Sexual Assault in the Criminal Versus the Civil Context
In the civil context, sexual
assault is a form of battery: the intentional infliction of unlawful force on
another.
The majority decision of
the Supreme Court of Canada in Non-Marine Underwriters, Lloyd’s London v
Scalera ,which considers the doctrinal dimensions of the tort of battery, is
summarized succinctly by Allen M. Linden and Bruce Feldthusen, Canadian Tort
Law, 10th Edition, [Toronto: LexisNexis, 2014], beginning
at para 2.32:
A person who proves that the
defendant made direct physical contact with her person makes her case for
battery. The onus then shifts to the defendant to establish that the contact
was neither intentional nor negligent; or that the plaintiff consented to the
contact or that a reasonable person would think she had consented. This
nominate tort protects the interest in bodily security from interference by
others. It is sometimes said that the contact must be harmful or offensive, but
this is misleading. By definition, any contact beyond the trivial contact that
is expected in the course of ordinary life is prima facie offensive if
it is non-consensual. Every person ‘A body is inviolate. The tort protects the
integrity of one ‘A person and does not require proof of further injury.
Two very significant
evidentiary rules differentiate the determination of sexual assault in the
criminal versus the civil context.
In
a Civil Action the Burden to Prove Consent Rests with the Defendant
First, in a civil
action, the claimant does not have to raise the issue of consent, disprove
consent, or prove that there was no reasonable belief in consent (a concept not
relevant to a civil claim). The evidentiary burden is to adduce evidence of
consent; the legal burden to prove consent, on a balance of probabilities, lies
with the defendant.
In
a Civil Action the Standard of Proof is Proof on a Balance of Probabilities
There is only one civil
standard of proof and that is proof on a balance of probabilities (even though
the judge should be mindful of inherent probabilities or the seriousness of the
allegations and consequences). In a civil action, the claimant need only
prove the intentional application of force of a sexual nature to the one civil
standard; that is, that it is more likely than not that intentional application
of force of a sexual nature occurred. The claim is proven if the evidence is
sufficiently clear, convincing and cogent to satisfy the balance of probability
test.
These two rules are in
sharp contrast to sexual assault in the criminal context where the evidentiary
legal burden and standard of proof as to the intentional application of force
of a sexual nature, and as to whether the claimant consented to that force, or
whether the defendant knew or ought to have known that the claimant did not
consent, remain throughout on the Crown and where the standard of proof is
proof beyond a reasonable doubt, as described in R v Lifchus 1997 CanLII 319 (SCC) 1997, [1997], 3 SCR 320.
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