October 21, 2021

Janelle O’Connor

I am a civil sexual assault lawyer and routinely receive phone calls from sexual assault survivors who are confused about the interplay between the civil and criminal processes for their sexual assault claims. The decision on whether to pursue a civil claim, a criminal proceeding, or both – and the interplay between those proceedings – depends on the unique facts of each case and the goals of each survivor. The purpose of this blog post is to provide some general information and highlight key differences between the criminal and civil processes for sexual assault.

Criminal  proceedings in sexual assault cases

The purpose of a criminal proceeding for sexual assault is to punish the offender. In the criminal process, an accuser is a witness for the Crown, but has no control over the process. An accuser is not a party to the action and is not represented by a lawyer.

If the matter proceeds to trial and the accused is found guilty, the survivor may experience genuine vindication. At sentencing, the survivor is usually given the opportunity to submit a victim impact statement explaining the impact of the crime on their life which can also provide some closure.

The burden of proof in criminal cases is a very high threshold (beyond a reasonable doubt). As a result, if the accused is not found guilty, this can be deflating and usually leaves the survivor feeling angry and invalidated.

Nonetheless, even if an accused is found ‘not guilty’, a survivor may still decide to bring a civil action. The most famous example of this scenario is the O.J. Simpson case. O.J. Simpson was found ‘not guilty’ in the criminal case but was found liable in the civil case. Further, some survivors may decide to forgo the criminal proceedings (the Crown will generally not pursue the action without cooperation and evidence from the survivor) altogether in favor of the civil process.

Civil proceedings in sexual assault cases

In a civil case, the burden of proof is on a balance of probabilities (i.e., more likely than not or 51%).  This is a much lower threshold than in a criminal proceeding, where there can be no reasonable doubt. The survivor is a party to the action and has significant control over the process. She (or he) is usually represented by a lawyer and provides the lawyer with instructions on the major steps in the litigation. If a criminal conviction has been obtained, it can be used as evidence in the civil proceedings. The civil proceedings also allow survivors to extend the lawsuit to parties other than the perpetrators. Often, an institution (such as a church or a school board) is also sued in the civil case where appropriate; as a result, further questions around liability usually need to be explored.

If successful, the civil forum provides a survivor compensation for damages. These damages will generally consist of pain and suffering, past and future cost of care and past and future income loss.

The civil system can be empowering for survivors, but it is far from perfect. There can be a significant invasion of privacy in a civil forum. For example, a survivor’s clinical records and therapy notes are usually produced to the defendant. The process can also take many years and, if the lawyer is not working on a contingency fee basis, it is cost prohibitive to many survivors.

I am a lawyer practicing in the areas of civil sexual assault and class actions at Murphy Battista LLP. If you have more questions about pursuing a civil claim for sexual assault, I am happy to speak with you on a confidential basis. You can contact Janelle O’Connor HERE.



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