Young Age Does Not Excuse Liability of Perpetrators in Civil Lawsuits for Sexual Assault
Criminal law precludes children under the age of twelve from liability. The same is not true for civil claims. While young age is a factor in assessing liability for sexual assault, a perpetrator under twelve can still be held liable in a civil claim.
The Supreme Court of British Columbia decision in CLH v. KAG, 2022 BCSC 994 has confirmed there is no age limit under which children are automatically excused from civil liability for intentional torts, such as sexual assault. In contrast, under criminal law, children under twelve are absolved of liability. This B.C. decision explains that a child’s age may be a factor in determining civil liability as a child’s age may demonstrate they were incapable of forming the intent required to commit an intentional tort.
Civil liability of children tends to attach at a much earlier age than criminal responsibility. However, children have been excused from civil liability in instances where the courts held that the children were too young to have acted with intention. The defendant in the B.C. case was an adult at the time of trial, but was found to have sexually assaulted his sister when he was aged 10 to 16. His sister was aged 6 to 12 at the time. However, the defendant did not assert he was incapable of forming the necessary intent for the tort of sexual assault nor was this finding made by the trial judge.
From a damages perspective, the circumstances of the parties at the time of the abuse in question—which includes their respective ages—is a relevant consideration. The court in the B.C. case held that while the defendant’s young age was a relevant factor, it did not justify an award significantly below the range of damages awarded in other sexual assault cases. Instead, the consequences for the plaintiff of his wrongful behaviour were given primacy.
The court found the detrimental impact of the defendant’s sexual assaults on his sister was substantial, and it awarded non-pecuniary damages of $200,000. Of note, however, the court declined to award punitive damages because the defendant was a child at the time, and it found the denunciation and deterrence aim of punitive damages awards would not be achieved in the circumstance of a child perpetrator of sexual abuse.
While this issue has not been considered in Ontario in recent years, in 1967, the Court of Appeal for Ontario upheld the decision of the trial judge in Tillander v. Gosselin, 1966 CanLII 231 (ONSC) where the court declined to find a 3-year-old liable for physical assault. This was on the basis that a normal 3-year-old could not formulate the genuine intent to do harm or to perform the act that caused the injury.
The takeaway here is that youth at the time sexualized misconduct was committed does not, on its own, insulate that person from civil liability for significant damages. This is an important consideration for plaintiff and defence lawyers alike to keep in mind.
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