As a lawyer who regularly represents victims of sexual abuse, I was interviewed by Law Times about the quantum of damages awarded to successful plaintiffs in civil claims for sexual assault and sexual abuse. While the courts “readily acknowledge in a general way that sexual abuse causes … profound injury and loss” that recognition hasn’t translated into “specific and quantified damages [commensurate with] that injury and loss”. This is particularly troubling when the damage awards in sexual assault cases are compared to damage awards in other types of cases, such as defamation.
For example, in a recent defamation claim before the Ontario Superior Court an Ontario man successfully sued two of his nieces for loss of reputation based on their accusations of childhood sexual abuse. The judge rejected the nieces’ counterclaim for sexual assault. The uncle was awarded $125,000 in general damages. In stark contrast to the large sum awarded for the uncle’s lost reputation, the judge held that if the nieces’ claims had been accepted, he would have awarded each of them $35,000 in general damages. The judge would not have ordered either punitive or aggravated damages for the nieces.
The discrepancy between the actual award for lost reputation and the proposed award for sexual assault suggests that injury to a person’s reputation is greater than the harm suffered by victims of sexual abuse. I have practiced in the area of sexual abuse for nearly two decades, and have observed that when one "sees over and over again the profound damage wrought by sexual abuse and being constantly reminded of the depravity and evil perpetrated against vulnerable individuals, one has to question why it is that awards in this area are not more consistently, or even sporadically, higher than they have been to date.”
Lawyers have noted a number of factors that contribute to the low awards of damages in sexual abuse cases. Many of the harms suffered by survivors of sexual abuse are psychological, and therefore “invisible”. Unlike a traditional personal injury case, where a car accident may have caused a broken leg, the suffering of survivors of sexual abuse can be more difficult to assess. This may be compounded by the fact that victims often bring sexual abuse cases years after the underlying events occurred.