What is the Burden of Proof in Sexual Abuse Claims? “How do I prove my claim?”

by John McKiggan

School for the Deaf Students make sexual abuse claims

Recently former residents of the Nova Scotia School for the Deaf have come forward with allegations about childhood sexual abuse. I have been representing survivors of childhood sexual abuse for almost 25 years. In most cases the allegations that give rise to the claims are decades old. So the most common question that I get asked about by survivors is: “How do I prove that I was abused?”

What is “The Burden of Proof”?

In order to answer this question you have to understand a legal term called the “burden of proof”. The burden of proof is the level of proof or evidence that you need to provide to the court in order to satisfy the court that your allegations are true.

The level (or burden) of proof required for sexual abuse claims is different depending on whether you want to pursue criminal charges or a civil sexual abuse compensation claim.

Burden of Proof in Criminal Charges

Sometime survivors want to pursue criminal charges against their abuser. The criminal process is designed to punish abusers for their misconduct. Because someone convicted of a criminal offence can be imprisoned the courts want to ensure that the allegations are almost certainly true.

Therefore, the level of proof required to establish a criminal charge is higher than the level of proof required in civil cases.

In any type of criminal case the crown prosecutor must provide evidence to prove that the allegations are true “beyond a reasonable doubt”. In other words, the crown prosecutor, who bring forward the charges on behalf of the victim, must lead enough evidence to establish almost to a degree of certainty that the victims allegations are true. It is not necessary for the judge to be certain. However, if the Judge (or Jury) has any “reasonable doubt” about the accuracy or truth of the allegations then the accused must be acquitted (found not guilty).

Burden of Proof in Sexual Abuse Compensation Claims

On the other hand, the burden of proof in abuse compensation claims is very different. When a survivor sues their abuser (or the institution that employed the abuser) the burden of proof required is only proof “on the balance of probabilities”.

Using the example of certainty, if you have to be almost 100% certain to convict someone of a criminal offence in order to win a civil suit you only have to be 51% certain.

Put another way, if you look at all of the evidence on both sides of the case and place them on a scale, as long as the evidence for the victim tips the scales even slightly in favour of the victim then the sexual abuse survivor has met the burden of proof on the balance of probabilities.

I have prepared an educational video to explain this concept in more detail.

What Type of Evidence can be used?

It is very rare in cases of historic sexual abuse for there to be witnesses of the abuse. Similarly, most sexual abusers don’t keep a record of their abuse so it is rare (although not unheard of) to find photographs or letters or other documents proving that the abuse took place.

Therefore, in most cases, the only evidence in support of the victim’s allegations is the victim’s own testimony about what happened to him or her.

Since most sexual abusers rarely admit their crimes typically the abuser will deny the allegations.

So most cases of sexual abuse boil down to “he said she said” or “he said he said”. In other words, the court has to weigh the evidence of two completely different stories to determine which story is most likely to be true.

Weighing the Evidence

When a Judge or a Jury considers the evidence from an abuse victim and the evidence from the abuser the court is supposed to consider two factors:

  1. Credibility; and
  2. Reliability.

What is Credibility?

In legal terms “credibility” means whether the witnesses testimony can be considered to be true and accurate. Put another way credibility means how believable the witness is.

So when considering whether a victims testimony is “credible” the court must consider whether the evidence taken in the context of all of the other evidence makes sense.

A simple example in the case of a sexual abuse claim would be where the victim has accused a teacher or counsellor who had regular contact and access to the victim. This type of allegation may be found to be credible when looking at all of the school or institutional records showing how often the victim had contact with the accused abuser.

On the other hand, records may show that the accused abuser didn’t work at the institution during the time the victim says that they were abused. In a case like this the victim’s allegations may be challenged as not being credible because the records show there was no opportunity for the accused abuser to assault the alleged victim.

What is Reliability?

On the other hand, reliability refers to the trust and faith that you have in someone’s evidence. Someone who is trustworthy is someone who’s evidence may be found to be reliable.

Reliablity is a question of law that concerns itself with the quality of the evidence.

Reliability versus Credibility

So in questions of historical sexual abuse the witness may be credible (their story may be believable) but because the abuse happened years ago their memory may be fuzzy so that their recall of what happened may no longer be reliable.

Perhaps the easiest way to understand the difference between these two elements is if a witnesses testimony is reliable then, by definition it is also credible. However, a witness may be credible (believe what they are saying) but the evidence may not be reliable (the evidence conflicts with other independent sources of information).

Want more information about sexual abuse compensation claims? I have written a book for sexual abuse survivors called Breaking the Silence: The Survivors Guide to Sexual Abuse claims in Canada.

Want More information?

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For almost 25 years I have dedicated my practice to representing survivors of childhood sexual abuse. I wrote Breaking the Silence: The Survivor’s Guide to Sexual Abuse Claims so that abuse survivors and their families can get good solid information about their legal options, privately and confidentially.

If you would like a copy of Breaking the Silence, you can buy a copy of the book on Amazon.com (all profits are donated to charity) or you can receive a free copy of the book by contacting me through this blog or by calling toll free in Atlantic Canada 1-866-974-8281.

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