This is the first of a two-part series on defences in claims for compensation based on sexual abuse.
When compensation is claimed in a civil lawsuit based on sexual abuse, there are various defences that may be asserted in response. Depending on whether it is the person who is alleged to have committed the sexual assault, or another party who may be responsible for the assault, like an employer or organization with oversight responsibilities, the defences may differ. While defences can (and will normally) be asserted at the start and in the course of a lawsuit, this does not mean they will succeed. Ultimately, a court has to decide whether or not a defence is proven and, if so, what the consequences are. If a defence is established, this may mean the whole claim fails; it can also mean only a part of the claim fails (e.g., against one party but not another, or in relation to some events and not others).
While there are some purely legal defences that apply even where the sexual assault is proven to have occurred, most defences are based on the facts or a mixture of the facts and law.
The most common defence involves a denial of the basic facts being alleged, and can be asserted by the alleged perpetrator of the sexual abuse or other defending parties. An extreme example would be a denial that the alleged perpetrator was even with the alleged victim at the time of the alleged assault, or a denial that there was an employment relationship between the alleged perpetrator and his or her employer at the relevant time. More commonly, a defence will present a different version of events, which suggests no wrongdoing. However, all of these types of defences ultimately represent a denial of wrongdoing.
In sexual assault cases, this denial can also take the form of the defence of consent. This is where the alleged perpetrator of the sexual assault admits there was sexual contact, but says it was consensual and therefore lawful. Importantly, the onus is on the alleged perpetrator to prove that the sexual contact was consensual, and not on the alleged victim to prove it was not consensual.
The courts have said that in order to be legally valid, consent must be genuine, meaning it must have been freely given, fully informed and voluntary. Before finding that the consent was genuine, the courts may consider whether the consent:
was obtained by force or threat of force,
was given under the influence of drugs or alcohol,
was secured through deceit or fraud,
was obtained from someone who was legally incapable of consenting, (e.g., a minor or person with a significant mental disability),
was secured through duress, and/or
occurred in the context of a relationship of inequality between the parties, where the more powerful party exploited or took advantage of the weaker party for his or her own selfish purposes.
If a court finds any of these factors apply, it may decide that whatever “consent” there may have appeared to have been, it was not a consent to which the court is prepared to give legal effect (i.e., it was not a genuine and legally valid consent). To illustrate the point, consider the extreme example of a child who was sexually abused by an adult. In such a case, the child may have been of an age where he or she was legally incapable of consenting, or there may have been such an obvious imbalance of power that the courts will not be prepared to say the sexual contact was consensual in law, even if the child appeared to be a willing participant.
Whenever a claim for compensation is advanced, the alleged victim is obliged to prove on a balance of probabilities (i.e., that it is more likely than not) that his or her version of the facts is the right one and that he or she has satisfied all of the necessary legal elements to entitle him or her to compensation. Thus, if the alleged victim is claiming assault against another individual, or negligence against an employer, then the elements necessary in law to establish “assault” and “negligence” will have to be proven. A common defence strategy is to deny that the elements necessary to prove different claims can be satisfied. This type of defence typically relies both on facts and law.
For example, when claiming an employer was negligent in allowing or not stopping its employee from committing sexual abuse, the alleged victim must prove (i) the employer owed him or her a duty of care (ii) which was breached and (iii) resulted in foreseeable damages. The employer will be judged according to the standards at the time of the alleged abuse (not present day standards) and what it knew or should have known at the time. The employer may try to defend itself by arguing that it did not owe a duty of care to the alleged victim or if it did, its duty did not extend to doing what the alleged victim claims should have been done, or that it did discharge its duty and nothing it did or could reasonably have done could have prevented the abuse from occurring.
Please see Part 2 for a continued discussion of potential defences in sexual assault claims. Part 2 will address defences that are more legal or technical in nature.
Elizabeth Grace is a partner at the Ontario law firm, Lerners LLP, and has specialized in sexual assault matters for almost two decades now. Elizabeth heads a team in the Toronto office of Lerners LLP composed of lawyers and paralegals who share her interest in abuse-related legal matters. See her professional biography for more information about Elizabeth and her work in the area of civil liability for sexual abuse, or email her at firstname.lastname@example.org