Laurie Koller recently gave a presentation about the five misconceptions of sexual abuse cases to the International Association of Women, Tulsa Chapter, on October 25, 2018. Here were the key takeaways:
5 MISCONCEPTIONS OF SEXUAL ABUSE CASES
There are two different legal systems – the civil justice system and the criminal justice system. These systems are not mutually exclusive, so victims do not have to choose one over the other. Many victims do chose to do both.
The criminal system is triggered by reporting a crime to the police. The police are supposed to investigate and then deliver the investigation materials to the District Attorney. The District Attorney decides whether to prosecute. If the case is prosecuted, the District Attorney represents the state, the goal is to determine the guilt or innocence of the accused, to punish those found guilty beyond a reasonable doubt in order to keep us all safe.
The civil justice system does not attempt to determine guilt or innocence. Offenders are not put in jail. Rather, civil courts try to determine whether someone is liable/responsible for the injuries sustained as a result of the crime. If an offender or other entity is found liable, then they must pay the victim or the victims’ family’s money damages. The standard is not “beyond a reasonable doubt” but whether something “is more probable true” than not true.
When it comes to sex crimes, many times there is additional confusion because of the nature of what happened. So let me dispel 5 common misconceptions of sexual abuse victim’s rights in the civil legal system:
- The victim did not call the police
Often, people may think that if a victim did not contact the police, there cannot be a case. Some people assume the victim didn’t call the police because they’re lying or manipulating. This is one of the five misconceptions of sexual abuse cases. The reality is many victims are afraid to talk to the police —for a lot of legitimate reasons. They may fear for their reputation. They may think that no one will believe them. They may not want to go through the process. They may be in a situation that they think puts them in danger if they do report. There are lots of reasons why victims may not contact the police. The fact that a victim did not contact the police is not a barrier to a civil suit.
- The victim contacted the police, but the police did not investigate
Until I started doing this work, it never occurred to me that a police department would not respond with a full investigation of a sex crime. I was under a misconception. However, I have now talked to many women, often mothers of teenage victims, who are very frustrated with the local police response. The system is often slower than people think it should be. Sometimes the response is incompetent. Sometimes, local politics gets in the way. The fact that the police choose not to investigate does not mean that a victim cannot pursue a civil suit. In fact, often it is frustration with the police that leads a victim to call someone like me.
- The police did investigate but the DA did not to charge the perpetrator
Even if the police do a thorough, competent investigation, it may be the case that the District Attorney chooses not to pursue charges against the perpetrator. District Attorneys, being an arm of the state, have limited resources and a political job. Since everything they do is in the criminal system, they must prove the case to a much higher burden of proof. For all of these reasons, District Attorneys often decline to prosecute criminal cases. Many of the cases the DAs turn down are actually great civil cases.
- The victim’s story is spotty – they can remember some things, but not others
Science shows that trauma victims are incapable of processing what happened to them right away. So they typically can’t tell a straightforward story until after they’ve fully processed what happened and sometimes not even then. People who think they should be able to are under one of the misconceptions of sexual abuse. The victim may remember very clearly the color of the perpetrator’s shirt – but not the address where the crime happened. They may remember what song was on the radio but not what they did right after the crime. Victims may worry about the fact that their memory is spotty. Those with training in trauma understand that this is completely normal.
- It’s a “he said/she said”
I want to talk about “he said/she said.” We’ve heard a lot about this in the last couple of months. Often when using this phrase people mean to imply that there is no EVIDENCE because it was a “he said/she said” case. This is incredibly frustrating to a lawyer because it is one of the misconceptions of sexual abuse. Because if you put a witness under oath – which means they are testifying – what HE SAID or SHE SAID is evidence. It is the jury’s job to evaluate what he said and she said and reach a conclusion. So the fact that it is a “he said/she said” situation does not mean that the victim cannot pursue a civil case.
There is also a lot of confusion over how to start a civil lawsuit. Most reputable lawyers who handle civil cases for victims of crime do so on a contingency fee basis. This means that the lawyer is only paid if the victim receives a monetary settlement or judgment. Many lawyers will advance the expenses of a case for the victim. This process allows everyone who wants to pursue a case to do so – including those who cannot afford to pay a lawyer by the hour.
Just like criminal cases, civil cases also have an effect of deterring conduct. One of the things that has brought sex abuse to light are civil lawsuits against entities like the Catholic Church, the United States Gymnastics Team, Penn State, Baylor, and others. As a result of these lawsuits, many entities now have policies and procedures in place to try to reduce abuse.
It is powerful to know that a victim with a lawyer can bring changes about that help all of us. If you have questions about sexual abuse cases, contact Koller Trial Law.