Many survivors of gender-based violence (GBV) want nothing whatsoever to do with the law – any law. It’s not hard to see why.
Criminal charges are not laid when they should be or are laid when they shouldn’t be; sexual assault survivors are blamed for what has happened to them; trials leave many of them feeling as though they, not the accused, were on trial; there are few convictions and even fewer appropriate penalties for those who are found guilty.
Family court is no better: women are not believed or are reprimanded by judges for not leaving sooner; the intimate partner abuse (IPV) they have been subjected to is degendered and described as “high conflict;” and orders too often force them and their children into ongoing and unsafe contact with the abuser.
That leaves civil law, which is largely underused by survivors of GBV; particularly survivors of IPV. Survivors of institutional sexual violence have had some success with civil lawsuits — especially where there are a number of survivors and the institution has deep pockets – but those who have left relationships in which their partner has abused them have not tended to try this approach.
Civil law 101
For those not familiar with civil law, here’s a quick backgrounder.
A civil lawsuit allows one person (the plaintiff) to sue another (the defendant) because they believe the other person has caused them harm. While criminal law is public — the state vs the accused — civil law is private. The case is between two individuals and the state has nothing to do with it.
In a criminal trial, the prosecution is undertaken by the state, through the Crown Attorney, and the victim is not an official party to the proceeding. In a civil lawsuit the plaintiff and the defendant are both parties. This gives the plaintiff a bigger voice, an active role and a say in how matters proceed.
The standard of proof is different, too: in a criminal trial, the judge must believe the accused is guilty beyond a reasonable doubt before a finding of guilt can be made; in a civil trial (as in a family court trial), the judge will determine whose story is more believable on a balance of probabilities.
The onus of proof in a criminal trial rests with the Crown Attorney, who must establish the case beyond a reasonable doubt. In a civil trial, the onus sits with the plaintiff who must establish, on a balance of probabilities, that they were harmed, that the defendant caused the harm, and that a dollar value can be attached to that harm.
A civil lawsuit for damages can be successful whether or not the defendant was criminally charged or convicted; however, because the criminal standard of proof is more onerous, where there has been a criminal conviction, it becomes much easier for the plaintiff to establish that the defendant caused the harm.
In the recent B.C. case, the husband was charged criminally after a horrific assault on his wife; an assault that followed years of physical, psychological, financial and coercively controlling abuse. He eventually pled guilty to one charge of assault, after his lawyer and the Crown entered an “Agreed Statement of Facts,” and received an absolute discharge, which means he faced no penalty and no conviction was registered against him. It’s worth noting, as the judge in the civil lawsuit did, that the wife did not agree with this statement of facts.
The wife then sued the husband for damages and was awarded $800,000. (The husband has appealed this decision, so it will be some time before the wife sees her money.)
In a 130-page decision (the criminal decision ran to a mere six pages), in which the judge spent more than 12 pages reviewing the abusive behaviours of the husband (the criminal decision spent just four paragraphs on this), Justice Fleming found that the husband had committed a battery on the wife. A battery is the direct, intentional physical interference with another person that is either harmful or offensive to a reasonable person.
Having passed the first part of the test – establishing that the defendant caused the harm – the judge moved on to consider the extent of the harm and what that was worth in dollars. In doing so, she preferred the wife’s evidence over the husband’s in virtually every instance.
She found that the husband’s battery of the wife caused many and serious physical and psychological injuries. Despite the fact that the parties attempted a reconciliation after this particular assault, Justice Fleming, largely because of the long history of abuse preceding this incident, accepted the wife’s evidence that she was very fearful of her husband:
“I expect I can take judicial notice of the reality that victims of intimate partner violence often leave and return to the relationship many times.”
Dollars for damages
The wife’s award reflected damages in a number of categories. There were non-pecuniary damages, which address pain, suffering and loss of enjoyment of life. In this case, the judge noted that, in addition to physical pain and discomfort that had a negative impact on her lifestyle, the wife experienced “profound” psychological and emotional suffering, including shame, embarrassment, humiliation and fear, in part, because the assault took place in the presence of the children:
“Significantly, the battery occurred in the context of a spousal relationship, an important relationship of trust.”
Money was also awarded to the wife for the cost of her future care, loss of earning capacity both past and future and special damages, which included money she had to repay to the province’s public health care plan.
Justice Fleming declined to award punitive damages, because, she wrote:
“I am satisfied that the very significant damages awards I have made will serve to punish him and deter other wrong doers.”
What does it mean?
The wife in this case may have received a large award, but it’s not like winning the lottery. The abuse has still happened and, however much money the wife may eventually see, she and her children have been permanently harmed by it. The husband was not held to account in the public criminal system. He has appealed this decision, which means the wife must continue to engage with him for some time to come. He may find ways to deplete his assets to stop her from collecting what the court has awarded her.
A civil lawsuit is not right for all women. A two-year – or longer – legal fight, possibly after a criminal and/or family case, is an option many women will not want to contemplate. And, for women whose abusers don’t have the financial capacity to pay up, it would be a largely meaningless undertaking.
Nonetheless, this carefully written decision is important. Justice Fleming’s detailed review of the history of abuse makes very clear that civil law can take a broad and contextual look at IPV, allowing the court to engage in a meaningfully fulsome analysis of harm when making a decision, something that the criminal law does not allow.
It offers one woman some financial compensation for the harm done to her and the rest of us some hope that the courts can, sometimes, get it right.