By: Amina A. Thomas, Attorney

The New York Times’ Monday morning headline this week was a report on  How Rape Cases Get Dropped.  The article examines why, even amidst increased social and cultural awareness in recent years surrounding sexual assault, prosecutors often still refuse to bring criminal prosecutions of sexual assault and frequently drop cases after they do bring charges. The report states:

“The Me Too movement led to heightened awareness of the prevalence of sexual assault, an increase in reports to police, and a new hope that people accused would be more frequently held accountable.  But in New York City, statistics and the accounts of women who say they were attacked suggest that little has changed about the way the criminal justice system grapples with rape accusations.”

As mentioned in the report, a major reason rape and sexual assault cases are so often rejected by prosecutors is because of the high burden of proof that prosecutors must meet, coupled with the fact that sexual assault cases often present inherent challenges of witness credibility.  Usually, there isn’t a third-party witness to these crimes, and as the report notes, in cases where “the attacker is not a stranger and alcohol is involved,” it can be extremely difficult to convince a jury of the defendant’s guilt.

The burden of proof in civil litigation, however, is lower than that in a criminal prosecution.  Instead of proving his or her case “beyond a reasonable doubt,” a rape or sexual assault survivor plaintiff most only convince a jury by a “preponderance of the evidence.”  In other words, the plaintiff must only be able to show that, more likely than not, the assault occurred.

While this lower evidentiary standard is, at first blush, helpful to survivor-plaintiffs, the aftermath of a criminal prosecution usually has a strong effect on the outcome of a civil lawsuit.  Almost all the evidence set forth in a criminal prosecution against a perpetrator will become relevant in a civil action against that same perpetrator.  When a prosecutor secures a guilty plea or conviction against a perpetrator, the survivor’s civil case is inherently much stronger.

On the other hand, if a criminal case is dropped or a jury finds a perpetrator not guilty, a survivor who wishes to pursue a civil lawsuit against his or her perpetrator will be left with an extremely onerous battle of combating the negatively skewed evidence from the criminal proceedings.  Furthermore, a negative result in a criminal case is emotionally draining for a survivor, and in turn can often make survivors hesitant to move forward with civil action at all.

Cohen & Malad, LLP’s clients who are survivors of sexual assault are usually also taking part in a criminal prosecution against their perpetrators.  In the unfortunate circumstance that a prosecutor believes he or she is unable to prove a rape or sexual assault charge, the decision to pursue a different or lesser charge, such as “battery,” is often still more helpful to a subsequent civil case than a prosecutor bringing no case at all or pursuing a charge on which a jury is unlikely to convict.

Prosecutors should continue to encourage survivors of sexual assault to come forward against their abusers.  One way to encourage survivors is by exploring alternative courses of action that enable prosecutors to see these cases through.  At the end of the day, a finding of guilt on a lesser charge such as battery, is still an acknowledgement by the perpetrator and by society that the accused act did in fact occur.  It will result in at least some level of accountability for the perpetrator and creates more positive evidence for a survivor to build a civil case against their perpetrator.  Most importantly, a conviction or guilty plea—even of a less serious offense— can provide recognition to the survivor that his or her courage to come forward was not for nothing.