After a sexual assault charge against a Niagara Region man was withdrawn, he went on to sue his accuser in small claims court — and won.

After an eight day trial in Welland spread out over a year, where both parties were self-represented, a deputy judge concluded that the woman lied to the police about the sexual assault and awarded the man $18,842 to cover his legal fees from the criminal court case, as well as $5,000 in damages.

Experts say such lawsuits, while unusual, may be becoming more common and could have a chilling effect on sexual assault reporting.

The deputy judge in the civil case, David Black, found the woman’s testimony about her injuries, including cuts, scratches and bruises, was “completely contradicted” by her doctor who said she saw no indication of any such injuries when examining her at a physical on March 28, 2011, the day after the alleged sexual assault took place.

Black found that the woman defamed the man by lying to police about a sexual assault to get revenge because she thought he was cheating on her. While making a statement to police about a suspected crime is often covered by a defence known as qualified privilege, it does not apply when the statements are made with “actual or express malice,” he wrote.

However, Black did not find the man proved malicious prosecution because the woman did not initiate the prosecution — the police did.

The September 2016 decision is now under appeal, with a hearing set for next month.

The factum filed by the woman’s lawyer, Jonathan Collings, argues Black inappropriately relied on stereotypes about sexual assault victims when assessing the woman’s credibility and said the inconsistencies in her evidence are minor.

The factum questions Black’s interpretation of email and text exchanges between the two parties following alleged instances of abuse and argues that Black inappropriately relied on the doctor’s assessment of the woman as someone who did not present like someone who had been sexually assaulted the day before.

The factum argues the doctor noted that at the end of the appointment the woman told her that there had been a “confrontation” and she was forced into “un-consented sex” with her boyfriend but did not say when this happened.

The woman made a police report in July 2011 and the man was charged with sexual assault. Black’s decision noted that the police did not contact the doctor, who was specifically mentioned by the complainant in a written statement, prior to laying the charge and first did so in November. The man spent five days in jail before being released on bail and the charge was withdrawn in March 2013.

“There is medical evidence that completely contradicts the witness,” the man’s defence lawyer told the court following the complainant’s examination-in-chief at the preliminary inquiry. The Crown told the court he agreed with the defence “in broad strokes.”

The small claims court lawsuit was launched in July 2014.

The man is not being identified by the Star because of a publication ban on the identity of the woman. In an interview he said he brought the lawsuit because he was seeking “accountability” from the woman who he says ruined his life by falsely accusing him of sexual assault. He is opposing the appeal which he argued in a factum has been filed unfairly.

They had consensual sex, he said.

He said he hoped the lawsuit would clear his name but now believes that will never happen because of the stigma that comes with a sexual assault charge. He told the court he has been “blackballed” in his town, that he “lives like a hermit” and lost one job.

“Because of the charge my innocence means nothing . . . having the charge alone is guilt,” he said when contacted by the Star. “I hope this nightmare doesn’t happen to anyone else.”

According to the decision, he says he has suffered anxiety, depression and stress. He also cannot cross the border or apply for jobs requiring a vulnerable sector check, he said. Black found that the man had not proved loss of past or future income or that his employment has been impacted.

The woman and her lawyer declined to comment.

Lawyer Joanna Birenbaum, who has worked with hundreds of women considering reporting sexual assault, says she is regularly asked about the risks of being sued. “The chilling effect is extraordinary,’ said Birenbaum who is not involved in this case. “Sexual assault is the most underreported crime and the prospects of conviction where charges are laid is low. It is very troubling that fear of being sued is increasingly a barrier to women reporting rape.”

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Elizabeth Grace, a civil lawyer with experience in sexual assault and defamation law, says defamation concerns for accusers often come up when they share abuse allegations online. Just going to the police or starting a lawsuit isn’t usually enough for a successful defamation claim – but it can be if it’s found to be done for malicious purposes, which is a high bar to clear, she says.

Grace, who is also not involved in the case, says there has been a shift in society’s sensitivity to wrongful convictions and the harm that can be done by criminal charges and criminal trials, which may have led to more malicious prosecution and defamation lawsuits. And in the rare exceptions in sexual assault cases where there is malice, there should be recourse, she said.

However, these decisions always have the effect of deterring and intimidating victims, she said. “There are no winners.”