Sexual Assault Civil vs. Criminal

By: Beth Fegan

One of my main goals in co-founding FeganScott was to provide more one-on-one support for survivors of sexual assault who were interested in pursuing litigation. Sexual assault or abuse is traumatic, and many survivors carry the burden of their experience alone. When survivors choose to pursue litigation, I noticed the typical legal approach could often feel impersonal, and didn’t adequately address the mental and emotional needs of the survivor.

The decision to pursue litigation to hold sexual abusers accountable is difficult, but you don’t have to do it alone. One of the main ways I feel I can support our clients is by demystifying some of the legal process. We know that survivors often have many questions like: Do I have to talk to my accuser? Will I face additional trauma in the courtroom? Is my case valid?

While each survivor story is unique, we wanted to share some insights into the litigation process so you have a better idea of what to expect.

Civil vs. Criminal Sexual Assault Cases

There are two distinct ways to pursue justice. At FeganScott, we work specifically with civil sexual assault and harassment lawsuits, meaning we use civil litigation as a tool to stop the perpetrator, going after the networks that support and surround the individual.

There are a few nuances between civil and criminal litigation. For civil sexual harassment and assault lawsuits, you do not have to file police charges before pursuing litigation. It’s also possible that the statute of limitations (a law that sets the maximum time the parties involved have to initiate legal proceedings from the date of an alleged offense) could get extended. Because survivors don’t need to file police charges to pursue justice, they can avoid the risk of the police department potentially dismissing the allegations due to a lack of physical evidence.

In civil lawsuits, a lawyer can also examine trends or compile reports from multiple survivors who experienced the same trauma and then bring charges with a few key survivor experiences, presenting other stories demonstrating the perpetrator’s pattern or practice of predatory behavior.

Sometimes, it’s possible for a civil lawsuit to lead to criminal charges, or vise versa. Our work on the Weinstein civil lawsuit is a great example. The criminal case against Harvey Weinstein never would have been brought to court if the civil cases hadn’t been filed by some of the survivors. The civil lawsuits introduced public pressure on the police and District Attorneys to take action. Additionally, the civil lawsuit allowed for the survivors to also seek justice against Weinstein’s enablers, like board members of The Weinstein Company, in the network of power he used to coerce women.

The Statute of Limitations and Reframing Cases to the Court

 The statute of limitations defines how long a survivor may have after an incident occurs to pursue a civil lawsuit. The legal path to achieving justice for a past incident is not always straightforward, since each state enacts unique statutes depending on the cause of action. For example, two years is a typical statute for any kind of bodily injury, but all states have exceptions. For example, some states permit claims to be brought many years later when the victim repressed memories of the abuse. Other states may have enacted extended periods for abuse that occurred when the victim was a minor or abused by a person in power.

Ultimately, it comes down to the court. Courts have discretion to determine how to apply these unique exceptions, meaning the statute of limitations is not always a dealbreaker.

We meet many survivors who share their trauma dating back to childhood, and we work with them to identify the factual reasons why they were not able to come forward sooner. With the Weinstein civil case, for example, many of the survivors couldn’t speak up sooner due to Weinstein’s control of their careers.

To provide another example, we worked with a group of  women who had been sexually abused by a high school and college track coach who controlled much of their athletic and daily lives for years. Some women didn’t even realize they had been groomed or abused until much later in life, and we were able to argue that this case is worthy of an exception to the statute of limitations.

Though the accused coach filed a motion to dismiss based on the statute of limitations, the judge ruled in favor of the survivors. The judge recognized the reasons why trauma survivors often do not come forward, citing the “pervasive problem” of sexual assault on college campuses, and finding that “various tolling doctrines prevent the Court from determining that Plaintiffs’ claims are time-barred.”

At FeganScott, we hope to see more instances where the court recognizes time should not be a limiting factor in cases of sexual assault or abuse. Instead of seeing time as an obstacle, we can use compassion and critical thinking to engage survivors and seek justice on their behalf.

Location and Jurisdiction Restrictions

Location can also play a nuanced role in sexual assault litigation. As long as the accused individual is based in the United States, foreign citizens may be able to file suit in the U.S. This means you may be able to sue a U.S. citizen in America for wrongdoing that happened abroad.

Jurisdiction is often a question in cases involving human trafficking since the survivors and the defendants likely traveled through multiple locations and jurisdictions. Similar to changes in perspectives on the statute of limitations, jurisdictional decisions related to sex trafficking are also beginning to be considered in more nuanced ways.

The decision for which jurisdiction would be best for a case can be discussed between the plaintiffs and the attorney or law firm. At FeganScott, we closely monitor the law to determine the jurisdictions where claims are more likely to be successful. We also work closely with lawyers in the United Kingdom and Canada to get full perspective on where to file to ensure the best results for our clients.

Required Evidence

Another important element of a sexual assault case is evidence. Without evidence, it can be very difficult to pursue litigation. The evidence doesn’t necessarily have to be body fluids and police reports, as people may commonly think. Evidence can also be a diary or stories you shared with best friends and family members.

The ability to show a pattern by presenting multiple perspectives can be vital in establishing the predator’s guilt because it lends credibility to the claims. Ultimately, this is why civil litigation can be so effective, since the mass filing of multiple individuals’ stories validate similar patterns of behavior. Beyond that, civil suits can also give survivors a sense of strength in telling their stories through collective action.

The #MeToo Movement and Potential Changes on the Horizon

 As the #MeToo movement gains power and continues to start conversations globally, the courts are beginning to catch up and recognize the barriers that survivors face in holding the accused accountable. On a global scale, the United Kingdom and Canada have done a significant job at recognizing trauma in delayed reporting, pointing to the possibility for changes in the United States as well.

In addition to more attention and public pressure, we are starting to see courts recognize the undue barriers placed on survivors and take a more lenient view on the statute of limitations.

We will continue to take it one step at a time and feel empowered by the community of legal professionals everywhere who are working to change the system and promote justice for all survivors of sexual assault and harassment. Survivors deserve to have their voices heard.

If you or someone you know has been affected by sexual assault or harassment, please know there are resources available for those in need. You may also reach out to FeganScott for a complimentary, no-obligation phone call to discuss your potential case if you are considering legal help.