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.

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.

The Statute of Limitations: How Inaction Can Kill Your Personal Injury Lawsuit

by: Edward B. Mulligan V , Attorney
As a lawyer who represents personal injury victims, I can tell you that each case–even the very best–must face and overcome numerous legal hurdles between the filing of the complaint and trial or settlement. While some of these “hurdles” are easily overcome, others can pose serious problems for even the best cases.
The legal hurdle that can have the most all-or-nothing consequences for personal injury cases is known as the “statute of limitations.” A statute of limitations is exactly what it sounds like: a law or rule enacted by your state’s legislature that limits the amount of time you have to file a lawsuit. The statutes do vary from state to state with some offering longer deadlines than others.

Medical Malpractice and Adoption

by: David J. Cutshaw, Attorney
In an interesting case, the Indiana Court of Appeals recently ruled that adoptive parents could proceed with a medical malpractice case against a hospital for misrepresenting the health of a child the couple sought to adopt. In Jeffrey v. Methodist Hospital, adoptive parents asked the hospital for the health records of an infant to see if the infant had any major medical problems before they decided to adopt the infant. The hospital “neglected” to provide the adoptive parents and their attorneys with a sonogram report that showed the infant had a hole in his brain which was indicative of severe developmental issues.