Measuring Pain: Quantifying Damages in Civil Suits for Sexual Assault

Abstract

In this paper, I contend that in civil suits for sexual assault, the principles relating to assessment of non-pecuniary damages articulated by the Supreme Court of Canada in Andrews v. Grand & Toy Alberta ought to be applied through the filter of an empathic understanding of the injury that has been suffered. Some judges and jury members will already possess the capacity to exercise such an understanding. Others may be able to learn. I argue that the best way to bring home the seriousness of the injuries inflicted in sexual assault cases and their devastating long-term effects is not through the expert evidence of psychologists or psychiatrists so favoured by the courts, but through personal narratives, primarily the plaintiff’s courtroom testimony. Further, I argue that the narratives of others evoking similar experiences provide interpretive tools crucial to better preparing legal decision-makers to listen. I draw from the insights of a developing tradition of legal storytelling in suggesting that exposure to such narratives has the potential to enable decision-makers to empathize with the suffering of plaintiffs in sexual assault cases, however removed that suffering might be from their own experience. Such empathy is an essential first step in creating a legal framework for adequately quantifying damage awards.

Keywords: Tort Law, Sexual Assault, Damage Quantification, Non-Pecuniary Loss, Empathy, Narrative, Storytelling, Law and Literature, Feminist Legal Theory