National Post (National Edition)
Also, why the Soulpepper Four skipped the police.
CIVIL COURTS ARE THE NEW SHERIFF IN TOWN FOR SEXUAL MISCONDUCT
Perhaps the most curious aspect of the shocking allegations against Soulpepper Theatre actor and founder, Albert Schultz, is how someone accused of being a “serial sexual predator” faces not one iota of criminal jeopardy.
The accusations made by the four female plaintiffs of groping and sexual harassment arise from 30 individual incidents alleged to have taken place over a 13-year period starting in 2000. Note the use of the term “plaintiffs” and not the more frequently cited parlance of “complainants.” Despite allegations of unwanted sexual touching, no criminal charges of sexual assault have been laid.
This tactical decision to adopt a civil attack strategy in lieu of the traditional police complaint may presage a tectonic shift in how women — and it is almost exclusively women — respond to alleged sexual abusers.
Having watched a litany of complainants flame out under fiery cross-examination in a criminal courtroom, the shift to the relative privacy of a civil case becomes even more appealing when reviewing the recent history of complaints against high-profile entertainers. The complainants in Jian Ghomeshi’s case were roundly discredited in a scathing trial ruling. Even Andrea Constand, who calmly and credibly swatted away hours of withering cross-examination by lawyers for Bill Cosby, left court at the end of the actor’s case with nothing but a deadlocked jury and a mistrial to show for it. For all her troubles, she will be back for a second round, facing an entirely new defence team, in April.
It is no wonder then that a new breed of alleged victim is paying very close attention to the different burden of proof afforded to civil plaintiffs. While many a criminal case has floundered trying to overcome the standard of proof beyond a reasonable doubt, civil plaintiffs need only prove their case on a balance of probabilities — morelikely-than-not. Civil cases almost never go to trial, dramatically increasing the prospects that these women will see some sort of negotiated settlement rather than the winner-take-it-all conclusion that is more common in criminal cases.
Most appealing for sexual harassment complainants, the civil discovery process virtually assures an opportunity to question the defendant about his alleged misdeeds. The vitally important right to silence cloaks only the criminal defendant.
In our post-Harvey Weinstein, #MeToo world, a potential sexual misconduct plaintiff has some interesting choices. Quietly file a claim with no fanfare and let the process make its glacial progression through the civil system until a settlement is eked out. Or, go big with a public announcement knowing that the defendant is likely to face an immediate and unremitting backlash resulting in widespread humiliation and likely job loss. To be sure, such consequences flow just as fast from being charged criminally, but the civil plaintiff need not even jump the low hurdle of establishing reasonable grounds for the police to lay a charge. All you need is a lawyer willing to take the case.
And therein lies one of the few weaknesses of the civil strategy. Police investigate crimes and Crowns prosecute them all without any financial contribution from the complainant at the centre of the case. A civil plaintiff either needs to reach deep into her wallet or convince a lawyer to assume the risks of taking her case on contingency. Lawyers will only be enticed to accept such arrangements when there is a deep pocket across the table. Should the plaintiffs push all the way to trial and lose, there can be serious costs consequences, but these hazards are offset by the prospect of substantial damage awards should the claim prove victorious.
The tides are shifting. Victims read the papers. They watch the news. They know the courtroom score. When a woman walks into my office and describes a history of sexual harassment and abuse, I will ask one question: How badly do you want to see your abuser behind bars? If the end game is anything but jail, there’s a new sheriff in town and it’s the civil courts.