The #MeToo movement has opened up a huge conversation. It’s a shame it took so long, but female voices are beginning to be heard. More and more, we see women taking a stand against abuse by men. Their voices need to be heard, and the progress we’ve made so far is still not enough.
In some ways, it’s because coming forward can be daunting. Many women who have been harassed, assaulted or abused fear the thought of going public, of having to relive their trauma countless times, repeating the same thing to police officers, to the Crown lawyers, never mind the thought of having to testify in open court in front of their abuser.
As a former prosecutor, I know that by forcing victims to take the stand and face the accused, that we are reintroducing them to the trauma.
But is a victim who stays in the shadows less of a victim, because she is not willing to go public?
Are the people who sexually harassed, sexually assaulted, or acted in any other inappropriate way and remain in the shadows any less guilty that those who are convicted or found liable in a court of law?
Not at all. And there’s something you can do about it.
Besides going public, what else is there?
Often, allegations of sexual assault can be resolved through agreements made outside of court. In essence, whether you are the victimized party, or the one who committed the harmful acts, you have the power to choose to stay in the shadows, and still be able to deal with the matter.
How does this work? Through Confidentiality Agreements. These agreements can give those who have experienced sexual assault an element of control often not present in criminal or civil court proceedings.
Both parties have a say to demand terms of the agreement, both walk away feeling heard, consulted with, and they know they are the main players, not the lawyers, not a judge, and perhaps most importantly, not the public.
When an out-of-court settlement is achieved, it is a legally binding contract and there are benefits for all parties involved. A plaintiff or accuser will get certainty, finality, closure, compensation and perhaps an ability to move forward knowing their experience has been heard.
Those who were the perpetrators of sexual assault may also see a Confidentiality Agreement as an advantage compared to a criminal or civil trial, primarily from protecting their families and reputation from the risk of publicity. In many ways, it provides the abuser a chance to make reparations and atone for their actions, while sparing the person abused the turmoil of reliving their experience.
When a Confidentiality Agreement is on the table, a victim should never be made to feel that he or she will not be allowed to speak to a counsellor about the events, or to a financial adviser about funds received, or to his or her own lawyer.
As much as possible, complainants should know that their freedom of speech is intact: they can talk about the abuse they suffered. Anyone who has been victimized should be allowed to say it when they want to.
The main difference involves reputation. The main difference involves privacy and the preservation of dignity. It means that the actual second-by-second details of the abuse will not have to be dissected by law enforcement, the courts and the public. It also means that the perpetrator will be spared having his or her face plastered on the news.
The alternative can be much worse
The legal avenues involving criminal prosecution or civil litigation are expensive, intrusive, stressful, and very public.
As a former Crown prosecutor, I have prosecuted sexual assaults, harassment, and other related matters for many years as Crown Counsel. I have spoken with hundreds of victims, and understand only too well what it’s like to have to relive events that have left such devastating impact.
As a former prosecutor, I know that by forcing victims to take the stand and face the accused, that we are reintroducing them to the trauma. Usually, by the time I met the victim, they had already spoken to police a couple of times. Then, they had to meet with the Crown, usually more than once.
And then it’s still not over. He or she has to tell what happened in court. The defence lawyer then questions the victim, and tests his or her credibility through cross-examination. No matter how kind and professional the defence counsel is, this is excruciating.
It is far from being the best system.
And at the end of the day, the results are anything but certain. Some of the people I prosecuted were convicted, some plead guilty, but it is important to note some people were acquitted, in some cases because the victim could not bring his or herself to recount the traumatic events in court.
What about civil lawsuits for sexual assault allegations?
Civil trials do not spare victims from having to testify in court. Civil trials do not spare victims from being subject to cross-examination.
But civil litigation does offer some advantages. A big difference between the criminal and the civil courts is that the burden of proof is much lower in a civil court. What this means is that is it easier to have someone found liable for their actions, than it is to have someone found guilty beyond a reasonable doubt by the criminal justice system.
In civil court, plaintiffs are regularly awarded damages when someone is found liable, unlike in criminal court, where victims do not receive damages for pain, suffering, loss of income and so on.
Additionally, confidentiality clauses and out-of-court settlements, are an accepted part of a settlement package in our civil justice system, so you can still take advantage of those avenues.
As a lawyer who has seen many cases of sexual harassment, abuse and assault, I know how difficult these cases can be, and how often the best thing for those involved is knowing they have the support of a professional who will help guide them through.
If you have any questions and are looking for someone who will maintain your privacy, please call 250-384-0100, and ask for Elizabete.
Elizabete Costa
Acumen Law Corporation