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By Julie A. Jervis, MD, RN

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Survivors of a Sexual Assault: Understanding Their Legal Rights
By Diana Faugno, BSN, RN, CPN

The single most misunderstood concept in the area of survivors' legal rights is the notion that if the district attorney does not file charges, that the legal system as a whole provides no relief.

Most district attorney's offices have some type of financial restraint and, as a result, typically prosecutors can only pursue those cases that they have the utmost confidence can be won. The DA's mission is criminal prosecution, not full and fair restitution to the victim. The criminal system follows only the path leading to jail time. Conversely, a civil lawsuit is the only way a victim can receive full financial compensation from any source. Usually the DA's office is only pursuing the perpetrator, not potentially responsible entities such as landlords, security companies, property managers, employers, parents and guardians.1

The basic concept of determining the truth based on evidence is common for both. Both criminal and civil trials are held within one year of the filing of the indictment (criminal) or filing of the complaint (civil). In criminal cases, this generally means within one year to several years after the attack; while in civil cases, the trial, if any, can be set for anywhere from one year to several years after the attack. It also is important to remember that more than 97 percent of all civil cases settle prior to trial.1

In the criminal system, the prosecution must convince the jury by a unanimous vote, "beyond a reasonable doubt." In civil court cases, the attorney need only to convince nine of the 12 jurors that "it was more likely than not." For these reasons alone, civil cases are easier to win.2

The benefits of civil action are as follows:

  • Recover past and future monetary losses.
  • Goes beyond where the DA can go with the criminal case.
  • Sends a message to future perpetrators.
  • Sends a message to property owners and others who disregard their legal duty to prevent sexual assaults.1

Civil actions are considered private matters between parties (Neubauer ). A civil lawsuit seeking damages for trauma and emotional distress is the only legal means to recover some measure of loss caused by the trauma of an assault. Recovery for these damages is commonly referred to as "pain and suffering."1

Survivors may frequently lose time from work immediately or for extended periods. The law allows victims to receive recovery from past loss of earnings, as well as other expenses. Medical and other out-of-pocket expenses also can be recovered. Future losses are typically seen in the forum of psychiatric counseling and loss of earnings. The law will allow for future recovery of losses as well.

Property owners and managers have a legal obligation to take all steps necessary to learn about crime occurring on their property. They also have the legal obligation to take necessary measures (locks, lighting and security guards) to deter foreseeable crime on their property and/or warn people about such foreseeable criminal activity; this gives people the information they need to protect themselves.

For example, if there are prior rapes or sexual assaults on the property, in nearly all situations, owners and managers are under the obligation to take necessary security measures and/or warn tenants, guests and others. This is true even when doing so is a financial detriment to their business. Many situations are neglected, so in those cases, the law may hold property owners and managers financially responsible for loss of victims' earnings, expenses and damages.

Employers of a perpetrator may be responsible if the employer negligently hired or supervised the employee, and/or the perpetrator's job was in some way related to an aspect of the attack. For example, a fast-food company that knows or has reason to know the delivery driver has the capability or desire to commit sexual assaults on customers and continues to allow him to deliver fast-food, may be liable.1

Most victims of any type of injury or damage are concerned from the outset about going to trial. The majority of cases is resolved by a process known as mediation. Civil litigation is more than just good in theory. Recoveries throughout the country often go into the millions of dollars. After all, even the most belligerent defense counsel and insurance carrier knows that a just will believe that "no amount of financial recovery can ultimately compensate a survivor."1

Also, one should note that the only true instance where the survivor has control in the criminal process is at the time of sentencing. However, the survivor has complete control once the decision to pursue reasonable parties (civil suit). Throughout the litigation, the survivor, in consultation with the attorney, decides where the case goes and the ultimate conclusion. In civil cases, all communications are held with the strictest of confidence.1

As advocates or examiners, we have an opportunity to communicate and provide information to victims so they have the chance to pursue their legal course. A good resource is the free information hotline staffed by an attorney 24 hours a day. The number is .

Diana Faugno, BSN, RN, CPN, is district director of forensic health services for Palomar Pomerado Health System in Escondido, Calif.

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