Saturday, January 06, 2018

Why some sexual assault cases are civil and some criminal

It has taken me a while to notice, but some of the slew of recent sexual assault cases are civil cases and some are criminal. For example, the claims against Harvey Weinstein and the more recent ones against Albert Schultz are civil cases; the case against Jian Ghomeshi, on the other hand, was a criminal one.
Sexual assault always seems like a criminal offence in nature, but apparently there are good reasons to pursue it in the civil claims court.
For one, the burden of proof is much more exacting in a criminal case: a crime must be proved beyond a reasonable doubt. If there is any doubt at all, then the case falls and the defendant goes free, and is effectively exonerated in the eyes of the world. This is what happened in the Ghomeshi case, for example, much to the disgust of women everywhere.  In a civil suit, on the other hand, the case hangs on the balance of probabilitie, and the preponderance of the evidence. So, if the accuser is believed more than the accused, even if it is as little as 51% to 49%, then the accuser wins. It is therefore usually easier to win a civil case.
The remedy in a civil case is usually financial. Thus, a woman may sue for sexual harassment for a particular amount, for example $x million, and if she wins, she receives the $x million from the defendant. But it is not just about money, it is also about accountability: if a civil claim is proven, the defendant is publicly shamed and seen to have transgressed in the eyes of the world. The money goes to the victim to be used to help rebuild their lives, for therapy, education, career purposes or whatever.
Finally, an accuser typically retains more control over a civil case, how far to pursue it, whether or not to accept a settlement, etc. A criminal case, however, is largely out of the hands of the victim: it is up to the police to decide whether or not to lay charges, and up to the Crown to prosecute it as they see fit. The accuser in a civil case is also entitled to their own lawyer, and can call witnesses, force the defendant to testify, etc, rather than just being a passive witness as in a criminal case.
There are, though, some drawbacks to a civil suit. The costs can be substantial, even prohibitive (unless a lawyer takes on a case pro bono), and if the case fails and the defendant ultimately wins, the accuser is on the hook for the defendant's legal costs too. Even in the case of a win, it is not always easy to actually collect the damages. Also, the victim may have to publicly disclose all sorts of personal details in order to justify the damages claimed.
A defendant may offer to settle out of court in a civil case, which is easier and cheaper for everyone concerned. But this means that they do not publicly admit liability for the action, which is often a non-negotiable issue for victims of such crimes. A civil case is not so much about establishing the guilt or innocence of a perpetrator, merely determining whether or not they were responsible for the injuries or damages claimed. Neither does a civil case result in a prison sentence for the guilty party, just a financial penance, which may not be sufficient for the aggrieved victim (although pursuing a civil case does not necessarily preclude also going down the criminal route).
Legal cases can be protracted and harrowing, and they are not to be entered into lightly (unless you are, for example, Doanld Trump, for whom litigation is a major hobby). But at least I understand a little better now, why some of these cases are civil and some criminal.

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