Sexual Wrongdoing: Do the Remedies Reflect the Wrong?

Sexual Wrongdoing: Do the
Remedies Reflect the Wrong?

Elizabeth Adjin-Tettey^*

Introduction

Feminist theorising has helped to unpack the relationship between law and society and the ways in which they influence and draw on each other in the legal and social imagination. Examples include the marginalisation of women’s experiences, construction of gender roles, and the perception and valuation of injuries that predominantly affect women (Conaghan 2003: 181; Wishik 1985; Chamallas 1997). It is also important to be attentive to intersecting factors that determine one’s experiences in law and society in addition to gender, such as race, (dis)ability, sexual orientation, religion, etc, that enhance vulnerability for sexual victimisation.

Sexual victimisation may be experienced irrespective of gender and socioeconomic status. However, perpetrators often target society’s most vulnerable; persons lacking social, economic and political power. Victims are overwhelmingly female and/or vulnerable on other grounds, such as childhood, disability, racialisation, socio-economic location and institutionalisation (Brennan and Taylor-Butts 2008: 12–23; British Columbia Law Institute 2001; Adjin-Tettey 2006; Feldthusen 1994; Martin 1994; Statistics Canada 2006: 8, 13, 36; R v Osolin [1993]: [165]–[166]). Commenting on the nature and effect of sexual assault on victims, Cory J noted:

It is therefore important that the process of seeking redress and remedies provided for sexual interference should not exacerbate survivors’ experiences of marginalisation. Rather, their interests should be valued and protected in ways that promote therapeutic outcomes for survivors (Seidman and Vickers 2005: 471–3). This may require a re-conceptualisation of the purpose of tort remedy beyond the current focus on restitutio in integrum, which is grounded in corrective justice. Harms from sexual wrongdoing tend to be intangible and do not always map onto traditional notions of tortious injury. Hence, a broader view of the goal of tort remedy that is attentive to survivors’ experiences of victimisation is required to ensure remedies are meaningful (Watson 2010: 211, 212; Pryor 2003).

The tort system is an inefficient mechanism for compensating personal injury victims; access is limited to those injured by the fault of others, who can afford the financial and emotional cost of initiating and maintaining civil suits, and are able to prove their case on a balance of probabilities. This huge expenditure of resources often does not directly benefit victims (Cane 2006: 22–5), and may not be the most appropriate avenue for remedying sexual victimisation.²

Notwithstanding these concerns, a tort claim may be the most realistic avenue for redress (Godden, this volume). Although criminal prosecution constitutes public recognition of survivors’ victimisation and is important in responding to sexual wrongdoing, it may not be an adequate or effective response to sexual violation and may leave survivors feeling re-victimised (Katz 2010; Roberts 2009; Doe 2003: 70–2; Adjin-Tettey 2006: 26–7; Comack and Peter 2005: 297–8). Furthermore, criminal prosecution may not be an option, for example where the perpetrator is deceased.³ Meanwhile, tort damages can be enforced against the perpetrator’s estate, assuming solvency,⁴ employers by way of vicarious liability, and third parties, such as employers, parents and partners through negligence claims where there has been direct wrongdoing enabling the victimisation, such as inadequate safeguards (Hockley v Riley [2007]: [14]; Blackwater v Plint [2005]: [20]; J(LA) v J(H) [1993]; KK v KWG [2006]; KM v Canada (Attorney General) [2004]).

Feminist scholars and activists continue to draw attention to the nature and consequences of sexual victimisation, including its gendered nature and its tendency to occur in unequal power relationships, constituting abuse of vulnerable parties. Additionally, the vulnerable party is often marked by intersecting grounds of marginalisation such as gender, class, racialisation, disability, childhood/youth, etc. There is increasing awareness and sensitivity to survivors, and recognition of the need for improved access to justice and effective compensation (Adjin-Tettey and Kodar 2011; Bazley v Curry [1999]: [30]). For example, the potential of power differential to vitiate apparent consent has been recognised in many cases (Norberg v Wynrib [1992]; TO v JHO [2006]). Also, obstacles to initiating claims in a timely manner have been acknowledged, resulting in generous constructions or elimination of limitation periods for sexual wrongdoing. Further, the expanded scope of vicarious liability based on enterprise risk allows plaintiffs to sue third parties who did not authorise the abuse (Bazley: [22], [37]–[38], [41]).⁵

Attitude towards compensation for non-pecuniary
losses/hedonic damages

In this section, I ask whether improved access to the tort system and broader scope of liability for sexual victimisation has resulted in effective remedies for survivors. This inquiry requires a broader look at the nature of harms arising from sexual wrongdoing, attitudes towards compensation for those injuries and whether there is a risk of inadequate compensation for victims.

Sexual victimisation may result in physical and/or emotional or psychological injuries, which may be mostly intangible. Sexual wrongdoing can have serious short- and long-term consequences for survivors, and are a source of distress, unhappiness and loss of enjoyment of life. In addition to physical injuries sustained during the assault, survivors are more likely to experience long-term numerous physical ailments, compared to those who have not been similarly victimised (Campbell et al 2003; Golding 1999; Norberg: [56]; Evans v Sproule [2008]: [122]). Long-term harm may also be psychological, affecting self-esteem, feelings of safety, ability to focus and obtain education, difficulties maintaining employment and interpersonal relationships, mistrust of people and authority figures where the abuse was perpetrated by persons in such positions, etc. Survivors of childhood sexual abuse often suffer from sexual dysfunction and other sex-related issues later in life (Walser and Kern 1996; Luster and Small 1997; Stock et al 1997), as well as from other general psychological problems (Briere and Elliott 1994; Cheasty et al 1998; Luster and Small 1997; Trickett and Putnam 1993; Banyard and Williams 1996). These types of harms often give rise to damages for non-pecuniary losses (general and aggravated) and non-compensatory damages (punitive damages) in addition to medical expenses (BCLI 2001: 15–16, 38; Daylen et al 2006: 389–90; Norberg: [56]–[58]; CM v Canada (Attorney General) [2004]; EDG v Hammer [1998]: [12], [57], affirmed [2003] 2 SCR 459).

Critics have questioned both the basis and quantum of compensation for intangible losses, which are perceived to defy objective proof and quantification. Intangible losses are viewed as being suspect, prone to exaggeration and dependent on variables unconnected to the defendant’s wrongdoing (King 2004: 177; Ipp Report 2002: 13.20, 13.21), resulting in their devaluation.⁶ This gives rise to a potential for under-compensating survivors of sexual wrongdoing as compensation depends on the effect of victimisation on the survivor, which may often be intangible (MA v Canada (Attorney General) [2001]: [86]–[93], varied on other grounds: 2003 SKCA 2, 227 Sask R 260). There is support for compensation for intangible losses where plaintiffs also suffer tangible/physical injuries, and they may recover relatively higher damages for such losses (Atiyah 1997: 18).

Compensation for intangible losses must be ‘fair’ but not provide ‘full’ compensation as damages for pecuniary losses (Daylen et al 2006: 390–1; Andrews v Grand and Toy Alberto Ltd [1978]: [87]–[90]; Lindal v Lindal (No 2) [1981]: [12]–[26]; Ipp Report 2002: 13.3). This understanding of the goal of compensation for intangible losses underlies the functional approach that determines availability and quantum of non-pecuniary damages in Canada. Awards are limited to what is necessary to provide solace to the plaintiff (Berryman 2010: 167). Compensation is considered futile, an unnecessary burden on the defendant, and ultimately society, unless the amount can assist the plaintiff in dealing with the effects of the injury (Ogus 1972: 17). These views devalue intangible injuries and privilege tangible injuries, resulting in disproportionate effects for plaintiffs whose injuries are mostly intangible (Finley 2004: 1279).

Incommensurability presents several challenges to compensation for intangible losses. If non-pecuniary damages are antithetical to the legal and economic theories that justify tort law, why do courts continue to award compensation for such losses? According to Berryman:

The incommensurability argument against compensation for intangible losses stems from the corrective justice underpinning of tort damages that seeks to restore plaintiffs to their status quo ante. As Radin (1993: 68) notes, ‘[i]f corrective justice requires rectification, and if injury cannot be translated into money, how can payment of money ever amount to rectification so as to satisfy the demands of corrective justice?’ Also, Berryman (2010: 180) suggests that while damages for intangible losses have utility by allowing the plaintiff to purchase things that can provide solace for their losses, this form of compensation reflects distributive and not corrective justice. It follows that compensation for intangible losses do not easily fit within the corrective justice justification of tort liability. According to King (2004), the incommensurability of these losses results in unpredictable outcomes, disparity in awards and undermines optimum deterrence. As well, King (2004: 180–5) argues that the potential for large awards for intangible losses threatens the loss distribution function of the tort system.⁸

While incommensurability could justify not providing compensation for intangible losses, the opposite is equally sustainable. Arguably, since no amount of money can provide true substitutes for intangible losses, it follows ‘that only very substantial awards could properly recognize the reality of the loss’ (BMG v Nova Scotia [2007]: [122]). There is nothing self-evident in choosing the former position to limit or exclude compensation for non-pecuniary losses. In fact, such a position masks the ideological bias of traditional tort law that favours tangible injuries and/or those that affect a person’s public image such as defamation, as the legitimate consequence of tortious conduct.⁹ The traditional view is premised on an assumption of a normative understanding of what it means to restore plaintiffs to their status quo ante. While the lack of common understanding does not justify rejecting the restorative principle, it does undermine the incommensurability argument against the availability of compensation for intangible losses and the privileging of tangible harms (Pryor 2003: 662, 664).

An extension of the futility argument against compensation for intangible losses is that such compensation should only be forward looking because money is of no use for intangible harms the plaintiff has already endured (Chapman 1995: 421). However, as Ogus notes, this would give defendants incentives to delay resolution of claims and is unfair for plaintiffs. Hence, compensation must necessarily include past and future losses, even if this is inconsistent with the conceptual basis of the award (Ogus 1972: 16). This is reflected in practice, as courts do not separate compensation for past and future intangible losses. This is particularly important in historical abuse claims where plaintiffs’ losses may have largely occurred in the past.

Arguments have also been raised about the ephemeral nature of intangible losses and whether they should be compensable. Relying on the robustness of human nature and the tendency to adjust or ‘rebound’ after adversity, some psychologists and legal scholars question the enduring nature of non-pecuniary losses, and hence the need for compensation, especially in relation to future losses. Pain and suffering, loss of enjoyment of life and loss of amenities that do not impact the plaintiff’s financial losses, such as working capacity and care costs,¹⁰ are perceived to diminish over time and eventually be eliminated. It is expected plaintiffs will adjust to their victimisation with time, thereby eliminating or diminishing the need for long-term compensation for such losses.

Arguments about intangible losses tapering off over time are often based on evidence of psychologists who testify the plaintiff’s injuries should be short-lived. Also, judges sometimes substitute their own opinions that the victim’s injuries should be short-lived in place of opposing expert evidence (Feldthusen 1994: note 111; SMAB v JNH [1991]; Gray v Reeves [1991]: [118]; CCB (Litigation Guardian of) v IB, [2009]: [36]). There tends to be a general mistrust of survivors’ (mostly women) descriptions of their subjective experiences of the consequences of victimisation, especially when uncorroborated by experts. This may be due in part to the perception that women tend to exaggerate the consequences of their victimisation.¹¹ Even where there is evidence the plaintiff’s injuries have persisted longer than ‘usual’, plaintiffs are sometimes blamed for failure to seek treatment or deal with the effects of their victimisation in a timely manner (Glendale v Drozdzik [1990]: [16], [19], varied on other grounds: [2008] 1 SCR 27; Adjin-Tettey 2006: 52).

Perceiving intangible losses as short-lived means at most, compensation for such losses should be modest. To do otherwise may provide compensation for a period when the plaintiff no longer experiences those losses, or at least not to the same extent as at the time of judgment, and would constitute a windfall contrary to the compensatory goal of tort damages.¹² Meanwhile, expert accounts often come from a place of power and privilege. In addition to the experiential gap, these kinds of expert testimonies tend to be dispassionate perceptions of the effects of the plaintiff’s victimisation.

Even assuming merits of the resilience rationale for denying or limiting compensation for intangible losses, it may not be justifiable in situations of conduct known to frequently result in long-term intangible injuries, such as sexual victimisation. This is not intended to pathologise survivors of sexual wrongdoing. Rather, it acknowledges the reality of their victimisation and the need for a contextualised response to survivors’ claims for compensation while also bearing in mind the potential for exaggeration and malingering intended to attract higher damages (Godden, this volume).

Compensation argument

It has also been argued that emphasis should be on compensation for tangible harms rather than intangible harms. Consequently, there is a need to expand the bases and/or scope of compensation for tangible losses, and in return, limit or eliminate compensation for non-pecuniary losses (Abel 2006: 315–20; Ogus 1972: 17; Hartling v Novia Scolta (Attorney General [2009]: [88]–[94]). This is the model used in many no-fault systems, such as workers’ compensation and no-fault automobile insurance regimes, and is sometimes seen as a better and more efficient way to spend society’s limited resources (Cane 2006: 166). The compensation argument is implicitly premised on the hierarchy of harms and the alleged superiority of tangible compared to intangible harms, the incommensurability of intangible losses as well as the view that such harms are easily feigned and often not susceptible to scientific proof.

Further, the compensation argument is rooted in the idea of paramountcy of care – that it is better for plaintiffs to be adequately compensated for their pecuniary losses, especially care costs. There is no justification for additional compensation for intangible losses when that money would serve no useful purpose. At best, compensation for intangible losses must be modest (Iwanik v Hayes [2011]: [136]). Adoption of the functional approach by the Supreme Court of Canada in the 1978 personal injury trilogy was partly justified on the basis of the paramountcy of care and the desirability of not burdening society with compensation for intangible losses (Andrews: [87]–[90]).¹³ Given the need for ‘moderation’ in the award of damages, generally because the public ultimately pays for these damages, modest non-pecuniary damages may be justifiable where the plaintiff has received substantial compensation for their tangible losses. However, the paramountcy of care argument is not justifiable in cases involving little or no tangible losses where the plaintiff has not otherwise received substantial damages.

Ex ante insurance argument

Critics have also invoked economic rationality as a reason for not awarding full compensation for non-pecuniary losses. Insurance is not something the plaintiff would have rationally purchased in advance as evidenced by the fact that there is no market for intangible losses. Rather, most rational people will insure against tangible losses such as lost income, which justifies compensation for such losses (Chapman 1995: 410; Atiyah 1997: 16). The insurance justification for modest or no compensation for intangible losses entails a privileging of tangible harms over intangible losses and presupposes that people will choose only to protect themselves against the former.

Meanwhile, how much a person would be prepared to spend to avoid intangible harms depends on their own financial status, which will vary from person to person. Thus, the ex ante insurance argument cannot be used to justify eliminating or diminishing compensation for intangible losses. Perhaps a better comparator might be how much an individual would be willing to accept in return for incurring the harm in question. However, this is still inadequate for determining availability and quantum of compensation for intangible losses because the individual’s socioeconomic location is likely to influence that decision, with wealthy people demanding a higher price compared to poorer people, thereby resulting in the perception of unequal moral worth. Ultimately, a regime that privileges tangible losses over intangible harms disadvantages those who suffer mostly non-pecuniary losses as is the case for survivors of sexual wrongdoing (Finley 2004: 1263). Further, the absence of insurance for intangible losses may in fact be a reason for compensation for such losses through the tort system and not its abolition.¹⁴

Functional approach argument

Similar to the incommensurability argument, the argument here is that monetary compensation for intangible losses cannot realistically restore a plaintiff to her status quo ante and is therefore not a good use of money, and also raises the problem of quantification (King 2004: 172–4, 180; Atiyah 1997: 15–16; Dobbs 1993: 398–9; Fischer 1999: 383; O’Connell 1981: 341–2; Radin 1993: 70). The Supreme Court of Canada acknowledged the impossibility of money to restore intangible losses in the 1978 personal injury trilogy, which also served as the basis for adopting the functional approach by which the purpose of the award is to give the plaintiff solace by providing substitutes for what has been lost rather than attempting to compensate the loss (Andrews: [87]–[90]; Lindal; Abbott v Sharpe, [2007].¹⁵ The functional approach calls for an individualised assessment of the effect of the defendant’s wrongdoing on the plaintiff and, more importantly, the amount necessary to provide her solace subject to the rough upper limit for non-pecuniary damages set in the trilogy. This requires evidence that non-pecuniary damages can make a difference in the plaintiff’s situation through the purchase of some amenities.¹⁶

The functional approach for assessing non-pecuniary damages was adopted in the context of personal injury cases arising from motor vehicle-related accidents or, more generally, negligence claims. It has now been accepted that the functional approach is equally applicable in assessing non-pecuniary damages in sexual wrongdoing (battery) cases. However, the assessment requires a contextual approach that remains attentive to the nature of the injury and the purpose of the award in relation to that injury in particular circumstances (BMG: [124]–[126]). In claims for sexual battery, the purpose of the award is to provide solace for the victim’s pain and suffering and loss of enjoyment of life, to vindicate the victim’s dignity and personal autonomy, and to recognise the humiliating and degrading nature of the wrongful acts (BMG: [127]–[132]; Evans: [124]). Factors relevant to the assessment of non-pecuniary damages include the plaintiff’s age at the time of the sexual interference and her vulnerability, the nature of the relationship between the plaintiff and the perpetrator, that is, any power imbalance or trust relationship, the nature and frequency of the abuse, consequences for the plaintiff, etc (Plint: [89]; BMG: [133]–[135]; Evans: [126]).

Commodification anxiety

Another argument against the availability of damages for intangible harms is that it commodifies such interests by trying to put a monetary value on aspects of human life that are priceless and treats these interests as alienable commodities that can be exchanged in the capitalist market contrary to the sacredness of human life, entailing a risk of normalising commodification and extending it to other aspects of life (Abel 2006, referring to Radin). A variant of the commodification anxiety is the issue of moral panic about the corruptibility of intangible interests when such interests are brought into the commercial sphere or subject to market analysis (O’Byrne 2009; Bandes 2000).

Arguments about commodification, inalienability and pricing the priceless tend to be made mostly in relation to issues that predominantly affect women, such as reproductive harms, surrogacy, egg donation, etc. Similarly, distributive justice has been evoked to justify non-compensation for some harms that women disproportionately suffer, such as the cost of raising a child conceived and/or born due to the negligence of health care professionals (McFarlane v Tayside Health Board [1999]; MY v Boutros [2002]; Bevilacqua v Altenkirk [2004]; Mummery v Olsson [2001]), and equality justice claims by women (Newfoundland (Treasury Board) v NAPE [2004]).

Further, the desire to justify compensation only where there is a monetary equivalence of the loss in question is grounded in an instrumentalist view of tort damages that treats such interests as fungible commodities with a consequent dehumanisation of intangible aspects of human life. Also, limited or no compensation for intangible losses means damages awards do not reflect the true social costs of the injurer’s conduct; compensation is determined not by corrective justice or the plaintiff’s entitlement to have the defendant set things right. Rather, the innocent plaintiff is made to bear part of the costs resulting from the defendant’s wrongdoing. This, coupled with the often depressed damages for marginalised plaintiffs, the prime targets for sexual victimisation, exacerbates the vulnerability of such persons to sexual abuse, devalues their bodily integrity and security, and undermines efforts to address a serious social problem.¹⁷ At the very least, compensation for intangible losses reaffirms the societal interest in and respect for values such as bodily security and autonomy even if the defendant’s wrongdoing does not result in tangible injuries and no monetary equivalent is possible (Goldberg 2003: 525, 527; Radin 1993: 61).¹⁸ It also recognises the need for restoring normative equilibrium (assuming an egalitarian status quo) where one person has wrongfully interfered with another’s protected interests as mandated by corrective justice (Zipursky 2003: 695). A strictly economic analysis for the justification of monetary damages ignores the disruption in the plaintiff’s life caused by the defendant’s wrongful conduct regardless of the form of the loss and whether it has currency in the market. Such an approach also offends a law and economic analysis of tort law because the wrongdoer does not fully bear the consequences of their wrongdoing and there is no indication that such a position maximises the overall societal welfare. In fact, externalisation of some of the consequences of sexual victimisation makes not just the victim, but society as a whole, worse off.¹⁹ Further, an approach that undervalues intangible harms and perpetuates systemic discrimination can hardly be considered just from a distributive justice perspective.