Victims of sexual assault often wonder how they can get the justice and support they need. If you or a loved one has recently become a survivor, you may be worried about concerns like:

  • What if the criminal justice system fails to convict the offender?
  • Can others be held liable for enabling the sexual assault?
  • Should I consider filing a lawsuit?
  • What damages would a lawsuit cover?
  • Should I talk to a victims' rights lawyer?

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Survivors of sexual assault, as well as victims of childhood sexual abuse, have a number of legal rights, but many of these rights aren’t frequently publicized. Alongside the right to be treated as dignified participants in the criminal justice system, victims of crime have the right to pursue offenders and negligent third-party organizations in civil court. While this type of civil lawsuit has become increasingly common, it’s still true that only a small proportion of assault survivors make use of their full legal rights.

Civil Sexual Assault Lawsuits

Criminal prosecution has, as its primary goal, the punishment of sex offenders. Convictions can lead to a number of possible penalties, from jail sentences to fines or probation. Compensating victims for their injuries and trauma, however, is usually an afterthought in the criminal justice system.

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While court-ordered restitution is a possibility, providing compensation as an aspect of sentencing, most survivors of sexual assault will be forced to fight for their right to financial relief. Restitution isn’t automatic and, even when it is granted, the sums paid out to victims are often small and arbitrarily limited. In practice, the majority of sexual assault survivors will only see financial compensation when they file a civil lawsuit, apart from the criminal justice system.

Finding Compensation Outside The Criminal Justice System

Some survivors of sexual assault or abuse will be able to file claims for financial compensation against sexual offenders, the people who victimized them. Other victims will take a slightly different route, pursuing compensation from a third-party whose negligence allowed the assault to occur. We should note that these avenues for relief are not mutually exclusive. Many survivors can – and do – file two civil lawsuits: one against the perpetrator of the crime and another against a third-party entity.

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Intentional Torts: Suing A Sex Offender

While both of these cases stem from the same incident, the two claims are based on separate theories of liability. Lawsuits against offenders fall into the category of “intentional torts.” A “tort” is any wrongful act that gives rise to civil liability; intentional torts are simply acts that begin with the conscious intentions of the culprit. Sexual assaults and sex abuse obviously come under that heading. Assault is intentional, as is abuse. This fact, the intent to do harm, distinguishes crime lawsuits from most other civil claims.

The vast majority of civil lawsuits, from car accident cases to medical malpractice, are founded on the legal theory of negligence. Negligence doesn’t have to take intentions into account; mistakes and errors can be considered negligent acts, whether or not the wrongdoer had any intention of doing another person harm. Many civil lawsuits filed over crime are based on negligence, but not the ones filed against criminal offenders.

Civil Theories Of Liability

Lawsuits filed against offenders are usually premised on three legal theories recognized in civil courts:

  • Assault – a legal claim holding that, when a person intentionally acts to make another person fear immediate harmful contact, the victim can recover monetary damages
  • Battery – closely-related to assault, battery occurs when a person, with intent, actually causes harmful contact. Assault and battery claims are usually paired together, but need not be.
  • Intentional infliction of emotional distress – as the name suggests, this legal claim holds when one person, through extreme or outrageous conduct, causes another person severe emotional distress. Damages can be increased when the initial emotional distress leads to physical illness.

These three legal theories tend to come together. Most sex assault lawsuits will accuse an offender of creating a sense of fear, confirming that fear through horrendous acts of cruelty and causing long-term emotional trauma. The amount of monetary compensation available will depend on the physical pain and psychological suffering inflicted on a survivor, along with past and future medical expenses and lost wages.

Barriers To Financial Compensation

In practice, suing offenders can be difficult. The initial problem for many civil crime lawsuits is identifying a perpetrator in the first place. Only around 17% of robberies, for example, result in arrests. That leaves a significant majority of thieves and muggers roaming the streets and, in most cases, completely unknown to both the police and the people they have victimized. Statistics on assault and battery crimes outline a similar problem.

Obstacles & Challenges

With these facts in hand, it’s hard to know who to sue, if suing an offender is your goal. On this point, sexual violence is different. Most assault survivors know the person who hurt them. As the Rape, Abuse & Incest National Network reports, 7 in 10 rape survivors are assaulted by acquaintances, relatives or current or former partners. In these cases, when the perpetrator is known, filing a civil claim for compensation is entirely possible.

The second problem is a question of financial resources. Sexual assault is a horrific crime and juries tend to punish offenders by awarding survivors with large compensation judgments. That sounds like a good thing for victims, but in reality, it can throw up a major hurdle. Some survivors will receive massive awards, but have no way of collecting the money, because the defendant just doesn’t have it.

To make matters worse, the majority of liability insurance programs don’t cover intentional acts, meaning the offender’s personal assets are usually the only place to find compensation. It’s unpleasant to think about, but many crime victim attorneys will reject a case, simply because they don’t think the offender has the necessary assets to make good on an award.

Third-Party Civil Lawsuits

The picture can change drastically, however, when there’s evidence that a third-party’s negligence contributed to the assault. The theory of negligence usually comes into play when a survivor of sexual assault files a claim against a property holder, like a business or apartment owner. While property owners aren’t usually responsible for the commission of an assault, they have a legal duty to create a reasonably safe environment for lawful guests.

Negligent Security

Most property owners in the United States have a legal duty to provide guests and visitors with a reasonable degree of security. The very point of this duty is to force people who own properties to take fair and feasible steps in preventing crimes on their properties.

Having good security is just good business. Who would step into a convenience store at all if they knew, or had a reasonable degree of certainty, that they would be mugged after doing so? No one. The duty to provide adequate security is even more important in places with high crime rates, where people are more likely to be victimized. That’s why property owners in more dangerous areas are usually held to a higher legal standard than people who own property where crime is uncommon.

Using Inadequate Security Laws To Hold Property Owners Accountable

In virtue of these duties, property owners can be held accountable in court for failing to provide adequate security. Around 10% of sexual assaults take place in parking lots and garages. How many of these devastating, horrendous crimes could have been prevented with better security? How much suffering could have been avoided if property owners had provided visitors with adequate lighting and fencing, while warning potential offenders off with security cameras?

It goes without saying that some proportion of sexual offenders would be hindered by more stringent safety protocols. This logic, which serves as the foundation of any negligent security lawsuit, extends from parking lots and garages to include another common location for sexual assaults: schools, colleges and universities. Every academic institution has a basic duty to protect students from sexual offenders. As has become increasingly clear in recent years, many schools and colleges have utterly failed to provide a safe environment for their students.

Negligent Supervision

Some business owners can be held accountable for allowing their employees to commit criminal acts. We can all agree that it’s just good policy for employers, like schools or massage parlors, to perform criminal background checks and confirm references for potential hires.

The point, of course, is to ensure that someone who has a history of crime or violence isn’t allowed to inflict more damage on other people. By the same token, organizations that fail to properly scrutinize their employees can be held liable for allowing those employees to commit crimes, including sex assault, during the course of employment:

  • Churches and other religious organizations
  • Boy Scouts and other youth organizations
  • Hospitals and other health care facilities
  • Schools, colleges and universities

Negligent supervision lawsuits are most common in cases of childhood sexual abuse. The wave of civil claims filed (and still being filed) against the Catholic Church is a prominent example. Many of these cases accuse the Church of failing to remove members of the clergy from the ministry, despite having knowledge of abusive conduct.

How Criminal & Civil Cases Interact

Criminal prosecutions and civil lawsuits can become closely intertwined. As an aspect of the legal doctrine known as collateral estoppel (“issue preclusion” in modern parlance), a conviction in a criminal case may be introduced as evidence of liability in a parallel civil lawsuit concerning the same incident.

Even in the absence of a criminal case, the mechanics of civil court can help survivors win justice. To secure conviction, criminal prosecutors have to prove “beyond a reasonable doubt” that the defendant committed a crime. Civil lawsuits, on the other hand, rely on a different burden of proof. In order to hold an offender liable in a civil claim, plaintiffs only have to prove that a “preponderance of the evidence” confirms the perpetrator’s responsibility – that it’s more likely than not the defendant committed the crime. That’s a much lower bar than ruling out every reasonable doubt.

The third point of possible interaction between criminal and civil cases comes in the realm of time limits. Every state has a civil statute of limitations, a law that provides plaintiffs with a specific time period during which their claims can be filed. In some states, though, this time limit can be paused, or “tolled,” while criminal proceedings are underway.

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