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Determining Liability in a Sexual Abuse Claim

Sexual abuse is what is called an intentional tort, rather than a tort of negligence. An intentional tort is just what it sounds like: it is an act that the law regards as having been intentional, whether or not it was done with conscious intent. For example, if someone was intoxicated and they sexually abused someone else, they might have said it was not their intent to do so, but the law would still regard this as intentional.

The standard of proof in civil matters is the balance of probabilities, and ultimately that means that the legal test is whether there was a 51% chance in the eyes of the law that the wrongful act which caused the victim harm was in fact committed by the wrongdoer.

Evidence Necessary

There are many types of evidence that can factor into determining liability on the test of the balance of probabilities. The sworn testimony of the victim is almost always the most powerful and compelling form of evidence when a judge, jury, or other trier of fact is determining liability in a Toronto sexual abuse case.

But there are many other forms of evidence, ranging from contemporaneous medical records to other circumstantial evidence, such as communications between abused and abuser at the material time. Ultimately, it is a question of all the different types of evidence that can be marshaled to meet the test of the balance of probabilities.

Vicarious Liability

Typically, negligence will not play in circumstances of individuals not reporting their abuse because of the technical operation of vicarious liability. To the extent that in an institutional setting, the institution may be held to be vicariously liable for the abuse, the vicarious liability is in respect of that intentional tort (as opposed to vicarious liability for negligence).

Vicarious liability for an intentional tort still remains categorically distinct from negligence that is actionable in tort, because it is fundamentally connected to the intentional act and predicated as a secondary form of liability on the intentional act, distinct from independently actionable negligence.

Parties Held Responsible

In many cases of sexual abuse in Toronto, it is not only the abuser that will be held liable but also those in the position to stop the abuse who fail to act. This is especially significant in institutional situations where, for example, reports of abuse within an organization may have reached persons in a position of power to stop it who nonetheless do not. Situations, where this has been recognized in the jurisprudence, include those arising within church and educational institutions.

Religious organizations and educational institutions where the abuser would be empowered to act in a fiduciary capacity may be subject to vicarious liability for putting the abuser in a position where they can perpetrate the abuse, and then subsequently failing to exercise their institutional power to put a stop to that abuse.

Evidence Used to Establish Liability

Many different types of evidence can be marshaled when establishing liability in Toronto sex abuse claims. In addition to the sworn testimony of the victim, if the victim is able to testify, there different sorts of corroborating evidence that may be medical, circumstantial, or documentary. The court will be interested in seeing whether or not the abuse came up in any reports of doctors who were treating the person contemporaneously. The court may also review circumstantial evidence in the form of communications between the abused and the abuser.

Documentary evidence might include a diary that the victim may have kept that’s reflective of these types of intimate suffering. The plaintiff’s counsel may also present expert opinion evidence, which can figure heavily in a trial where so many of the damages are subjectively experienced in a psychological and emotional sense.

Often, the testimony and the evidence of the person who suffered the abuse themselves is the most important consideration. This arises most often in what is called historical sexual abuse cases, as there is no statute of limitations for sexual abuse.

That means that a person can sue for sexual abuse 50 years down the line, which has been done in Ontario. If a person is suing many years later for acts that may have occurred in the distant past, especially while the person was a minor, the key consideration is that the evidence will be considered in relation to the circumstances of the person at the time of the abuse.

For example, recollection or testimony from a person in their 60’s of sexual abuse that occurred when they were a child may consist of very fragmented memories, but the jurisprudence has acknowledged that reconstructed memory is an extremely important consideration when weighing the evidence in these cases. A court would expect the evidence to reflect the thoughts, feelings, sensations, emotions, and experiences of a person of the age that the victim was at the time.

Types of Witnesses and Their Impact

There are three categories of witnesses whose testimony may be marshaled when establishing liability in Toronto sex abuse claims. The first category witnesses includes witnesses who, in a professional capacity, were treating or attending to the victim proximate to the time of abuse and after. This may include doctors, psychologists, social workers, or any of the supporting roles that a victim may depend on in their recovery process in dealing with this trauma.

Expert witnesses such as psychologists or psychiatrists may be asked to testify regarding the victim’s trauma and the resulting post-traumatic stress or to assist in the reconstruction of fragmented memories.

Social science recognizes that trauma has a fragmenting effect on a person’s capacity to remember. Trauma is the brain’s response to events that are very difficult to undergo and experience, and it protects us by raising a layer of distance or forgetfulness before some of the more painful aspects of such experiences. Consequently, it can sometimes be difficult for sexual abuse victims to recall precisely what happened and how. Psychological methodologies for the recovery of memory are important techniques for approaching this evidence, and more so in cases of historical sexual abuse given the non-applicability of the statute of limitations.

Lay Witnesses

Testimony from lay witnesses may also be marshaled in support of the victim’s claim. These witnesses might include family and friends who may have seen a change in the person, or who may have known information particular to the circumstances of the abuse. Lay witness testimony is often marshaled by the victim’s legal representative to establish liability in the claim.

In many cases, a person is not able to come forward and seek legal representation on their own or to testify before a court. They are simply too traumatized to do so, and a loved one or other supporting person does so on their behalf.


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