A non-consensual sexual act (assault or abuse) violates more than a person’s physical security; it is an attack on their autonomy and an abuse of power and trust. The process of recovering from this trauma, therefore, often takes much longer than the time it takes for any physical harm sustained during the assault or abuse to heal. Bruising on a person’s skin will disappear much faster than a bruise on their very sense of self, their diminished capacity to trust, or the debilitating effects of post-traumatic stress.
Regaining autonomy and reestablishing control over their lives are powerful actions survivors can work towards as they repair the harm they have suffered. Survivors frequently express that they feel very much alone after experiencing sexual violence. But, there are many people and services ready and willing to stand with them and offer support as survivors choose their own path forward.
In this blog post, I outline the rights of survivors of sexual violence and explain some of the support they can access as they exercise those rights.
Consent must be clear, understood, and un-coerced.
You have the right to consent to any and all sexual activity and the right to withdraw that consent at any time during sexual activity.
Consent to engage in sexual activity must be given freely, established each time there is a sexual encounter, confirmed when other sexual acts are about to begin during a sexual encounter and can be withdrawn at any time. If there is any ambiguity about whether a person is giving consent, it should always be confirmed or reaffirmed.
There are also situations where consent cannot be given, even if a person appears to agree to sexual activity. For example, these could include situations where a person is (or feels) threatened, intimidated, manipulated, tricked, or unconscious, or asleep.
Consent is absent when:
- someone uses authority or perceived authority to compel another person to engage in sexual activity;
- someone uses physical force or threats of physical force;
- someone is intoxicated to the point where they do not have the capacity to consent; someone has an intellectual disability/mental health condition which prevents them from making an informed decision or fully understanding the possible results of sexual activity;
- someone is under the age of 16 (unless they consent to participate in sexual activity with someone close in age according to law and consent is otherwise freely obtained);
- someone is under the age of 18 and the other consenting party is in a position of trust, or authority or there is a dependency on that person, or if it is an exploitative activity (for example, pornography, sex work/prostitution).
The perpetrator of sexual abuse or a sexual assault, especially if they are known to the survivor, might try to convince them that natural bodily functions and reactions that may occur during sexual activity mean they must have liked what was happening or wanted this activity to continue and therefore provided consent. This is not true. Consent must be made clear through words and/or conduct prior to and during sexual activity. If consent is absent or if a person continues to make unwanted sexual contact after consent has been revoked, it is a form of sexual violence.
Timing is everything.
A survivor has the right to wait.
Unlike most other crimes and torts, there is no statutory limitation that prevents a survivor from seeking to press charges or launching a civil lawsuit after a certain period of time has passed from when the sexual assault or abuse occurred. Deciding if and/or when they will come forward is completely up to the survivor.
There are some advantages to reporting an assault or abuse soon after it occurs (for example preservation of physical evidence, memories of the event(s) may be clear, and the ability to request emergency funding from the Victim Quick Response Program (VQRP+). However, in many situations, there are factors that make coming forward immediately difficult or impossible (for example a survivor’s extremely young age or diminished capacity, abuse or assault by a person the survivor is dependent on, threats to a survivor’s immediate safety, or being in a state where they are physically, mentally or emotionally unable to participate as they would want).
Even if the sexual abuse or assault occurred years or decades ago, there are often ways for law enforcement and civil litigators to collect or establish enough evidence for a viable criminal charge and/or civil claim.
Choose your own path(s).
A survivor has the right to pursue justice in various ways and the right not to pursue the matter if they so choose.
There are many ways a survivor can seek to obtain a sense of justice in the courts and/or through public or private regulatory organizations. Some potential actions include:
- Reporting the assault or abuse to the police in the hopes they will lay criminal charges;
- Contacting a lawyer to explore making a civil claim for damages against the perpetrator or others whose intentional actions or negligence permitted the assault or abuse to occur;
- Filing a complaint through a professional or regulatory governing body if the perpetrator belongs to or is licensed under such a group (for example doctors, nurses, dentists, lawyers, teachers);
- Filing a human rights complaint if the incident(s) occurred in specific contexts outlined in Ontario’s Human Rights Code (for example housing, employment, or membership within a professional organization or trade union).
Of course, not all survivors will want or feel the need to pursue formal action to achieve a sense of closure and healing. A survivor may never opt to formally report the assault or abuse. They may choose to do nothing for the time being and reconsider their options at a later time. Or, they may decide that counselling, therapy, and/or self-care strategies are a better option for them. Each survivor’s circumstances are unique and choosing what path(s) to pursue (and in which order) will depend greatly on when they experienced sexual violence and their state of mind during their healing process. Generally, if a survivor wants to report the matter to the police or if charges have been laid and there is an open criminal case before the courts, I have found that it’s often advantageous to wait until the criminal case is completed before deciding whether to pursue the matter in civil court.
It is fundamentally important for a survivor to have the right to make their own choice about what they will or will not do. Telling a survivor what they should or should not do does nothing to support them as they attempt to regain a sense of control over their lives that sexual violence may have taken from them.
Stopping or changing course is always acceptable.
A survivor has the right to end their participation in a police investigation, criminal case, civil case, or regulatory complaints process at any time.
Many survivors tell us they achieve a sense of closure or feel empowered when they participate in formal actions against a perpetrator. Not only do these actions sometimes end in the perpetrator facing time in a correctional facility, paying damages to a survivor, and/or losing the ability to continue working in their profession, but they may also prevent other people from experiencing the type of harm a survivor faced.
Nevertheless, as much as sexual assault lawyers, the police, and courts work to help make these processes sensitive to a survivor’s needs, participating in formal actions can be difficult. A survivor will have to discuss a terrible and traumatic experience and the defendant’s representative may try to undermine a survivor’s version of events by looking for inconsistencies in their story or advancing an argument that consent was given.
As a lawyer who represents survivors, I do my utmost to help prepare them for the more challenging aspects of these processes and do my best to ensure they have access to support systems such as counselling services in case something that occurs during the formal action triggers them.
Often survivors are able to persevere throughout a formal action with the help of their legal advocate and other members of their support system (counsellors, friends, family). They may come to see their ability to overcome any challenges in this process as further evidence of their strength. But if a survivor ever feels that this process is too much to bear or no longer serving their needs, they always have a right to stop participating in it.
Knowing your rights means knowing your options.
When someone has sexually assaulted or abused you, their actions can make you feel that you have lost control. However, your choosing to heal and find a sense of closure over what happened will help you regain that sense of control. If there is any way we can help to support you on your journey, we would welcome a chance to do it.
If you or a loved one has been sexually assaulted or sexually abused and you would like to know more about your options, please contact the team at Jellinek Ellis Gluckstein Lawyers for a no-cost, no-obligation consultation.
Making that first call can be a worrying experience for survivors. Rest assured that when you call us we will treat you with great empathy and sensitivity, help you understand the many paths forward, and offer to join you on a path if you trust us to be your legal advocate and representative.