The challenges of criminally prosecuting sexual assault cases have some complainants turning to human rights tribunals in an effort to bring about systemic change and seek restitution.
The latest case involves a complaint by a woman against the University of Toronto that was filed with the Human Rights Tribunal of Ontario earlier this month.
Tamsyn Riddle alleged that after being sexually assaulted by a student on campus two years ago, she reported the incident to the university rather than to police in part because she worried she’d be further traumatized by the criminal justice system.
After finding the university’s process distressing and unhelpful, Riddle, who agreed to be identified, sought advice from other sexual assault complainants and eventually chose to approach the rights tribunal about the school’s handling of her case.
“Me filing a human rights case was more to get the sense of justice that I was seeking when I first initially reported, but also to make sure that other survivors can report to their school … and have a better experience than I did,” she said.
Riddle, who got involved with the campus advocacy group Silence is Violence last year, said there is now greater discussion among sexual assault complainants about seeking accountability through the civil system as well as â€” or sometimes instead of â€” the criminal court.
While there is no data on the prevalence of civil sexual assault complaints, which include those made to human rights tribunals as well as lawsuits and other channels, there now appears to be more awareness of those options, experts said.
And while complainants should not abandon criminal prosecution, there are distinct advantages to pursuing civil avenues, they said.
“The civil context is seen as a fairer process because the parties are more on an even keel,” said Marcy Segal, a former criminal lawyer who now focuses on civil litigation.
The threshold for a criminal conviction is proof beyond a reasonable doubt, much higher than what’s needed in a civil case, which only requires the evidence to show that something is more likely true than not, said Segal, who has represented several sexual assault complainants.
Mandi Gray, a PhD student at Toronto’s York University whose sexual assault spurred a criminal conviction and a human rights case against her university, said both routes serve their purpose and both are difficult on complainants, who must endure having their experience and trauma challenged.
“The question at the human rights tribunal was whether or not the response to my disclosure of sexual assault was discriminatory. The question at the criminal trial was whether or not I was sexually assaulted,” she said.
Gray’s assailant was found guilty last year but has since appealed the verdict. Her human rights complaint, which alleged York had insufficient protocols to deal with sexual assaults, was settled late last year.
“Myself, and everyone else that I have met to date has been interested in utilizing human rights legislation because of its ability to make systemic change that may otherwise not be available through civil litigation,” Gray said. “The ability to influence change within the institution is the primary motivator.”
The human rights tribunal can only look into cases where there is alleged discrimination involving an employment relationship or the provision of services, goods or accommodation, noted Karen Busby, a law professor at the University of Manitoba who specializes in human rights issues.
But complainants have a more active role to play in the civil system compared with the criminal system, in which they are a witness rather than a party, she said.
The civil system also offers a broader range of outcomes beyond a guilty or not guilty verdict, said Busby.
“A criminal case can’t provide financial compensation, can’t provide an apology, can’t require police to do something different, can’t require training,” she said.
Lawsuits have also been used to highlight systemic issues in some cases, Busby said, pointing to the landmark suit Jane Doe filed and won against Toronto police in the late 1990s for not warning women about serial rapist Paul Callow.
More recently, a woman whose sexual assault complaint was deemed unfounded by London, Ont., police filed a lawsuit against the force, claiming the way investigators handle such cases constitutes systemic discrimination.
Ava Williams, who has agreed to be identified, is seeking to have the court order a review of how the force investigates sexual assault complaints and of other cases previously declared unfounded.
Riddle is also seeking policy changes with her human rights complaint, including guaranteeing immediate counselling and academic accommodations for complainants.
She alleges the university took seven months to introduce informal measures to reduce her contact with the accused and provided inadequate support during that time. Her complaint also alleges the university then did not enforce the restrictions imposed on the accused, and closed its investigation without her knowledge or consent.
A spokeswoman for the University of Toronto said the school cannot discuss the case and will be giving its response through the tribunal.
Althea Blackburn-Evans said the school has also been working to update its policy and is “open to more feedback on how we support people who’ve experienced sexual violence.”
Paola Loriggio, The Canadian Press