Jian Ghomeshi and the Burden of Proof in Sexual Abuse Claims

by John McKiggan

Ghomeshi sexual abuse claims come to court today

Jian Ghomeshi’s criminal trial starts today. He is charged with four counts of sexual assault and one count of overcoming resistance by choking. Ghomesi has pleaded not guilty to all of the charges.

I found it interesting that CBC news has reported Ghomeshi was facing charges relating to assaults on other women but the charges were withdrawn because the Crown determined there was no reasonable prospect of conviction.

This raises a question that I am asked frequently as a sexual abuse lawyer: “How do I prove I was abused?” In most cases of sexual abuse there are no witnesses to the assaults. The most important evidence is typically the victim’s own testimony. The Judge (or Jury) hearing the case then must weigh the witnesses credibility and reliability to determine whether they believe sexual abuse happened.

The CBC reports have pointed out that, in criminal matters, a witness has a right to remain silent. Ghomeshi has no obligation to testify in his own defence. It is quite possible that Ghomeshi’s lawyers may not call him to testify if they do not believe that the Crown Attorney has proven the criminal charges “beyond a reasonable doubt”.

This raises the interesting distinction in the difference in the burden of proof ion criminal charges versus civil compensation claims. I wrote about this just a couple of months ago in my previous article: What is the Burden of Proof in Sexual Abuse Claims?

Beyond Reasonable Doubt

Anyone that has watched television or movies has heard the expression “proof beyond reasonable doubt”. That is the level of proof that is required in order to convict someone of a criminal offence. In other words, before a Judge or Jury can convict an accused in a criminal matter they must be almost 100% certain. Needless to say, that is a high burden to overcome which most of us would likely consider to be appropriate given being convicted of a criminal offence can lead to being imprisoned.

Proof on the Balance of Probabilities

On the other hand, the burden of proof required in civil cases like abuse compensation claims is very different.

In a civil law suit the plaintiff (the victim of the sexual assault) is required to prove their claim “on the balance of probabilities”. In other words, is it more likely than not that what the victim is saying is true.

Put another way, in order to successfully prove a sexual abuse claim the victim only needs to provide enough proof to convince the judge or jury that it is slightly more than 50% likely that what the victim says is true.

Ghomeshi Accusers can still achieve Justice

So what about the criminal charges that the Crown has refused to proceed with? Do those women have any options?

While they may not be able to pursue a criminal prosecution they still have the option of pursuing a civil claim against Ghomeshi. Given the much lower threshold of proof required in civil abuse compensation claims it is quite possible that claims that do not have a “reasonable chance of success” in a criminal court may very well be successful in a civil suit.

The O.J. example

The best example I can give people about the differences in the levels of proof between criminal cases and civil cases is the O.J. Simpson murder case. Simpson was criminally charged with murdering his wife Nicole Brown Simpson and Ron Goldman. Everyone knows he was found not guilty because the prosecutors were not able to prove, beyond a reasonable doubt, that O.J. had murdered Nicole and Ron. But when the families sued O.J. in civil court the jury ordered Simpson to pay the families $25 millions dollars in punitive damages because the plaintiffs were able to prove, on the balance of probabilities, that O.J. had murdered Nicole and Ron.

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