Former Vancouver Canuck Jake Virtanen just got acquitted of sexual assault by a jury in B.C. Supreme Court. He lost his job as a professional hockey player after facing allegations of non-consensual sexual contact by a young woman, who eventually made a complaint with law enforcement. After investigating, the Vancouver Police charged Mr. Virtanen with assaulting the alleged victim, identified only as “MS,” but for some reason, it took the Vancouver police five years to bring criminal charges.
In a case like this, should the acquitted have a right to sue for damages if he can prove that the allegation caused him to lose his job? Think about the recent Johnny Depp case, where Depp was able to win a judgment for $10.35 million against his ex Amber Heard, who defamed him with allegations of assault in a widely distributed op-ed in the Washington Post.
What not guilty really means
But just because someone is found not guilty, it doesn’t mean they didn’t do it. Being found not guilty doesn’t mean you were found innocent. Judges never find someone innocent. In order for a prosecutor to prove someone is guilty, they need to prove the allegations beyond a reasonable doubt. It’s a high burden to meet in any case, where a prosecutor needs to show the person undoubtedly committed the crime (both the act and they had the mindset to do so.)
But if the prosecutor can only show that it was, say, 70 percent likely that Virtanen committed the crime, then a properly instructed jury simply can’t return a verdict of guilty. Indeed, it’s impossible for me or anyone else to know what actually happened in the Westin Bayshore Hotel room on Sept. 26, 2017, because I certainly wasn’t in the room with Jake and “MS.”
I wanted to find the court’s written decision, but because it was a jury trial and he was found not guilty, there are no reasons for the court’s judgement to be posted online. So if you weren’t in the courtroom, then it’s hard to gauge the veracity of the evidence given, although the trial received considerable media coverage.
Jake Virtanen acquitted
With that in mind, I am not comfortable saying that Jake Virtanen should file a lawsuit now that he has been acquitted, given that he still may have committed assault, but the crown just couldn’t prove it. However, the case and its result raise important questions about how both accusers and the accused in sexual assault cases can seek recourse in the absence of a favourable verdict in a criminal trial.
While false allegations of sexual assault are rare, let’s say there was another NHL player, and they were wrongly accused of assault and lost out on a $10 million contract because of the allegations. They should sue both the NHL team that let them go and the accuser. Of course, the accuser likely won’t have $10m, but the NHL team of course does.
When it comes to sexual assault allegations, it may seem like people are guilty until proven innocent, which goes against the fundamental principles of justice. Ideally, companies should wait until someone is found guilty before firing them, but the court of public opinion often renders quick judgements and doesn’t allow for a “wait and see” approach.” If a company fires someone for, say, a social media post that alleges abuse or even because the police file charges, and they end up being found not guilty, what recourse should they have other than a lawsuit?
Accused of Assault Lawsuit
The person who was wrongly accused would have to file a defamation lawsuit against the company and the accuser, and the accuser could file a lawsuit for harassment (intentional infliction of emotional distress, negligent infliction of emotional distress), assuming they didn’t want to back down. This is essentially what happened in the Depp and Amber Heard case. Unlike in a criminal trial, a civil lawsuit only requires someone to be right on a balance of probabilities.
A jury or judge just has to believe you 51 percent versus the others side’s 49 percent. It’s a lot easier to prove you are 51% right than 98% right. This means that the accuser would have a second shot of justice, assuming the person “did it.” (Think O.J. Simpson getting acquitted of murder, and then losing a $60 million wrongful death suit.)
There is no evidence the Canucks dumped Jake because of this allegation. The point of this article is if they did, then should he have a case?
Either way, the results of the Jake Virtanen case may offer a blueprint for other hockey players in Canada who find themselves accused of assault in an attempt to be found not guilty. I am sure a lot of hockey players across Canada feel a brief sense of relief today unless they played for Team Canada in the World Juniors in 2003 of course.
How NHL Contracts Work
An NHL team often doesn’t need cause to buy out a contract. This means they didn’t need to wait for Jake to be proven guilty before cancelling his contract. Everything in this article was purely theoretical. The relationship between a player and team is governed by a collective bargaining agreement, so he would have to arbitrate against the team rather than sue.
It’s practically impossible to sue for defamation for reporting an alleged crime to the police since it would be covered by qualified privilege.
If Jake were to try and go after the Canucks, he would likely have to file for breach of contract, wrongful dismissal, or anything else relevant – instead of defamation, which would only be from the accuser, not the employer.
