The #Metoo movement, which started just over a year ago, has brought to the surface the prevalence of sexual abuse. Led by the entrainment industry, and fuelled by social media, the movement has empowered individuals around the world to speak out against sexual assault and harassment.
The implications of sexual abuse allegations are wide ranging for both purported victims and defendants. Victims can support the prosecution of the defendant in the criminal courts. In addition, they can sue for financial compensation. If the defendant is a professional, then the complaint against them can lead to regulatory proceedings and professional censure.
The interplay between criminal and civil proceedings can be confusing for the layperson. Victims can pursue alleged abusers even if the accusations have not been proven in criminal proceedings. Even stranger is how the defendant can be acquitted but then still be sued in civil proceedings.
This raises fundamental questions about justice and double jeopardy.
Imagine a defendant who successfully fought allegations of sexual abuse in criminal proceedings. As they leave court, that person might be forgiven for thinking that that was an end to the matter. Instead, that same person could find themselves being sued and having to stand civil trial. At the close of the civil trial, the Judge might find them to have committed the wrongful act and order them to pay compensation to the other side.
This creates a legal anomaly due to the different standards of proof that apply in criminal and civil proceedings. In criminal proceedings, findings of fact are only permissible if proven so that the jury is “sure” of them. In civil proceedings, those same findings of fact may be made even if proven “on the balance of probabilities” (i.e. more likely than not).
A recent example of this anomaly is the case of LXA & Anor v Willcox. The Claimants were two siblings who sued their adoptive parents for a series of sexual assaults. The adoptive parents eventually faced 16 counts of sexual assault in the criminal courts. At the end of the trial in 2015, the jury found them guilty of 12 lesser counts of sexual assault but not guilty of rape, the most serious count.
In 2018, the case returned to litigation but this time in the civil courts. The Judge was asked to consider whether the rape had occurred for the purposes of quantifying damages. The Judge found that there had been penile penetration and therefore rape. He stated:
"It is not for me to speculate why the jury acquitted EW on that count [in the criminal trial]. The standard of proof is different. I have of course reminded myself that in civil cases, whilst the standard of proof is the balance of probabilities, nevertheless, the more serious the allegation, the more cogent must the evidence be. I find the allegation proven.”
This is straying near double jeopardy.
The adoptive father had been acquitted of rape at the criminal trial because the jury had been unsure that rape had occurred. Yet three years later, the parents were tried for the very same acts. That time, however, the Judge found the very same acts proven on the balance of probabilities.
Advocates for #MeToo will no doubt interpret the case of LXA & Anor v Willcox very differently from those who have been accused (rightly or wrongly) of sexual misconduct. These are emotionally and morally complex matters.
Victims who see their abuser convicted can most likely obtain financial compensation. For claimants the jury verdict is not the end of the road. They can still pursue justice by suing the defendant in the civil courts. Meanwhile, defendants must be alive to the fact that their acquittal does not spell an end to the litigation. For them, the steps away from the criminal courts can often lead towards the doors of the civil ones.