There a variety of sexual ‘crimes’ for which a person can be held both criminally and civilly liable. There are also sexual acts for which someone can be held civilly liable, even if they would not be prosecuted criminally.
What do we mean when we say ‘civilly liable’?
We mean that this person can be ordered to pay you compensation for the harm expenses and pain and suffering they’ve caused you through their actions.
We should mention what we will not be covering in this article. We will not be covering actions that relate to invasions of and violations to your privacy. These actions – called ‘privacy torts’ - include things such as the disclosure of embarrassing private facts (such as the posting of intimate photos or videos online), intrusions into your private affairs (such as hacking your bank account or reading your journal); or use of your image without your consent. These items, while relevant and possibly applicable to your case, were covered in one of our previous videos on lawsuits you can bring for invasions of your privacy (click here).
In this article, we will be focusing specifically on lawsuits that you can bring if you were sexually harassed or assaulted. Either or both of these claims can also include a claim for abuse, but they must arise out of either harassment or assault, so we will be focusing on these two grounds. Let’s start with sexual harassment.
Sexual harassment is the act of “engaging in a course of vexatious comment or conduct that is known or ought to be known to be unwelcome.” Using this definition, more than one event must take place for there to be a claim for sexual harassment. However, depending on the circumstances, one incident could be significant or substantial enough to be sexual harassment.
Sexual harassment can take a number of forms. It can be an unwelcome comment on your appearance by a co-worker; a sexual advance or request by your supervisor; an implication from the VP at your office; or jokes from your teammates that are encouraged by your shift supervisor. And it’s not just sexual advances – every person has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee. Most actions that give rise to sexual harassment claims occur in the workplace, but they can also occur at home if you rent a property.
There are three keys to proving that you have suffered sexual harassment at work or at home:
That the conduct was harassing, which means, it was unwelcome,
That the conduct was sexual, meaning, it related to either your sex or gender, and
The conduct was either repeated and persistent or, if it’s only one instance, so extreme as to have caused significant distress
The common way a person sues for sexual harassment is by bringing a complaint to an appropriate human rights tribunal. We won’t go into too much detail about the entire process and function of the HRTO, but if you want to learn more about the tribunal, you can check out this video.
However, for the purposes of this article, we’ll say this: The human rights tribunal awards damages for ‘injury to dignity’. They are focused on protecting you from sexual harassment in the workplace and at home if you have a landlord. The HRTO can also hold your employer liable for the acts of your co-workers if the employer knew or ought to have know about the harassment and didn’t stop it.
Here is an example of a case that we won at the HRTO regarding workplace sexual harassment.
Now, let’s talk about slightly more serous situations where the criminal justice system is involved. When the criminal justice system gets involved, it changes from being a sexual harassment claim to a claim arising out of sexual assault.
Sexual assault is defined as the intentional application of force that violates a person's sexual integrity, without that person's consent. There is no single act but rather a range of conduct that falls within this definition, from unwanted sexual touching to forced intercourse. Sexual assault may take place in a single isolated incident, and be perpetrated by stranger, but it is often perpetrated in a series of incidents over multiple years alongside other forms of abuse.
That description comes from Canada’s case law, meaning a series of court decisions, but, to put it simply, the major difference between sexual harassment and sexual assault is that sexual harassment does not normally involve ‘violent sexual touching’ – meaning, you were not violated physically – though touching and grabbing may fall into the ‘harassment’ category. Another more technical difference is that a sexual assault is a breach of the criminal code, whereas sexual harassment is a breach of the Human Rights Code.
Depending on when the assault happened and who committed the assault, there is a lot of difference in how a sexual assault claim proceeds. In short, in order to prove that you are entitled to compensation for sexual assault, you must prove three key things:
Force was applied
That force violated a person’s sexual integrity
That the assailant was actually the person who applied the sexual force.
The law recognizes that there are difference between various types of victims of sexual assault, in terms of the nature of the relationship with the perpetrator. In fact, there are three typical categories of victims.
The first kind of victim is if you were sexually assaulted as a child by someone who was not part of an institutional authority, whether by your parent, a family member, or a friend.
The second kind is if you experienced sexual abuse as a child by a person in a place of authority who is part of some kind of institution, such as a teacher, counselor, foster parent or religious leader. In these cases, the institution can also be held liable.
The last kind of victim is if you were assaulted as an adult. As an adult, the nature of the relationship still matters but is not as a big a factor as it is for the previous two kinds of victims. It primarily impacts on the amount of time you have to bring a claim after the incidents occur.
Compensation that can be won in court for sexual assaults victims are significant. It can include claims for lost income, loss of employment opportunities, medical and therapeutic care costs, in addition to claims for pain and suffering you will suffer for the rest of your life. The law recognizes that the impact of sexual assault is long-lasting and significant.
 Section 10 of the Human Rights Code
 Authorities for the definition of sexual assault as set out above include R. v. Seaboyer,  2 S.C.R. 577 (S.C.C.) at p. 648 (per L'Heureux Dubé, J.); Osolin v. The Queen,  4 S.C.R. 595 (S.C.C.) at p. 669 (per Cory, J.) [Osolin]; M.(A.) v. Ryan,  1 S.C.R. 309 (S.C.C.) at para. 30 (per McLachlin, J.); and Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police, (1998) 160 D.L.R. (4th) 697 (Ont. Gen. Div.) at p. 702 [Jane Doe]. The definition of sexual assault set forth in criminal caselaw, and specifically in Osolin, was confirmed to apply to civil claims in relation to sexual assault and battery. Cromwell J.A. in Nova Scotia (Attorney General) v. B.M.G., 2007 NSCA 120 (N.S.C.A.) at para. 128 [B.M.G.].