SURVIVOR LEGAL NEWS #4
Criminal Justice System & Civil Justice System
This blog is dedicated to the brave survivors of intimate partner violence, sexual abuse, childhood trauma and human trafficking. We will be covering legal news concerning victim’s rights and remedies.
Criminal Justice System
In the criminal justice, the survivor of sexual assault is actually a “witness” in the State’s case against the perpetrator-defendant. The case is brought by a governmental prosecutor. State of Florida, or Texas, or United States against the Defendant. Such cases begin with a police agency investigation, a 911 call, or report by the survivor to the police. Since the case is brought by the “State”, a survivor’s wishes concerning the prosecution, may or may not be considered. In a criminal case a jury is asked to consider the guilt of the perpetrator (Guilty vs. Not Guilty). The offender is “presumed innocent” and the State must prove its case “beyond a reasonable doubt”. If the perpetrator is found not guilty, the State cannot prosecute again for the same offenses.
Restitution in the Criminal Justice System
Each State has their own way of managing restitution for crime victims. Ordinarily, restitution must be requested before or at the time of the sentencing of the perpetrator. The amount will be ordered by the Judge as part of the criminal defendants sentencing. Restitution can be for items such as medical expense or related, out of pocket expense for the survivor.
Victims Assistance Programs
Most States have an Agency or Department that help crime victims with financial assistance for medical care, lost income, mental health services, funeral expenses and other out-of-pocket expenses directly related to the injury. If needed, they can also be referred to support organizations within their home area. Many prosecutors’ offices will assist a crime victim apply for such benefits.
See National Association of Crime Victim Compensation Boards http://www.nacvcb.org/
Civil Justice System
In a civil case, a survivor controls his/her case. It is the survivor who decides whether to sue, accept a settlement offer or go to trial. When a survivor wins a civil case, no one will be sent to prison. Rather, a civil jury will determine whether an offender/perpetrator, or a third party, is liable for the injuries a survivor sustained as a result of the crimes, actions, inactions of the named defendants. In the civil justice, liability must be proven by the “preponderance of evidence” as opposed to “beyond a reasonable doubt”. Preponderance of the evidence means that the Plaintiff/ Survivor must prove that there is a more than 50% or greater likelihood that the defendant(s) committed all the elements of the particular wrongs they have been sued on. As an example, many people are familiar with the O.J. Simpson murder trial. He was found “not guilty” of the murders of his former wife Nicole Brown and her friend Ron Goldman by a criminal jury. However, the families of Nicole Brown and Ron Goldman filed civil cases against Mr. Simpson and in 1997 the families were awarded $33.5 million by a civil jury.
Statutes of Limitations
In each and every state there are mandated time limits for filing a civil case. If a civil lawsuit is not filed within these strict times, a survivor could be forever prevented from filing a lawsuit. In recent years many states have enacted extended time limits for victims of certain crimes, or acts. For example, a progressively larger number of states have extended the time limit for child victims of abuse to file lawsuits. These laws can be complicated and an Attorney should be consulted with any questions concerning these limitations.
Types of Civil Lawsuits
There are a number of different claims that can be brought caviling. Future blogs will explore in more detail a number of these types of claims. With respect to claims against the offender/perpetrator directly often include “counts” of sexual assault, assault, battery, false imprisonment, intentional or reckless infliction of emotional distress, fraud, conversion, negligence and wrongful death. In some civil cases a “third party” may be held responsible for the injuries a plaintiff/survivor endured and suffers. For example, shopping malls or other businesses that fail to take safety precautions for their customers, particularly after they are warned of crime in/or surround their premises. Schools, childcare centers, other institutions that do not properly conduct background checks of their employees, or just transfer their employees to another location when a claim or suspicion of child abuse has occurred.
I am an active member of the National Crime Victim Bar Association. My professional experience began as a Registered Nurse in the Intensive Care Unit at Yale New Haven Hospital. While pursuing my Bachelor’s Degree, I was a counselor with the New Haven Rape Crisis Program, which was located in the Yale New Haven Hospital Emergency Department. I had the privilege of counseling sexual assault survivors and performed seminars for local police departments, universities, and high schools. My work with the Rape Crisis program led me to attend law school. During the course of my career, I have acted as Pro Bono Counsel for Rape Crisis Programs and have practiced law in several different State and Federal Courts. I am a member of the Palm Beach County Sober Home Task Force and Pro Bono Counsel for the Florida Association of Recovery Residences.
I am also a survivor.