Taking abusers to court
In the third of a series of articles on sexual harassment and violence in the Jewish community, the Jewish Independent speaks with lawyer Megan Ellis, Q.C.
Megan Ellis is one of the first lawyers in Canada to have devoted a significant part of her practice to pursuing claims on behalf of adult survivors of sexual assault and childhood sexual abuse.
In 1976, Ellis began volunteering at a rape crisis centre in Vancouver. This led to jobs working at rape crisis centres in Vancouver and in London, England, from the late 1970s to early 1980s.
“I was interested in law,” she said. “I always have been. It was my intention to become a lawyer eventually.”
Ellis passed the bar in 1988 and went into civil claims. In 1992, she and her partner led a successful challenge to the time limitation in Canada. As a result, in 1993, the law was changed in British Columbia, and the province became the first jurisdiction in Canada to remove the time limit for survivors to bring claims against perpetrators and institutions regarding sexual abuse.
In that groundbreaking case, an uncle was charged with sexually abusing several girls in the family over several decades from the 1950s to 1970. The girls were toddlers – as young as 2 years old – when the abuse began, and it continued into their early teens.
Many more cases have since followed.
“I have children’s parents who call me and ask what to do when their kids have been sexually abused,” said Ellis. “I discuss with them what they want their outcome to look like. Often, they haven’t decided if they want to go through a criminal process or not. So, they have to make that decision initially. If they decide they want to go through a criminal process, I ask them to wait until that is concluded before commencing a civil process – unless there are unusual circumstances, like it looks like the perpetrator might die, move all their assets to a Swiss bank account, or something like that.”
Once a decision is made to proceed through the civil system, Ellis collects all the relevant documents, such as income records, counseling records, medical records and educational records – as much information as possible. She then reviews everything and starts the process of drafting the legal documents, filing them and serving them to the perpetrator or institution.
“One thing I always discuss is whether or not that should be preceded by a demand letter,” said Ellis. “Sometimes, I collect all the information and put together a settlement letter in hopes the person will settle and pay out the claim, rather than go through the more public civil system.”
The settlement letter states what the accused did, that these are the consequences and the accuser wants X amount of dollars paid within a given time frame. The letter also states that, if the accused does not pay, the accuser will sue.
If the perpetrator does not settle, one can expect the legal cost to run between $10,000 and $15,000. Ellis advises her clients to verify that the perpetrator has assets.
“There are many people I have to tell, ‘Look, I do not doubt what you’re telling me at all, but it might appear that the perpetrator doesn’t have assets,’” said Ellis. “And there’s no point suing someone who doesn’t have assets.”
Claimants also need to take into consideration that, to date, the damages awarded for sexual abuse have been very low; in some cases, similar to what someone would get for mild whiplash from an accident.
“They don’t actually recognize the long-term effects of one incident, depending on the circumstances,” said Ellis. “They’ve been getting better over the years, but there’s still quite a long stretch before judges understand the very serious long-term implications.… There are 25-year-olds who get raped and it has a profound impact on the rest of their lives. The social reaction to being raped and the effects that it has are long-term. They are permanent. I think it’s fair to say that anyone who’s been raped has been permanently changed by that experience.”
In British Columbia, a lawsuit can take two to three years from start to finish. As for privacy, one can expect a ban on publication, though that is not guaranteed. Both the court records and courtrooms are publicly accessible.
If one is determined to confront their perpetrator, they may have a hard time finding representation. Lawyers who take on such cases are overburdened.
“My instructions for my staff are that I am booked for no more than four consultations per week,” said Ellis. “That was two or three years ago. Now, I’ve cut off … I’m not able to take more. I have enough now to keep me going for quite some time and I can’t possibly take any new cases. So, it’s gone from four per week to zero. And I’m not keeping tabs on all the people I’m turning away. I give other names, but I’m not sure of who’s taking these cases at the moment.”
Ellis has been instrumental in changing the law that allowed perpetrators to claim bankruptcy to escape paying the judgment.
“What started to happen in the first few years I was doing this is that the perpetrators would fight the cases and then spend all their money defending themselves,” said Ellis. “And then, they’d end up going bankrupt and walk away from the judgment.
“I was involved in amendments to the bankruptcy and insolvency act, which meant that you didn’t get rid of a judgment for assault or sexual assault just by going into bankruptcy – the judgment survives the bankruptcy. So, they may have gotten rid of their assets, but they haven’t lost their capacity to earn income, their inheritances … there are ways to go after them. The perpetrator’s thinking before was that they’d rather pay lawyers than pay their accusers, thinking that, then, it’ll be gone and they won’t have to worry about it.
“Funnily enough, I haven’t had a case where the perpetrator has gone into bankruptcy since.”
Since the #MeToo movement, Ellis has noticed a change in how various companies and institutions deal with their responsibility, a shift to more appropriate responses to allegations of abuse. The movement also has helped instil in people’s minds is that, typically, when it comes to sexual abuse, there is not just one victim, there are many.
“This is because there are all kinds of efforts the perpetrator makes to silence their victims,” said Ellis. “Societal mores are such that it doesn’t take a whole lot, because there’s fear and disbelief … and then, the perpetrator adds to it by saying, ‘If you ever tell anyone, you won’t be believed,’ etc.
“One thing that is particularly problematic in institutions is that they generally turn a blind eye in order to protect themselves … unless somebody’s standing on their doorstep with a picket sign.
“Essentially, what’s happened is that someone is now standing on their doorstep with a picket sign. Many of the institutions I’ve sued, there were, I believe, people, who knew but didn’t come forward, partly due to consequences for workers, teachers, social workers … for coming forward and making an accusation. They don’t want to take it on.”
Institutions are learning the hard way that it’s more cost effective for them to educate their employees about what abuse is and to report it.
“One place where there is still a lot of abuse is in the workplace,” said Ellis, giving the example of sexual harassment. “But, that’s an employment law context and I personally have never dealt with those cases.”
Rebeca Kuropatwa is a Winnipeg freelance writer.