Understanding Sexual Assault and Battery in Civil Litigation: A Series
- Apr 1
- 5 min read
Updated: Apr 8
Part 1: The Legal Elements of Sexual Assault and Sexual Battery
By: Gillian Hnatiw & Co.
In recognition of Sexual Assault Awareness Month, this series summarizes the current civil law in Canada surrounding sexual assault and battery, with the aim of making the law more transparent and accessible for all. For more information or representation related to your legal claim, contact Gillian Hnatiw & Co. here.
Sexual violence is often discussed in broad terms, but the civil legal system relies on precise legal definitions that can be difficult to understand without legal training. For survivors, that complexity can create real barriers to understanding their rights and options. This article explains how Canadian civil law defines and recognizes sexual assault and sexual battery. The goal is not to reduce lived experiences to legal terms, but to make the law more transparent and easier to navigate for those who may need it.
When people describe sexual violence, they often use the term “sexual assault”. Under Canadian civil law, however, the Court treats “sexual assault” and “sexual battery” as two different legal claims (i.e., torts) that are actionable in a lawsuit.
To better understand how the courts recognize sexual assault and battery, one must step back to the foundational torts of “assault” and “battery”.
The Torts of Assault and Battery
The tort of assault occurs when a person causes another person to reasonably believe that they are about to experience immediate, non-consensual physical contact, while the tort of battery involves the actual infliction of non-consensual contact.[1] This is a civil law distinction and should not be confused with criminal law, where sexual assault does involve unwanted touching. In civil law, harm can be recognized even where no physical contact occurs.
Feeling threatened, trapped, or intimidated can be legally recognized harm. The tort of assault protects a person's mental security and well-being by making actionable conduct that causes psychological harm, even if it isn’t accompanied by actual physical contact or physical injuries. To establish the tort of assault, a person must prove that the other person’s conduct (including their words and/or actions) were intentional, and that their conduct made them apprehensive that harmful or unwanted contact would happen.[2] For example, using one’s body to block another person’s movement or surrounding that person in a hostile or threatening manner can be assault. This conduct can take away another person’s sense of safety and control, and the law treats that seriously.
The tort of battery is designed to protect an individual's personal autonomy and right to exclusive control over their person.[3] The law recognizes that unwanted physical contact interferes with an individual's right to control their own body and their physical integrity and that this interference is harmful.
To put it plainly, in civil law, assault is about fear or threat. Battery is about physical contact. You can have assault without being physically touched, but battery will only apply once there is physical contact.
Though assault and battery are two distinct torts, they often occur in rapid succession and are frequently claimed together in civil actions. This is particularly true in cases of sexual violence, where threatening conduct and non‑consensual physical contact are often part of the same course of events.
Sexual Assault and Sexual Battery
Civil claims that are based on a “sexual assault” often involve both assault and battery.[4] As with assault and battery, sexual assault occurs upon the threat of unwanted sexual contact, and sexual battery occurs when the unwanted sexual contact is carried out.
To prove sexual battery, a person must show that the other person (i) intentionally applied, (ii) force or physical contact of a sexual nature, (iii) directly to their person.[5]
In response to this type of claim, the defendant can prove that they acted with the individual’s consent. It is important to note that the onus is on the defendant to prove consent and not on the plaintiff to prove lack of consent. This is often misunderstood.[6] Furthermore, consent is legally ineffective where "there was such a disparity in the relative positions of the parties that the weaker party was not in a position to choose freely."[7] In relationships involving authority, control, or dependence, the law assumes that true consent is not possible. Where extreme power imbalance exists in a relationship, any ostensible consent will be vitiated.[8]
For that reason, children are legally incapable of consenting to sexual activity. In particular, courts have found that the age of consent as set out in the Criminal Code (being 16 years old) applies to civil sexual assault cases as a matter of public policy to protect children from sexual exploitation.[9]
By grounding sexual violence claims in principles of bodily autonomy, consent, and power, civil law offers survivors one pathway for acknowledging harm and seeking redress against perpetrators of sexual violence. Clear information matters, and survivors deserve access to it without having to decode the law alone.
Gillian Hnatiw & Co. is a leading firm in civil sexual assault and sexual battery litigation. For experienced representation and clear legal guidance, contact Gillian Hnatiw & Co here.
The team at Gillian Hnatiw & Co. thanks student Bertina Lou for her contribution and assistance with this article.
If you or someone you know has been affected by sexual violence and requires immediate support, confidential help resources are available in your community.
This article is provided for general informational and educational purposes only and does not constitute legal advice. Reading this content does not create a solicitor‑client relationship. Laws and legal procedures vary depending on individual circumstances and jurisdiction. If you require legal advice regarding your specific situation, please consult a qualified legal professional.
[2] Ibid.
[4]Smith v. Nagy, 2025 ONSC 4629 at 92, referencing R.P. v. J.R., 2007 CanLII 37693 at paras 68-69.
[5] PP v. DD, 2017 ONCA 180 (CanLII) at paras 71-72; Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24 (CanLII), [2000] 1 SCR 551 at paras 8, 11-13, 15.
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