Sexual Assault: How the Burden of Proof in a Criminal Prosecution Can Affect a Civil Lawsuit

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.

Sexual Assault Statutes of Limitations: Archaic, Arbitrary, Absurd Deadlines

By: Shaunestte Terrell, Attorney

Anyone who’s ever taken in an episode of Law & Order (or even Night Court back in the day) has heard that strange term: Statute of Limitations, or SOL as we attorneys frequently refer to it. It seems like its meaning should be self-explanatory, but is it? In some ways, yes, but it is also extremely complex and convoluted. And, unfortunately, that matters.

Recently, WRTV reporter, Kara Kenney, conducted an in-depth, exceptional investigation into the absurdity of Indiana’s statutes of limitations (SOLs) as they relate to sexual abuse and assault. What she uncovered is the single biggest impediment to helping sexual abuse survivors. In Kara’s report, the absurdity of Indiana’s SOLs has finally taken center stage. At Cohen & Malad, LLP we face this challenge with survivors every day.

Childhood sexual abuse is pervasive throughout our society and affects a large percentage of both boys and girls. If a survivor of childhood sexual abuse decides at some point that they want to pursue civil litigation, they only have until seven years after reaching adulthood to file suit. Loosely, that will typically mean until the individual’s twenty-fifth birthday. If the lawsuit has not been filed by that date, the survivor is forever barred from filing suit. On its face, that may not seem like such a huge deal. However, the average age of disclosure for a person who was sexually abused as a child is 52 years old. That is more than double the years of life that person has lived when their statute expires. This is extremely alarming. Usually, at the time of a survivor’s twenty-fifth birthday, they have not yet fully realized the effect of the abuse on his/her life. Sexual abuse is not like a car accident.  The survivor may not be fully aware of the misdeed, let alone the severe impact upon them for decades.

Real-life impact for sexual abuse survivors

It gets worse. If this is a person who was abused by someone at school (e.g., teacher, coach, etc.), there is an additional legal requirement. The survivor must file a technical, Tort Claim Notice within 180 days after their eighteenth birthday to give notice to the school that civil litigation against them may be pursued at some point. If that notice is not sent to the school within that time, the survivor is forever barred from holding accountable any school entity that was negligent in their hiring or retention practices. It is difficult to understand the rationale behind this deadline since it imposes a heavy burden on survivors while allowing perpetrators and their enablers to avoid responsibility and walk away scot-free.

Let’s look at this in a real-life, ongoing scenario. A local high school teacher was recently arrested for Child Seduction and Sexual Battery after assaulting a seventeen-year-old student. As is common, dozens of others have come forward since the perpetrator’s arrest to disclose repeated instances of sexual misconduct and assault at the hands of this teacher. Sadly, most of these cases are long past the expiration of the SOL.

One of these young women is now twenty-one years old. She was assaulted by this teacher when she was fourteen. At first, we were extremely optimistic that our Cohen & Malad, LLP team might be able to help this girl. But, sadly, we cannot. Why? Like almost all Hoosiers. she and her parents had never heard of the requirement to send a Tort Claim Notice so they didn’t do it. And why would they know of this obscure, arbitrary rule? Most attorneys aren’t even aware of this requirement, let alone a non-lawyer eighteen-year-old girl.

Survivors of sexual abuse deserve access to justice

Because this situation occurs so frequently among the survivors we meet with, we have joined with survivor groups, like Legislative Reform for Indiana’s Survivors (LRIS), to support efforts in the legislature to reform these archaic deadlines for the last several years. Unfortunately, our Indiana legislature has killed the bill, never even allowing it to have a hearing, despite the fact that such a bill has passed overwhelmingly in almost every other state where their legislature has voted on it. It seems nonsensical that Indiana legislators wouldn’t want to help protect children from sexual abuse and to help hold accountable perpetrators and enablers of days past. But that is the sad reality we face. The bill has already been killed for the 2021 legislative session as the Chairwoman of the Judiciary Committee refused to even grant it a hearing. Maybe next year, Senator Brown???

 

Filing Deadlines Vary for Boy Scout Sexual Abuse Claims

**UPDATE NOVEMBER 2020**

The deadline for filing claims against the BSA expired on November 16,2020 @ 5:00 EST.

Cohen & Malad, LLP is no longer accepting these cases.

While we do not anticipate this deadline to change, we would encourage you to periodically check the following website to see if anything has changed www.OfficialBSAClaims.com

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For survivors of childhood sexual abuse, it may take decades to begin processing what has happened to them. The unique struggles and obstacles faced by survivors of childhood sexual abuse can have a negative effect on their ability to pursue a civil lawsuit. This is because the survivor may not recall what occurred or connect their abuse to the harms they have suffered until much later. By the time the survivor makes that connection, the time frame for them to file a civil lawsuit may have lapsed. The legal term for the deadline to file a lawsuit is the “statute of limitation.” Statutes of limitation are laws passed by state legislatures that place time limits on how long a person has to file a lawsuit in court.

Concerns about whether a statute of limitation has expired frequently come into play in childhood sexual abuse cases. As an example, many survivors of childhood sexual abuse by a volunteer of the Boy Scouts of America organization have come forward. The Boy Scouts organization currently faces hundreds of accusers in multiple lawsuits across the country. The survivors filing lawsuits are from all walks of life and the age range for these survivors varies greatly.  Older survivors will have to show that their case fits within their state’s statute of limitations in order to be successful in pursuing their claim.

Some states are changing the statute of limitations to offer more access to justice for sexual abuse survivors

States across the nation are beginning to recognize this obstacle to justice and are taking a closer look at, and changing, their statutes of limitations for childhood sexual abuse cases. Delaware and New York have repealed requirements altogether, meaning that survivors of any age can seek damages in a civil lawsuit. Other states are considering legislation that would either eliminate limitations or expand them to allow more survivors to come forward. This process is referred to as statute of limitations reform.

Under current Indiana law, survivors of childhood sexual abuse have a limited amount of time to file a civil case against their abuser. The Indiana General Assembly is currently studying how statutes of limitations for civil lawsuits uniquely affect survivors of childhood sexual abuse. If the proposed changes to the statute of limitations law are adopted it would open a window of time to allow Indiana survivors of sexual abuse, whose statutes are currently expired, the opportunity to file a claim. Expanding the statute of limitations would allow more survivors to receive compensation for costs associated with treatment and rebuilding their lives. It would also hold perpetrators and organizations who enabled the abuse accountable for their actions and protect future victims.

States expanding or abandoning limitations on civil lawsuits have led the Boy Scouts of America to consider filing bankruptcy due to the large number of pending and potential claims against them. While the Boy Scouts have not officially filed for bankruptcy, they are exploring that option. Other organizations whose policies and actions allowed sexual abuse to occur, like USA Gymnastics, have used bankruptcy as a strategy to limit their losses and protect their assets.

VIDEO: Greg Laker explains statutes of limitation

Talk to an attorney for free to find out if you have a case

Statutes of limitations are always a concern in these types of cases, and the looming possibility of bankruptcy proceedings makes it even more necessary to talk with an attorney as soon as possible to protect your rights and interests. If you or a loved one is the victim of childhood sexual abuse at the hands of a Boy Scout troop leader or volunteer, our sexual abuse attorneys will stand with you throughout the civil litigation process. Please contact us for a free and private consultation on your case today.

Thousands of Boy Scout Members Allege Sexual Abuse

**UPDATE NOVEMBER 2020**

The deadline for filing claims against the BSA expired on November 16,2020 @ 5:00 EST.

Cohen & Malad, LLP is no longer accepting these cases.

While we do not anticipate this deadline to change, we would encourage you to periodically check the following website to see if anything has changed www.OfficialBSAClaims.com

Sexual abuse allegations from former scouts across the country are piling up against the Boy Scouts of America. The Boy Scouts organization, which provides programming for millions of children across the country, is embroiled in multiple lawsuits regarding their policies on background checks.  The civil lawsuits allege the policies allowed more than 7,000 perpetrators of sexual abuse to volunteer. By volunteering, perpetrators had unfettered access to kids as young as five years old. The allegations span many decades and, if founded, are evidence of pervasive and nationwide abuse.

In October 2012, an Oregon court ordered the Boy Scouts to release internal files that were kept to track suspected and convicted child molesters that volunteered for the organization. These files, referred to by the organization as “the red files” or the “ineligible volunteer list,” were nearly 20,000 pages meant for use by the organization to prevent pedophiles from volunteering.

But that list was rarely checked in the hiring process, according to the allegations in recent complaints. The fallout from the release of the red files has been tremendous—current estimates of the number of victims surpass 12,000 boy scouts who were molested and/or sexually abused by troop leaders or other volunteers from 1944 to 2016.

The release of the red files exposed men from every walk of life and every corner of the country, including Indiana. Indiana cases demonstrate the complacency of the Boy Scouts of America in using the red files for their intended purpose—preventing dangerous people from using the organization to gain access to harm children. Thomas Hacker was a troop leader and volunteer for the Boy Scouts in Indiana in the 1970’s before he was convicted of felony child sexual abuse in 1973. Following his conviction, Hacker moved to the Chicago suburbs where he was allowed to re-join as a volunteer with the Boy Scouts, resulting in his molestation and abuse of more children. Fifteen of those Chicago scouts filed suit against the Boy Scouts in 2018.

Yet another Indiana case involved an unnamed troop leader who was added to the red files in 1972 after admitting to molesting young scouts. But officials at the Boy Scouts organization wrote next to his name that he had been “cured” through psychiatric treatments and meetings with his minister, and was subsequently allowed to register as a troop leader once again. Ten years later, the same troop leader was allowed to host a sleepover, after which two boys accused him of molesting them. The troop leader eventually admitted to molesting the boys and resigned from scouting, but there is no indication on whether local law enforcement was ever notified.

If you are a survivor of childhood sexual abuse and exploitation at the hands of Boy Scout leaders and volunteers, you are not alone. Our attorneys have decades of experience fighting for survivors of sexual abuse in the civil justice system. Our sexual abuse attorneys have received professional training to deal with the unique circumstances that survivors of sexual abuse and trauma face. If you or a loved one has been sexually abused, please contact us for a free and confidential case evaluation.

 

How to Help Sexually Abused Children Suffering from PTSD and Other Psychological Injuries

By: Gregory L. Laker, Attorney

Tragically, we have seen an alarming increase in the sexual abuse of Indiana children recently. We shook our head in amazement when we read about the depraved sexual escapades of Jared Fogle, the formerly likeable Subway pitchman recently sentenced to 15 years in prison after pleading guilty to child pornography charges. More recently, an investigation into allegations of child pornography and child exploitation led to the abrupt resignation of Park Tudor basketball coach, Kyle Cox. It seems like every week we are reading about new allegations that involve one of our children’s teachers, coaches or mentors.