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Civil Remedies for Sexual Assault

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Civil Remedies for Sexual Assault Civil Remedies for Sexual Assault ________________ A Report prepared for the British Columbia Law Institute by its Project Committee on Civil Remedies for Sexual Assault _______________ The members of the Project Committee are: Professor John McLaren - Chair Megan Ellis Dr. Roy O’Shaughnessy Etel Swedahl Professor Christine Boyle Arthur L. Close, Q.C. (Executive Director, BCLI) Jennifer Koshan - Reporter BCLI Report No. 14 June, 2001 British Columbia Law Institute 1822 East Mall, University of British Columbia, Vancouver, B.C., Canada V6T 1Z1 Voice: (604) 822-0142 Fax:(604) 822-0144 E-mail: [email protected] WWW: http://www.bcli.org ----------------------------------------------- The British Columbia Law Institute was created in 1997 by incorporation under the Provincial Society Act. Its mission is to: (a) promote the clarification and simplification of the law and its adaptation to modern social needs, (b) promote improvement of the administration of justice and respect for the rule of law, and (c) promote and carry out scholarly legal research. The Institute is the effective successor to the Law Reform Commission of British Columbia which ceased operations in 1997. ----------------------------------------------- The members of the Institute Board are: Thomas G. Anderson Trudi Brown, Q.C. Arthur L. Close, Q.C. (Executive Director) Prof. Keith Farquhar Sholto Hebenton, Q.C Ravi. R. Hira, Q.C. Prof. Hester Lessard Prof. James MacIntyre, Q.C.(Treasurer) Ann McLean (Vice-chair) Douglas Robinson, Q.C. Gregory Steele (Chair) Etel R. Swedahl Kim Thorau Gordon Turriff (Secretary) ----------------------------------------------- The British Columbia Law Institute gratefully acknowledges the financial support of the Law Foundation of British Columbia in carrying out its work. ----------------------------------------------- National Library of Canada Cataloguing in Publication Data Main entry under title: Report on civil remedies for sexual assault ISBN 1-894278-10-0 1. Rape --British Columbia. 2. Rape victims--Legal status, laws, etc.--British Columbia. I. British Columbia Law Institute. KEB 570.7.R36R46 2001 345.711’02532 C2001-911150-9 KF9329.R46 2001 ----------------------------------------------- Outside cover by Kershaw Design and Publishing Report on Civil Remedies for Sexual Assault TABLE OF CONTENTS Introductory Note ....................................................... iii Executive Summary ..................................................... iv Part I. Introduction ..................................................1 A. The Committee’s Mandate from the British Columbia Law Institute ...........1 B. The Reasons for the Study ............................................1 C. The Committee’s Process of Research and Consultation ....................1 D. The Purpose and Scope of the Study ....................................2 Part II. The Contextual Background of Sexual Assault Claims ...............3 A. The Historical and Social Context ......................................3 B. The Reality of Sexual Assault: Definitions, Contexts, and Challenges ..........4 C. Legal Responses to Sexual Assault .....................................6 D. Representation, Procedure, and Recovery Issues ..........................11 Part III. The Particular Focus of the Report ..............................13 A. The Nature of the Harm Caused by Sexual Assault ........................13 B. Civil Liability and its Importance as a Vehicle for Doing Justice in Sexual Assault Cases .....................................................17 Part IV. Principles Underlying the Study .................................18 Part V. Civil Actions for Sexual Assault .................................19 A. The Nature of Civil Actions ..........................................19 B. Basis of Liability ...................................................19 1. Assault and Battery ............................................20 2. Negligence ...................................................20 3. Vicarious Liability .............................................22 4. Breach of Non-Delegable Duty ...................................24 5. Breach of Fiduciary Duty ........................................27 6. Breach of Charter Duty .........................................29 7. Conclusion ...................................................30 C. Causation .........................................................31 D. Damages .........................................................37 1. Introduction ..................................................37 2. Heads of Damages .............................................37 (a) Non-pecuniary Damages ....................................37 (i) Introduction .........................................37 (ii) Translating Harm into Non-Pecuniary Damages .............38 A. Quantifying the Inherent Harm of Sexual Assault .......38 B. A Maximum Award for Damages in Sexual Assault Cases? ..................................42 British Columbia Law Institute i Report on Civil Remedies for Sexual Assault C. Benchmarks for Damages in Sexual Assault Cases ......44 1. Childhood Sexual Assault .....................45 2. Adult Victims of Sexual Assault ................50 3. Basis of Liability ............................53 (iii) Aggravated Damages ..................................53 A. Quantification .................................. 53 B. Factors ........................................56 (iv) Punitive Damages ....................................57 (v) Equitable Compensation ...............................62 (vi) Charter Damages .....................................65 (b) Pecuniary Damages ........................................66 (i) Introduction .........................................66 (ii) Loss of Earning Capacity ...............................67 (c) Loss of Homemaking Capacity ...............................71 (d) Loss of Family Income .....................................72 (e) Cost of Future Care ........................................72 3. Other Damages Issues ..........................................73 (a) Secondary Victims ........................................73 E. Representation, Procedure, and Recovery Issues ..........................76 1. Access to Justice Issues .........................................76 (a) Introduction ..............................................76 (b) Information and Support ....................................76 (c) Legal Representation, Disbursements, and Costs .................77 2. The Civil Trial Process .........................................81 (a) Jury Trials ...............................................81 (b) Privacy Interests ..........................................82 3. Interest Issues .................................................82 4. Execution of Judgments .........................................86 5. Insurance ....................................................89 (a) Introduction ..............................................89 (b) Policy Issues .............................................89 (c) Coverage Issues ...........................................91 F. Criminal Injuries Compensation .......................................95 Part VI. Summary of Recommendations .................................96 Part VII. Table of Sources .............................................102 A. Legislation .......................................................102 B. Cases ...........................................................103 C. Authors and Reports ...............................................108 D. Glossary ........................................................113 The research in this Report is current to May 15, 2001 ii British Columbia Law Institute Report on Civil Remedies for Sexual Assault Introductory Note The British Columbia Law Institute has the honour to present: Report on Civil Remedies for Sexual Assault This report addresses the way in which civil damages are assessed and awarded to the victims of sexual assault. It was carried forward on behalf of the British Columbia Law Institute by a special Project Committee whose members were appointed by the Board to reflect various professional perspectives and experience in relation to this troubled area of the law. The Committee members carried out a thorough review and analysis of the jurisprudence and the larger legal framework within which the claims of victims are asserted. The Committee also consulted widely with interested persons and groups. The Committee has brought forward over 30 recommendations on this topic. Since most of the law in this area arises out of decided cases, the majority of the recommendations are directed to the courts. They urge that, subject to the recognized limits on judicial “law- making,” future decisions touching on particular issues should develop in ways that reflect the Committee’s analysis. Other recommendations are directed to the Provincial Government and Legislature and to other bodies for action within their particular spheres of competence. The excellence of the Report lies in its summary of this very complex area of the law and of the fundamental underlying issues, as well as collecting together a full analysis of the authorities. The Board unanimously commends the Committee’s work as a valuable resource for those who must deal with these issues on a regular basis. We would like to thank the members of the Project Committee, and in particular its Chair, Professor John McLaren, for the time and energy they have devoted to this task. June 28, 2001 Gregory K. Steele Chair, British Columbia
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