The Mighty Phoenix

Support for Survivors of Incest, Sexual Abuse, Domestic Violence from author & survivor Marie Waldrep

CIVIL LEGAL REMEDIES FOR VICTIMS/SURVIVORS OF SEXUAL ASSAULT  

Civil litigation is quickly developing as an additional means of obtaining financial compensation for victims/survivors* of sexual assault. Restitution and crime victim  compensation were once the primary sources survivors turned to for recompense, but now more and more survivors are taking their perpetrators to court to recover monetary damages for the physical and mental pain they have caused. Regardless of the existence or outcome of criminal proceedings, survivors have the option of pursuing a civil suit against their perpetrator.

THE IMPORTANCE OF CIVIL LITIGATION FOR SURVIVORS


Civil litigation is important for survivors because:
? It is empowering in that it places the survivor in control of the case. In criminal cases the state is in control.
? Society will learn the impact of crime; that survivors have suffered and that perpetrators should pay for their injuries.
? It is a unique opportunity to recover monetary damages for harm inflicted upon them by their assailants.
? A broad range of financial remedies are included, such as payment for therapy and mandatory restitution for damages.

WHAT IS THE DIFFERENCE BETWEEN CRIMINAL AND CIVIL ACTIONS?

 
In the criminal case, the prosecutor makes all the decisions. She/he decides whether to file charges against an alleged perpetrator based on an assessment of the legal adequacy of available evidence. The prosecutor also decides whether to go to trial or whether to plea bargain with the defense and settle at a lesser charge. The prosecutor is responsible for proving beyond a reasonable doubt (i.e., proving a case that is 99.9% certain) that an alleged perpetrator is guilty. Winning a criminal case means the perpetuator gets criminal charges brought against them like prison time or probation. In a civil case, the survivor decides whether or not to bring a civil suit. The survivor decides whether to attempt a settlement offer. It is up to the survivor to carry the burden of proving liability by a preponderance of the evidence (i.e., proving a case that is 51% certain). A civil case may also be brought against negligent third parties. Winning a civil case means gaining damages.

DOES A CIVIL CASE INTERFERE WITH A CRIMINAL CASE?


The survivor has the option of proceeding with a civil action independently from the criminal prosecution. There are, however strategic consideration which affect the criminal and civil actions. Early filing of a civil action is important because the statute of limitations is very short for civil cases. If a survivor waits until the criminal case is over, the time limitations may be expired. However, if a survivor files before the criminal case is settled, the defense may attempt to undermine the survivor's credibility as a witness in the case by alleging that the survivor has monetary motivation. On the other hand, a criminal conviction prior to the civil action may be used to support or even prove liability in a civil action. Generally, a criminal conviction results in a civil judgment as well. However, if the prosecution chooses not to prosecute or fails to convict, the victim/survivor should not be discouraged from considering a civil action, because the burden of proof is lower in a civil suit.

WHEN CAN CHARGES BE BROUGHT?


In some states, the statute of limitations in a criminal case is 6 years for a felony and 3 years for a misdemeanor. Sexual assault has four degrees and 1,2 and 3 are felonies, while the 4th is a misdemeanor. For sexual abuse that occurred during childhood, the individual has until they turn 23 years of age to file criminal charges. In civil cases, a survivor must file charges within 2 years from the last sexually assault act or, in the case of incest, 2 years upon discovery. This means that if a survivor has repressed memories of the incest, she/he has two years from the time of remembering to file a civil action. In sexual exploitation by a therapist, a civil action must be commenced within three years.

HOW ARE AWARDS DECIDED?


A civil wrong that resulted in personal injury and loss of property is called a tort. Causes of action in a tort may be assault and battery, wrongful death, negligent or intentions infliction of emotional distress, false imprisonment.... A tort may be the result of either an intentional act or inaction, or the result of negligence. The damages awarded for the injuries may be compensatory, which is payment for expenses; punitive, which is punishment for a perpetrator's malicious actions; or pecuniary, which is coverage for lost wages or lost potential income.
Even if a perpetrator does not appear to have any assets from which to collect a judgment, they might be insured. Increasingly, survivors and their civil attorneys are obtaining judgments from insured perpetrators' insurance carriers. Insurance covers intended injury by an insured perpetrator. Unfortunately, with respect to sexual assault survivors, the tort is usually a negligent act and may not be covered by the perpetrator's insurance.

THE ROLE OF THE LEGAL ADVOCATE IN CIVIL SUITS


The advocate can play an important role in informing the survivor about the possibility of monetary recovery through the civil courts, providing the survivor with realistic expectations regarding the likelihood of monetary recovery, providing support during the court process (which can be very long) and in assisting the survivor with locating an attorney. The degree to which the advocate handles this role depends on the advocate's knowledge of civil attorneys for resources, prior experience, and familiarity with civil cases.

CHOOSING AN ATTORNEY FOR CIVIL SUITS


The legal process can be very emotionally draining, confusing and very lengthy. Choosing an attorney is a personal and very important decision you will make. You will want to choose an attorney you are comfortable with and preferably having experience dealing with sexual assault cases, who will keep you, informed and empowered throughout the process of the case.
Find an attorney who understands the dynamics of sexual assault. Ask about prior experiences with civil cases representing survivors of sexual assault. Determine whether you feel comfortable and confident about the attorney's abilities to represent your case.

* For the purpose of this fact sheet, the term survivor will be used rather than the usual reference to a victim/survivor

 

Georgia's special statute of limitations for childhood sexual abuse provides that victims may bring civil actions within 5 years of reaching their age of majority.
O.C.G.A. 9-3-33.1 (2001)

Georgia Statutes search page
Georgia penal statutes for sex crimes

 

If you have been a victim of childhood sexual assault or a victim to sexual assault break that chain of silent secrets. Get help that you need so you can learn to live again. Find a good support group and go to it!

 

FACTS ABOUT SEXUAL ASSAULT


The facts are:
*
1 in 3 women will be assaulted in her lifetime.
*
1 in
7 women will be raped by her husband.
*
1 in
6 men will be assaulted in his lifetime.
*
1 in
3 girls will be sexually assaulted by the age of 16.
*
1 in
5 boys will be sexually assaulted by the age of 16.
* 3 out of 5 rapes happen before the age of 18.
* 3 out of 10 rapes happen before the age of 11.
* Girls age 11-25 are three times more likely to be assaulted than any other group.
* 6 out of 10 sexual assaults occur in the homes of the victim, relatives or friends.
* Between 80-90 percent of sexual assault victims know their assailant.
* It affects persons of every community, religion, race, age, class, and gender.
* The saddest Fact is that Children are often silent victims of this crime.

 

Victim Survivor Rights
1.You have the right to decide what you want to do about the abuse that has happened to you. People can give you options, but you have to be the one to make that decision when you are ready.
2. You have the right to decide who will know about the abuse and when.
3. You have the right to decide whether or not you will report the crime to the police and how you want to report it. I encourage you to report it, this will help to end sexual assault.
4. You have the right to be informed at any time by the police, District attorney and/or a victim-witness advocate as to the progress of your case at any time.
5. You have the right to have a victim advocate with you at all times through your court hearings.
6. You have the right to have supportive people with you at all times and you have a right to choose who they are.
7. You have the right NOT to be a "victim" for the rest of your life. You were a victim, but now you are a survivor. We don't have to let the perpetrators control the rest of our life.
8. We can heal from our abuse. It will take time, but we can learn to thrive.

 

Time Heals All Wounds, Hold Your Chin Up

Remember One Day At A Time. One Step At A Time.

 

Together we can tell others about sexual assault. We can let our VOICE be heard. The more people we tell, the more aware our society will be of the effects of sexual assault. If we stand together and break the chains of silence, the better the chances are in getting it stopped. There is no place in this world that is the wrong place to place information, to inform our society about sexual assault and the impact it has on us.