There is a range of meaning to the term “sexual abuse” or “sexual assault” in law, depending whether the context is criminal, civil, or regulatory.
Criminal: A patient can consent, at law.
In the criminal context, the offence of sexual assault is made out if there is sexual contact without the voluntary consent of both parties.
A patient can consent.
To establish guilt, the Crown must prove its case against the defendant “beyond a reasonable doubt”.
Civil: A patient can consent, at law.
In the civil context (i.e.- a lawsuit in the civil courts, typically for monetary compensation), the definition of sexual assault is sexual contact without the voluntary consent of both parties.
A patient can consent.
To prove liability, the plaintiff must prove the sexual contact without consent “on a balance of probabilities”.
College Regulatory Proceeding: A patient can never consent, at law.
In the regulatory context (i.e., at a discipline hearing before a regulatory College under the RHPA), the definition of sexual abuse is simply types of sexual touching (or even sexual comments) with a patient.
The patient cannot consent as a matter of law.
A patient remains a “patient” within the definition of the RHPA for at least a year (possibly longer if so prescribed) – so cannot consent as a matter of law throughout this period of time.
The College prosecutor must prove his or her case “on a balance of probabilities” based on “clear, convincing and cogent” evidence.
In some cases (depending on the nature of the sexual touching), the mandatory penalty is revocation of the professional’s certificate of registration. This penalty is mandatory, even if the touching would not meet the definition of either civil or criminal sexual assault – as a patient cannot consent, as a matter of law.
Health professionals faced with allegations of sexual abuse or assault – in any of the above contexts – must take the matter very seriously and seek legal advice at the earliest possible opportunity.
At Wise Health Law, we have vast experience and expertise assisting health professionals in the civil and regulatory contexts, and have an established network of criminal lawyers with whom we work. For the convenience of our clients, we have offices in both Toronto and Oakville, Ontario, and are easily accessible. Contact us online, or at 416-915-4234 for a consultation.