Sexual Assault by Police, Probation Officers, etc.
Police Officer, Probation Officer, Prison Guard, Sheriff, etc. Sexual Assault and Abuse Claims.It is possible to sue the Government (both Federal and/or Provincial) for sexual assaults committed by Police officers or other Government employees. This is done through the legal principal of vicarious liability, which refers to situations where law holds one person/Government/corporation, who is free of personal fault, responsible for the misconduct of someone else (usually an employee).
Given the large number of individuals who work for the Canadian Government, or a Provincial Government entity, cases of sex abuse and assault by Government employees are fairly common. Many times, Government employees are in a position of power and trust towards the victim (police officers, probation officers, etc.) and this power imbalance gives rise to a situation that is ripe for sexual abuse.
Often, the question becomes whether the Government and be found civilly liable for the actions of their employee. Given that the ability to pay a judgment is critical to any sexual assault lawsuit, the vicarious liability of the Government is often a major part of any case.
Vicarious Liability of the GovernmentThe question of whether the Government will actually be found liable to pay the judgment will depend on the specifics of each case. Just because an individual is a Government employee does not guarantee vicarious liability (that the Government will have to pay). Essential questions include whether the abuse took place while the assailant was at work, the circumstances or environment where the abuse took place, the relationship between the victims and the assailant, whether the Government failed to take proper precautions necessary in the circumstances to avoid the risk of abuse, the manner in which the assailant and the victim met, etc.
The main "test" that courts use in determining whether to hold an employer financial liable for sexual assault is described by the Supreme Court of Canada in Bazley. Here, the court lists five main factors to consider, which are:
1. the opportunity that the enterprise afforded the employee to abuse his power
2. the extent to which the wrongful act may have furthered the employer's aims
3. the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise
4. the extent of power conferred on the employee in relation to the victim; and
5. the vulnerability of potential victims to wrongful exercise of the employee’s power
Canadian courts will thus examine the facts of the case in light of the five Bazley factors in order to make a determination of vicarious liability. As this analysis is contingent upon the findings of fact made by the court, along with the court's determination of how those facts apply to the law, it is impossible to know for sure in advance whether an employer may be found vicariously liable.
Police Boards and Officer DisciplinePolice officers are highly regulated by the Government. The Government has the power to impose penalties on officers, including fines and termination, when a claim of sexual assault is made. This is an independent process designed to protect the public and maintain the integrity of the police force. In conducting itself, a hearing may be held to determine the facts of the case. Don't confuse this process as being your avenue for compensation, it is not.
The victim may also sue the Police Officer, and sometimes their employer, civilly for financial compensation in court (or obtain financial compensation through a settlement). Your ability to sue is not the decision of the police chief, any police officer, or the police department. Victims must be aware of this. If you've been assaulted by an officer, speak to a lawyer about your options.
It is also important that victims understand that the failure of the police department, the police chief, or the police officer's employer to take action in relation to your sexual assault claim does not mean you cannot sue or seek civil damages for the abuse. Compensation for victims is not the decision of the police department.
Settling out of Court
Given the risk involved in litigation (since both sides don't know for sure whether they will be successful), and the fear of damage to a company's/government's reputation, many cases do settle out of court. Settlement amounts will depend on the facts of the case, the strength of the evidence, and the legal opinion of the lawyers on both sides as to how the law would be applied to the facts in court.
Lawyers will thus examine cases like Bailey, along with other sexual assault cases with similar factual scenarios in an attempt to value the case. Given the expense of taking a case to court, sometimes the corporation will want to avoid the costs of lawyers' fees and thus agree to a settlement. Of course, the larger or wealthier the entity, the less a concern this becomes (especially if their reputation is on the line).