SUE HIM OR JAIL HIM? Sexual Assault in the #MeToo Era

Harvey Weinstein. Jian Ghomeshi. Matt Lauer. Kevin Spacey. Albert Schultz. All of these men, giants in their field, have recently been taken down and held accountable for sexually inappropriate behaviour at work.

It is a time of reckoning for men who for too long helped themselves to the spoils of fame and power, by harassing and abusing those vulnerable men and women who worked for them or looked up to them.

All have been fired. Some have had their professional accomplishments erased from their work and the organisations they worked for.

Some are subject to criminal investigation; others have been sued, such as the actresses from the Soulpepper Theatre Company who sued director and co-founder Albert Schultz for sexual harassment and assault.

Why sue? Why not go to the police?

There are several differences between a civil lawsuit and a criminal charge, which can help explain why an aggrieved complainant might choose to file a claim in civil court instead of (or in addition to) going to police.

Here are five major differences between civil suits and criminal proceedings, which might make a victim of sexual assault choose to sue rather than go to the police:

1. More control over the process

   In a criminal case, the police and the prosecutors control the flow of information and the decisions to be made. The focus is usually on the secrecy and confidentiality of the process, at least until the time of trial. The reason for this is that the focus in a criminal case is on the rights of the accused, and publicity can be seen to undermine the presumption of innocence and the right to a fair trial, which are constitutionally-protected rights, and keystones of criminal proceedings.

   Often, complainants feel marginalized by the criminal process: silenced, not consulted, and treated like a lesser priority in relation to the accused.

   In a civil proceeding, the victim begins the process by filing a statement of claim. She gets to list all the behaviour that forms the basis of the complaint, and the effects that this illegal conduct has had on her. She gets to choose what to say in the statement of claim. In a criminal case, the complainant goes to the police and is questioned, usually on video, by the police, who then conduct an investigation. The participation and input of the alleged victim usually ends when the video camera is turned off, and she often has no idea what has happened to her complaint or the investigation, unless a criminal charge is filed. Often, the case is dismissed as unfounded or unprovable, and disappears. Even when a charge is laid, prosecutors and police rarely discuss the details of the case before the trial, which is often months or years away.

   With a lawsuit, the victim has her own lawyer, whose obligation is to her and her interests. The lawyer includes her in all aspects of the case, and keeps her informed. In a criminal case, the Crown attorney is the government’s lawyer, whose responsibility and obligations are to the state not the victim, except incidentally. It is not surprising that a victim of sexual assault will feel more like a true participant in a lawsuit than in a criminal case: consulted, included, and taken more seriously.

2. Easier to Prove

   In a criminal case, because of the serious consequences of a conviction, the prosecutor must prove the allegations “beyond a reasonable doubt”, which is a very high threshold.
   In a lawsuit, the standard is one of a “balance of probabilities”, which is a much lower threshold, and one which is much easier for the complainant to prove.

3. More Publicity

   When a victim of sexual assault takes action against a perpetrator, she often seeks to hold him accountable for his behaviour not just in a court of law, but in the court of public opinion. A lawsuit is a much better forum for this, as statements of claim filed with the court are public documents which can be accessed by the media. Long before a trial, indeed at the very outset of the case, the complainant can have her views publicized, and all of the allegations aired in the media. That publicity is immediate, not delayed for years until a criminal trial. And a public airing of the complaint can have a bigger impact than criminal charges on the reputation and career of an alleged perpetrator.

   In a criminal trial, the focus is on maintaining secrecy and confidentiality until the trial, which can take many months or even years.

   Leaving aside the risk of abuse, or the damage to the reputation of a defendant who is innocent of the allegations, it is easy to see why immediate and detailed publicity can provide a heavy measure of satisfaction to a complainant, and begin the process of holding a perpetrator accountable a lot sooner than the secretive and unpredictable criminal process.

4. More Flexibility

   With a lawsuit, there is a variety of options which do not exist in a criminal case, and which can help the complainant feel that her case is being addressed and the alleged perpetrator held accountable.

   In a civil suit, the defendant can be forced to testify in pretrial discovery proceedings. In a criminal case, the defendant has a right to remain silent, often depriving a complainant of the satisfaction of forcing the defendant to explain himself.

   There are more options to craft a settlement in a civil case, on terms that address the concerns and interests of the complainant. By settling a lawsuit, there is also greater room for participation and “buy-in” by the perpetrator, and for acknowledgement of harm done, than in a criminal case, where the issue is a simple and limited one: guilt or innocence.

   A lawsuit, and its settlement options, can also address a wider variety of illegal or inappropriate behaviour than a criminal case can, such as the creation of a toxic work environment; or harassment that might fall short of criminal conduct.

5. Better Remedies

   Jail is not always the outcome that a victim of sexual assault is seeking from the perpetrator. The civil process can award damages for pain and suffering, and to compensate for costs borne by the victim as a result of the offence, such as therapy, loss of income, as well as punitive damages.

   Sometimes hitting a perpetrator of sexual assault in the pocketbook might be seen to be more effective than a jail sentence, which is often short or non-existent where probation is imposed instead of jail. When an offender has to pay a large damages award, or loses his job and finds it difficult to get a new one because of the negative publicity, the effect on the perpetrator might outlast that of a criminal court’s sentence.

   And of course, given the high threshold required to hold an offender accountable in criminal court, there is a much greater chance in the criminal context than in a lawsuit, that the perpetrator walks away free from any liability or consequence for his actions.

   For these reasons, even though the civil lawsuit process is more expensive and time-consuming than a criminal case, it is often seen to be one more tailored to provide satisfaction to the complainant and her interests, than the criminal process. Sometimes the two take place as parallel proceedings.

   But keep in mind that neither process is easy, and of course neither is a complete answer to complexity of these cases. Court is messy, slow, frustrating, and expensive, no matter what the issues.