, such as counsellors, have an obligation to disclose information under certain circumstances.

If you choose to speak with these individuals and you are concerned about disclosure rules, ask them about the circumstances in which they are required to report before revealing personal information.

Criminal and/or civil cases for historic sexual abuse or sexual assaults.

In Canada, there is no statute of limitations for reporting criminal sexual abuse or sexual assaults. Ontario has also amended its Limitations Act to remove all limitation periods for civil claims based on sexual abuse/assaults. The absence of limitations recognizes that people who were abused as minors may not come forward to report until many years later, and also acknowledges that the emotional and mental distress caused by an assault at any age can necessitate time to process the events.

In a criminal case, the person charged is considered to have committed an offence not only against an individual, but also against the collective sense of security of people living in this country. To be found guilty of a criminal offence, the Crown must prove its case beyond a reasonable doubt – a higher burden of proof than in a civil case.

In a civil case, a person (the plaintiff) brings a lawsuit against another party (the defendant) to recover damages for some form of harm inflicted. The damages can include compensation for the emotional, psychological, and/or physical trauma, as well as for income loss and past and future treatment costs. Civil claims can also seek aggravated and exemplary (punitive) damages. In civil cases, the burden of proof that must be met by the plaintiff is lower than what is required of the Crown for a criminal case. The claim must be established on a “balance of probabilities” (not “beyond a reasonable doubt”) - in other words, it is more likely than not that the defendant inflicted harm against the plaintiff.

Criminal cases and civil cases are independent of each other. However, according to Ontario’s Victims’ Bill of Rights, a person convicted of a crime of violence (including sexual assault) is liable for damages to the victim of the crime. A criminal conviction essentially means that the perpetrator will have to compensate the victim for their wrongdoing. The only question is how much compensation is owed. The absence of a criminal conviction (either through acquittal or when no charges are laid) does not, however, mean that a civil case cannot proceed or be successful.

The higher burden of proof in criminal cases can make trying historic sexual abuse cases more complex and challenging. With the passage of time, objectively verifiable evidence of an assault may be entirely absent. However, knowledgeable, experienced and skilled sexual abuse and sexual assault lawyers can still build strong civil cases because of the lower standard of proof compared to criminal matters. Moreover, if other victims of the same perpetrator of historic sexual abuse or assault become known, descriptions of the abuse from multiple people which reveal a pattern of behaviour can serve as powerful evidence against the perpetrator.

We Can Help

We can never truly know how hard it must be for the victim of historic sexual abuse or assault to take the first step and make a call to a lawyer. But we want you to know that we will be with you from beginning to end. Although each historic sexual assault or historic sexual abuse claim is different, survivors who contact us are united in wanting to receive a sense that justice has been done.

Whether that justice takes the form of an award for damages, a formal apology, disciplinary actions by professional accrediting agencies, and/or the knowledge that they have been heard, you can trust Gluckstein Personal Injury Lawyers’ sexual abuse and assault legal team to do everything we can to help.

As one of the country’s top personal injury law firms, we have assembled a strong complement of lawyers who have extensive experience in the field of historic sexual assault cases and historical sexual abuse cases. Renowned for our commitment to compassionate full-circle client care, you can rest assured that you will be treated with the respect, dignity and kindness you deserve.

To learn more about your rights and options when you’ve been the victim of a historic sexual assault, contact us today for a no obligation, free consultation. Let us help you find a sense of closure.