The reasons some victims of sexual assault choose to sue in civil court

In this Jan. 6, 2016, file photo, producer Harvey Weinstein participates in a panel at the A&E 2016 Winter TCA in Pasadena, Calif. There are several advantages to an Ontario woman's plan to sue Weinstein over alleged sexual assaults, say legal experts who believe civil court offers better prospects for a victim. THE CANADIAN PRESS/AP-Photo by Richard Shotwell/Invision/AP, File

TORONTO - There are several advantages to an Ontario woman's plan to sue Harvey Weinstein over alleged sexual assaults, note legal experts who say a civil court can offer better prospects for a victim.

The unnamed actress announced earlier this week that she's pursuing a proposed civil suit against the Hollywood producer, alleging he sexually assaulted her nearly two decades ago.

Her proposed statement of claim says she reported the allegations to Toronto police Oct. 23. But in the meantime, she's planning to go after the mogul in a Toronto court with a hearing in the case set for Monday.

Karen Busby, a law professor at the University of Manitoba, says a big reason some victims prefer the civil route is that it can be easier to get a ruling in the plaintiff's favour.

"In a criminal case, the Crown must prove the case beyond a reasonable doubt. So if there's some doubt raised as to what happened, then the doubt is resolved in favour of the accused person," Busby says, noting a civil case does not preclude a criminal trial from also unfolding.

"In a civil case, it's a balance of probabilities — so on balance, who do you believe more? Him or her? A very, very, very different standard."

Another big draw is the fact victims retain control over how a civil case proceeds, unlike a criminal case which is largely out of their hands — the police decide whether or not to lay charges, the Crown decides whether or not to continue on to trial.

Since the heart of the complaint is often centred on who has control and how it was used, that difference can be immense for a victim, says Toronto lawyer Simona Jellinek.

"Sexual assaults are about power and it's about taking away power from somebody else and the thought of giving up power is something that a lot of people don't necessarily want to do," says Jellinek, whose firm Jellinek Law specializes in sexual assault cases.

"In the civil system ... they have more power with regards to what is it they want to do, how far they want to pursue it, whether or not they're going to accept a settlement or not."

Victims are also a party to the lawsuit, entitling them to their own lawyer, versus the criminal system in which they are considered a witness to the Crown's case.

"The Crown has a very different job than what somebody like me has in any kind of civil litigation case," says Jellinek.

That fact was on display last year when the Crown's case against disgraced CBC Radio star Jian Ghomeshi dissolved in spectacular fashion, with his accusers crumbling on the stand as bombshell disclosures emerged, all without Ghomeshi himself having to testify.

"Had those women decided to pursue civilly, I think there would have been a very, very, very different outcome," says Jellinek.

In a lawsuit, a victim can call witnesses and force the defendant to answer questions about the alleged assault.

"Which is a very powerful tool to get to the actual truth of things," says Jellinek.

"If (the case) goes to trial then (Weinstein) will take the stand, there is no doubt about it. Absolutely, absolutely, and my guess is that's the last thing that he wants to have happen."

If Weinstein wants to avoid the stand, he would have to settle, she says, adding that "more often than not" these types of cases end up as negotiated settlements.

The Canadian claim is among a slew of sexual harassment allegations Weinstein faces from several women. The Oscar-winning producer was fired from his namesake company Oct. 8, days after the New York Times reported several allegations of sexual harassment.

Weinstein's representative Sallie Hofmeister has said he denies all allegations of non-consensual sex.

None of the allegations in the proposed statement of claim have been proven in court. Weinstein's representative could not immediately be reached for comment.

The Ontario actress is seeking millions of dollars in damages, claiming she has suffered mental distress, extreme social anxiety and depression.

"Some may say, 'Well, this is all about money,'" says Joanna Birenbaum, a litigator specializing in sexual assault law at Ursel Phillips Fellows Hopkinson LLP in Toronto.

"In my experience, the choice to pursue civil remedies is frequently not just about money.... Often, in conjunction with a damages award, what plaintiffs are seeking is accountability."

Jellinek agrees, summing it up this way: "In a criminal case, the only remedy is to punish the perpetrator. In a civil case, the remedy is to try to help the survivor."

"It's about trying to help the person whose life has been completely — almost always completely — damaged and all the ramifications of that to get to a situation where they are able to afford, for instance, good therapy and they are able to afford going back to school if their schooling was disrupted."

But there are downsides, and risks: The costs can be prohibitive unless a lawyer takes the case pro bono or on a contingency fee basis. If the victim loses, they're on the hook for the defendant's legal costs, too.

And if the plaintiff wins, there's no guarantee they can actually collect damages.

"I have lots of people who come to me and they have very strong civil sex assault claims but their chances of success in terms of collecting on a damages award are zero," notes Birenbaum.

"Cases where you're suing individuals, unless they're someone wealthy like Weinstein, are risky."

Then there are rules that the victim must disclose all sorts of personal details that otherwise wouldn't be required in a criminal case to prove the alleged damage, says Busby.

And while a settlement might offer more flexibility to negotiate what a victim needs, it often comes without an admission of liability and can include a gag order, says Birenbaum.

"Quite simply, it's a compromise," she says. "The purchase price of settlement is women's silence."

Lawyers for the Ontario woman will seek permission Monday to move ahead with the claim without using her name. An affidavit from one of her lawyers argues that using her name would cause irreparable harm to her mental health and well-being, and that she may not continue with the case if she must be identified.

Jellinek expects the court to agree: "It's rare the case where that doesn't happen."

Other options to pursue can include filing a claim with a victim's provincial human rights tribunal or commission.

Jellinek says it's important for victims to know they have options.

"For so many years these people have believed that they can do nothing, that nobody's going to believe them, that there's nothing that can happen," says Jellinek.

"When they do learn that yes, there is something that can happen and these are the possible things, that sometimes changes peoples lives."


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