In the United States, the legal definitions of sexual assault and rape vary from state to state. However, it is generally accepted that sexual assault involves sexual conduct of an involuntary nature. Rape, a form of sexual assault, involves the nonconsensual use of another person’s sexual organs. Both are considered serious crimes, and in both cases, convictions lead to serious consequences.
Survivors of sexual assault have two legal options for recourse: criminal prosecution and civil litigation. Criminal cases are prosecuted by the state with the sexual assault survivor serving as a witness for the state. In civil cases, the survivor brings a lawsuit against the perpetrator, usually with the aid of a private attorney. This essay discusses both criminal and civil court recourses, along with civil protection orders, mutual filing of suits, and the difficulties involved in prosecuting sexual assault and rape cases.
Criminal Court Remedies
Criminal laws exist to impose social control and to serve as a deterrent to behavior that threatens societal well-being. Therefore, in criminal cases, the perpetrator is charged with committing a crime against the state. Society at large is the victim of the perpetrator’s actions, and thus criminal prosecution is led by the state and not the survivor.
The criminal process begins when a sexual assault is reported to the authorities. Once a police report is filed, a warrant can be issued for the perpetrator’s arrest. If the perpetrator is apprehended, a prosecutor for the state must then determine whether there is enough evidence to prosecute. If the case is brought to trial, the survivor becomes a state witness and may be called to testify during the trial. Since the survivor is a witness and not a client, she or he has no direct control over whether or how the case is prosecuted.
However, since the survivor’s testimony is usually the state’s most valuable piece of evidence and crucial to the success of the prosecution, criminal prosecutors rarely pursue a case without the survivor’s cooperation. If convicted of criminal charges, the perpetrator could face a variety of punishments, including but not limited to prison time, a fine, or probation.
The Federal Rules of Evidence and most states mandate that a survivor’s prior sexual history, reputation for sexual activity, and sexual behavior be inadmissible during the trial. A few exceptions exist, such as when the survivor has had previous sexual contact with the perpetrator. In these instances, the survivor may be questioned about her or his past relationship with the perpetrator.
Civil Court Remedies
Civil law refers to the part of the law that deals with relations between private individuals and between individuals and organizations. Civil suits are becoming an increasingly commonplace legal remedy. In civil proceedings, survivors can be awarded financial compensation from the perpetrator or the perpetrator’s insurer for physical and mental harm endured. A broad range of financial reparations is available, including but not limited to coverage of medical expenses and therapy, payment of lost wages or lost potential income, damages to property during the assault, and even punishment for a perpetrator’s malicious actions.
Civil litigation is valuable not only because it allows for financial recompense, but also because it can prove to be an empowering experience for the survivor. Unlike criminal cases, civil suits allow for the survivor to be the decision maker and to take control of her or his own case. The survivor is the client, so the attorney representing the client is bound by the client’s wishes in deciding how to proceed with the case. The sense of empowerment often achieved with civil suits can serve as a form of therapy for the survivor, who is able to take back the control that was lost during the assault.
Civil Protection Orders
In addition to financial recompense, survivors also may be able to file for a civil protective order (PO) to protect themselves from further harm by the perpetrator. POs are court orders for the perpetrator to stay away from and have no contact with the victim. Historically, POs have been limited to survivors of domestic violence, and, as such, only sexual assault survivors victimized by intimate partners were eligible. However, an increasing number of states have passed laws granting access to POs to sexual assault survivors in situations that fall outside of domestic violence. POs can be invaluable in cases where the survivor has continuing proximity to the perpetrator, such as when the perpetrator is a neighbor, classmate, or coworker. Although civil POs are granted through the civil court system, violation of a PO is a crime and is prosecuted through the criminal court system.
Mutual Filing Of Criminal And Civil Suits
Civil litigation and criminal prosecution are regarded independently. Regardless of whether criminal charges have been brought or even dismissed, survivors are still entitled to file suit against their perpetrators in civil court. Similarly, survivors who do choose to pursue a civil case against their perpetrator may still be involved in state prosecution of criminal charges.
In criminal courts, the prosecutor must prove beyond a reasonable doubt that the perpetrator is guilty of sexual assault. The perpetrator has the benefit of a legal right to counsel and stringent rules of evidence designed to protect the accused. On the other hand, the burden of proof is lower in civil courts. In civil suits, a survivor must prove liability by a preponderance of evidence, meaning she or he must prove that a 51% probability exists that the perpetrator was responsible. Since the burden of proof is significantly lower in a civil case, failure to prosecute or convict a perpetrator in a criminal case should not deter a survivor from pursuing a subsequent civil case against the perpetrator where the burden of proof may be easier to meet.
Difficulties In Prosecution
Although sexual assault is one of the most serious of violent crimes, criminal prosecution of sexual assault offenders is particularly difficult. In fact, out of all the violent crimes in the United States, rape is the least reported and prosecuted and results in the fewest convictions.
This difficulty in prosecuting sexual assault and rape cases is a result of several factors. Not only is it a challenge to prove rape under most states’ laws, but also there are rarely other witnesses to corroborate a survivor’s account. It is common for these cases to have a lack of physical evidence, both because survivors often are reluctant to report the crime immediately and because this type of violence may not leave observable injuries. Furthermore, sexist stereotypes and common law work together to create a situation in which both judges and jurors tend to question the survivor and her or his behavior rather than the actions of the perpetrator.
Bibliography:
- Berman, J. (2004). Domestic sexual assault: A new opportunity for court response. Juvenile and Family Court Journal, 55(3), 23–34.
- Hunter, S., Burns-Smith, G., & Walsh, C. (2001). Equal justice? Not yet for victims of sexual assault. Madison, WI: Connecticut Sexual Assault Crisis Services.
- Perry, A. L. (1998). Insurance company liability for sexual assault. Sexual Assault Report, 1(6), 85–86, 96.
- Perry, A. L. (2003). Evidentiary decisions in sexual assault cases. Sexual Assault Report, 7(1), 5–6.
- Prendinger, S. (2000). Court preparation for crime victims. Denver: Colorado Coalition Against Sexual Assault.
- Suffolk University Law School. (2004). Beyond prosecution: Sexual assault victims’ rights in theory and practice. Boston: Author.
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