Beyond the Criminal Case: How Civil Lawsuits Help Sexual Assault Survivors Find Justice
Feb 05, 2018 | Elizabeth Payne-Maddalena
Trigger warning: the following discusses sexual assault and rape issues
“He stood there in a robe, and then opened it.”
“He grabbed my breasts as I walked by, every time.”
“I complained to my bosses about it. They never did anything, and it kept getting worse.”
“I tried to avoid him, find ways around seeing him. But he kept cornering me.”
“I trusted my doctor. I thought she was there to help me. Instead, she fondled me while I was under.”
“He told me if I wanted the job, I’d have to prove it. And then he whipped it out.”
“I kept saying no. Begging him to stop. He didn’t.”
Words like these have dominated the headlines recently. Victims of sexual assault are finally standing up and speaking out about the abuse they suffered at the hands of someone else – often someone they’ve trusted. It’s sparked criminal investigations, a national conversation, and even lawsuits.
As a personal injury attorney, I’ve been entrusted by sexual assault victims to handle civil suits on their behalf. Many people don’t immediately think that there’s any recourse other than a criminal case for sexual assault victims. Others don’t see why victims file personal injury or civil lawsuits. Today, I want to help explain what the civil options are for victims, and why it can be equally important in achieving justice and helping victims recover. I also want to help give victims some idea of the process, and what they should do as they take their lives back and weigh their options.
Because of this, there are 3 parts to this blog post, which I’m linking to directly here if you want to go straight to one section:
- Why pursue a civil lawsuit?
- I’ve just been the victim of a sexual assault. What do I do?
- How do I find the right lawyer for me?
Before I get started, I do want to state that if you have been victimized by someone you trust, I am so, so sorry that you are going through this. And I want you to know that it is not your fault. The most important thing you can do is take care of yourself right now. If this post is too hard for you to read at this time, that’s okay. Save it to read in a few weeks, when you are ready. And if you need to talk to someone now, I’ve included some links below to national hotlines for counseling after a sexual assault or rape case under section 2.
Why pursue a civil lawsuit?
I hear this question, or some variation of it, all of the time. I think it’s honestly one of the most important questions there is on this topic. After all, people think, rape and sexual assault, those are criminal cases. That’s for the police to handle. The criminal system will take care of this, right? And that is partially true. Rape and sexual assault cases are criminal cases. The only way that a Defendant goes to jail for those things is if a jury finds him guilty of those criminal charges in a criminal case. But, those cases focus mostly on the punishment of the Defendant instead of helping to make a victim whole again. After the criminal case is over, a victim is left to pick up the pieces on their own. This can require expensive treatment, counseling, and financial losses, as well as the psychological costs to a victim’s psyche. The feeling of shame and humiliation. The fear of being a victim again. The loss of their sense of self, of safety. The criminal system usually doesn’t consider these kinds of things. These things are the domain of a civil case, where a jury made up of everyday people from your community awards the victim damages to help make up for what they’ve gone through.
Additionally, criminal cases and the prosecution of them are outside of the victim’s control once they report it to the police. The prosecuting attorney and their team decides whether or not to pursue the case in a criminal court. For victims, the criminal case itself can cause a whole new round of trauma. And because the standard of proof—or the evidence required—is so high, the chances of losing are higher too. Nevermind what happens if the verdict rendered is one like the infamous Brock Turner case, where the Defendant received a sentence many consider too light to even be called a slap on the wrist.
One other issue with the criminal process is that sometimes, those who were responsible escape any kind of charges at all, because the criminal laws don’t apply to them. This baffles people. Sometimes, they have no idea what I mean by this. Let me explain:
Let’s say that an employer – a private school, for example, hires a teacher. And this teacher has some holes in his background that they don’t discover. Maybe the school doesn’t properly vet him for some reason. During the teacher’s time at the school, red flags start to appear showing that he’s a danger to the students he’s supposed to protect. Maybe other teachers notice he is far too friendly with his students. Maybe someone sees that he meets with kids alone, with the door shut. Maybe a teacher hears a complaint from a student that he said something inappropriate. And all of these things are reported up the chain, but the people in charge do nothing. They pretend to be ostriches, stick their heads in the sand, and ignore all of these red flags.
Until one day, the police come to the school and arrest the teacher. He’s molested a child – one of his students. More students come forward. Parents are enraged, especially when they learn that the school knew he was a risk and did nothing. They didn’t investigate. They didn’t reprimand the teacher. Nothing. They trusted their children in the school’s care and the school turned around and handed their little ones right to the wolf. The parents of the victims are furious. They demand justice. But the police, the prosecutors, they say there’s really no criminal charges that can be filed against the school. There’s nothing they can do.
This is when the civil system steps in and fills the void. Under the civil laws, there are a few ways the (hypothetical) private school and the people running it for a pretty profit can be held accountable for their role in these sickening attacks. After all, they were the ones who allowed this to happen. They were the ones who could’ve stopped it from the get go.
We see this in all sorts of situations. Businesses hire employees that may sometimes even seem fine, at first. Then the red flags start popping up and the people in charge decide to bury their heads in the sand and ignore those red flags, despite that they know that their employee is becoming a bigger and bigger danger to not only their other employees, but their customers. They think that in the end, they’ll get away with it. It’s easier this way. Sometimes, the culture of the company itself is toxic, and the people in charge are doing the same things. We’ve heard this story a thousand times recently: from churches, to children’s groups, to schools, to colleges, to multi-million dollar businesses, to newspapers and media companies, and in restaurants and hotels. Too often, businesses and institutions think they will get away with it because they didn’t do the foul acts themselves. But when they allow predators to continue to prey on people who are trusting them, they should and can be held accountable.
Now, I am not saying that civil lawsuits are guaranteed wins. They’re far from it. Nor am I saying the criminal process is not important. The criminal process and system is very important in these cases, but it is not the only avenue for justice to be served. Both a civil case and a criminal case play important, yet separate roles.
There are also some cases where a civil case just isn’t appropriate. Since these cases can only award money damages (again, no jail time here), it is not worth it to a victim to pursue a case against someone who won’t ever be able to pay a verdict. But, in those cases where a victim has been severely traumatized and where the Defendant—or the Defendant’s employers—have financial resources, they should be held accountable to pay all of the costs from their choices. That’s what a tort case is and what a tort case does.
If a victim thinks they may want to pursue a civil case, they should absolutely talk to an experienced attorney who has handled these matters before. But I’m getting ahead of myself. More on that in a bit.
I’ve just been the victim of a sexual assault. What do I do?
Many victims of sexual assault struggle with knowing what to do in the hours, days, weeks, and months following the attack. Their entire world is shattered. They’ve been stripped of their control of their own bodies. It is hard to function at all for some victims. My hope is that this part helps someone in this terrible moment see a path forward.
- Take care of yourself first.
- Once you’re safe, breathe. Remember, you did not deserve this. And you have control of what you, personally, do from this point.
- If it is the same day as the attack and you have been raped or physically injured, go to the hospital. Many victims don’t want to have to deal with anyone after an assault. They especially don’t want to be poked and prodded by doctors when they’ve just been physically violated. However, getting immediate medical treatment doesn’t just allow access to medications that will protect a victim from sexually transmitted diseases or an unwanted pregnancy; it’s incredibly important if you decide, at a later date, to pursue a criminal and/or a civil case against the Defendant.
- If you don’t require medical treatment, take photos. Write down what happened, who saw what. Make a record for yourself. If you are bruised, take the photos immediately. Same thing for scratches or other marks. If your clothes were torn, take photos, bag up the clothes and put them in a safe place. Write down everything that happened. Put names of any potential witnesses in there. Put all these things in a safe place. Back up anything you write down and any photos you take. Remember: phones break all the time. Computers die. Make multiple copies and put them in different places.
- Call the police. This one is a hard one for many victims. It is the hardest part. I am not going to sit here and judge you and make you feel guilty for not calling the police. I am not going to tell someone who decides the criminal system is not for them, that they want to let this go and move on, that they are wrong. This is a personal choice and it is your choice. But, if you think you may want justice, if you think you’ll want to pursue legal action, calling the police is a good first step. In a civil case, it helps us build the case and get the evidence we need to give you the best chance of winning. (That’s not to say there’s no hope if you didn’t call the police.) Ask for a victim advocate, if one is available. These are people who provide support to victims during the lifetime of a criminal investigation and case.
- Keep taking care of yourself. Again, your first priority is you. If you need to talk to someone, find a therapist that you’re comfortable with. Give yourself the time and space to process what has happened. A great resource for sexual assault victims is RAINN, a national hotline that helps victims navigate these first steps of the process. They even have an online chat feature if you’re more comfortable talking that way. If you’re thinking about suicide, please, please call the National Suicide Prevention Lifeline ASAP. Their number is 1-800-273-8255, or you can also use their online Lifeline chat. They have people standing by to help you and talk to you. Don’t let the Defendant steal your entire life from you. You deserve better.
- If you decide that you want to pursue a civil lawsuit, find an attorney who is experienced with these kinds of cases and whom you feel comfortable with. A quick, but important reminder here: in many jurisdictions, you only have a couple of years to pursue a civil case for sexual assault and rape cases. Sometimes, it is even less than a year, depending on the kind of case. Getting in touch with an attorney quickly is definitely important in order to protect your rights. Even if you’re not sure if you want to go through with a civil case, there’s no harm in reaching out to an attorney who practices in your state to see what your options are.
Why You Want an Experienced Lawyer Who Cares
This brings me to my last point. A recurring theme, you may have noticed, is that you want an attorney who has handled these kinds of cases before. Depending on the kind of case, the facts of your case, and where you live, different kind of attorneys may be more appropriate to handle your civil lawsuit. No matter what, you not only want someone who knows what they’re doing, but someone you are comfortable with. Someone you can talk to. Someone you feel like you could grow to trust over time.
In my experience, these kinds of cases take years to reach a final resolution. During that time, you need to know that you can get in touch with your law firm – and your attorney. Your attorney should listen to you: your pain, your fears, your frustration, your anger. All of these are valid. Your attorney should answer your questions and explain the process to you. Even if it’s a “well, this is a unique situation, let me look into it and I’ll get back to you.” (And they should get back to you!). During the life of your case, you’ll have to relive some of the worst moments of your life with them. If you can’t trust them, you’ll never feel safe in doing that. That’s why it’s important to find an attorney who cares about you – not just your case, but you, the human being.
In the end, the decision to pursue any kind of action is yours and yours only. If you’re a victim of sexual assault or rape (or the parent of a minor child who has been victimized) who lives in DC, Maryland or Virginia, and you want to talk about the possibility of pursuing a civil case, I hope you’ll give ChasenBoscolo a call. Our experienced attorneys are happy to talk about your options and your personal case during a free initial consultation that is private and confidential. You can reach us via phone at 1-800-322-3380 or by going to our website and clicking on the live chat button.
No matter what, you deserve justice, and if you so choose, you deserve to have someone in your corner fighting for you.