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 Abuse in Indiana Schools
VIDEO: A discussion with attorney Shaunestte Terrell
Learn more about how Cohen & Malad, LLP’s sexual abuse litigation attorneys can help you here.
Transcription:
Hi, I’m Shaunestte Terrell. I’m an attorney on Cohen & Malad, LLP’s sexual abuse litigation team. And today I’m joined by Jaime Lira, our firm’s marketing and communications director. And we’re going to have a conversation about the problem of sexual abuse perpetrated by teachers in Indiana schools. In addition to representing sexual abuse survivors in civil litigation. I also host Cohen & Malad’s Support for Survivors podcast, which Jaime produces. And we talk about a variety of topics and interview guests to share their expertise and offer resources to help survivors get justice and healing. So I’d like to invite anyone watching this video to check out our podcasts. It is available on almost every podcast platform, and I think you could really get something out of it.
Shaunestte, we do cover so many interesting topics on the Support for Survivors podcast. And I thought it would be interesting to offer this larger conversation about sexual abuse in Indiana schools in a slightly different way and share it on the firm blog. So thank you for being flexible. Of course. So the media recently reported about a case filed against North central high school drama teacher. Nathan Shewell. Shewell was accused of abuse by several former students. Some claim that the abuse was sexual in nature while others mentioned verbal and physical abuse, RTV six reporter, Kara Kenney talked with roughly a dozen former students about their experience with the teacher. And she also interviewed you, Shaunestte. So what do you think is important for students and parents to know when it comes to issues of sexual misconduct?
Well, Jaime first and foremost, that is prolific. I think that people think that, you know, it can’t happen to me. It can happen to my kid, but it can, this is happening every day in schools, across the country. And certainly in schools within Indiana, it can happen to your child no matter what you think. It truly, we’ve had tons of parents who were just shocked and sad and obviously, and you know, that’s what we’re here for. But first and foremost, upon finding out that your child or another child has been abused, you have to call the police. The biggest issue at that point is the safety of your child and the safety of other children. Because as long as that teacher continues to be in that school, all those kids are at risk and we all have to work together to bring perpetrators into the light.
So they don’t have the opportunity to harm another child because as long as they stay in those classrooms and people don’t say anything, then they do and, you also have to look down the road. And that’s what we do at Cohen & Malad, LLP because oftentimes survivors of sexual abuse, and sometimes those who have been abused by a person in a position of authority, like a teacher, they suffer serious. Long-term ramifications as a result of the abuse and oftentimes ongoing mental health treatment is needed. That’s really expensive. And who does that burden typically fall on the parents or the survivor themselves as they get older. And that’s ridiculous. They shouldn’t have to have that ongoing costs for possibly the rest of their lives because this other person did this to them. And so we believe that the perpetrator and any negligent party who have some culpability in putting that child in harm’s way, they should pay for that.
And beyond that companies and organizations have to be held accountable. And I’ve said it a thousand times and I’m going to keep saying it until things change. I would love to be able to sit here and say that people will do the right thing because it’s the right thing to do, but it’s just not true. And we see it every day and we work to hold those schools accountable, and you know, other organizations too, it’s not just schools, churches, sports organizations, companies, you name it. We’ve probably seen it. And unfortunately the hard truth is holding them accountable is typically by going after their pocketbook. Because again, most of them just aren’t doing what they should be doing. And so in trying to hold those schools accountable in pursuing civil litigation against them, we have to abide by these arbitrary deadlines. I think most people have heard the term statute of limitations.
So they don’t really know what it means, but what it boils down to is there are deadlines in which we have to file things with court. Otherwise you are banned permanently from being able to civilly sue any of these organizations. It’s absolutely ridiculous. The deadlines are arbitrary. And you know, when most people find out that their kid has been abused, they’re not thinking about suing anyone rightfully so, why would you be? They simply want to hold that person accountable. And they want to make sure that their kid gets justice. But part of that justice is looking down the road and to be able to do that, we have to get some of these legal filings done in a really short period of time. And when we’re unable to help someone because of that statute of limitations, I think the kids are being victimized in another way, and it causes further damage because they’re just being, let down again.
And you know, the school has very serious responsibilities. First and foremost, you keep kids safe, period. That is what you have to do. And unfortunately as evidence in some of these discussions that we’re having here today, many schools failed to do that. They’re required 100% of the time to report any suspicion of abuse. Not I saw it happen it’s suspicion and if they do not do so. It’s not just, they look bad. They are subject to criminal prosecution. Yeah, it’s a crime. In fact, it’s not even just people within schools. It’s every adult in Indiana is what we call a mandatory reporter. That means again, if you even suspect child abuse, you are required to report that to the police. You do not have to directly witness it. If you hear concerning neighbor or concerning noises from your neighbors house, call it in. And if you don’t, you too are subject to being prosecuted, criminally.
And I have seen multiple school officials being charged for crimes because they failed to do so. And I think that that is an important point because we trust that our kids are going to be safe when they go to school. And when that doesn’t happen and they should have been, then they need to be held accountable. And the reason that law is so strict is first of all, as we said, child safety for this child, but it is proven that if we bring those perpetrators out into the light, then we can stop the abuse. There is no more further abuse because they cannot have access to children anymore. And again, that’s why we do what we do. We see over and over almost a daily basis schools that don’t report. I think oftentimes they think that keeping it quiet and trying to handle things internally is going to help protect the integrity of the organization. And that simply isn’t true. It’s the opposite, actually. These secrets will come to light and when they do, they will suffer much more damage than they would have if they’d done the right thing in the first place. And more importantly, fewer kids will be abused if they just report the abuse.
So I don’t think that what happened at North central is really unique. Is it?
Oh, no, definitely not. In many cases, we hear it as like an open secret that a certain teacher had sexual relations with students, but no one said anything and that’s illegal. That goes again, it goes back to that what we’re talking about with the mandatory reporting, and it’s not, it’s not unique. This happens all the time. Just since the beginning of this year, three Indiana school districts have been named in sexual abuse reports and it’s March. Two of those were here within Indianapolis, Nathan Shewell up at North Central and Tyler Carmichael at Speedway. And both of whom were known for these types of behaviors for years and no one called the police. Then the third one is actually a superintendent up in Northern Indiana, a superintendent. So it’s not just the teachers. I mean, that’s going to the top of the school corporation right there.
It’s shocking because you know, I did a little bit of research before we decided to have this conversation today and I found that across the state of Indiana. So this, this is our state. I found eight other reports of sexual abuse in 2020. So Shaunestte, why do you think that there’s more sexual abuse happening?
I don’t necessarily think that it’s happening more. I think that the MeToo movement has helped bring the conversation forward and taken away some of that shame that is often associated with sexual abuse. I think that we are experiencing a cultural shift finally, where people feel more empowered to come forward. But, you know, I want to make something clear. I’ve been prosecuting these crimes for a long time before we were doing this kind of work. And I want all survivors to understand you should never feel ashamed or embarrassed if you’ve been molested or sexually assaulted. Even if at the time, you know, you were a teenager and you thought that you were consenting to it, you, you were a child, it is not your fault. You didn’t ask for it. You didn’t deserve what happened to you. And again, I think that we do have a cultural shift happening, but we still have a long way to go. And, you know, part of what we do is trying to help people feel that empowerment to come forward and know that there’s somebody here on this side, who’s going to help them every step of the way, because it is a difficult process.
I think that’s a really good point. And, you know, like back to that larger issue about sexual abuse in schools, I found an interesting study called Educator Sexual Abuse, and it was conducted by Carol Shakeshaft. And she’s a professor at the Virginia Commonwealth University and she made several interesting points about Educator Sexual Abuse. And so one of the things that she said is that sexual abuse happens in all grades. And that 38% of reported adult abusers targeted elementary school students, which is a little surprising.56% actually abused middle or high school students, which I think is more of kind of like what we’re thinking. Then yet there was still 6% that actually abused students that were throughout kindergarten through 12th. So I found that really interesting. Her study went a little deeper and she actually found 225 cases of Educator Sexual Abuse in New York schools.
And none of those abusers were actually reported to authorities. And only 1% actually even lost their license to teach, which is surprising. And then part of that same study of all of the accused, all of them admitted to physical sexual abuse of a student. But then only 35% of them actually suffered negative consequences. And when she said negative consequences, she was talking about either getting fired, having a formal reprimand or a suspension from the school. And then 25% of those offenders received no consequences at all. Or they just had like an informal conversation like, “Hey, you should probably stop doing that”. And that I found really shocking. I mean, this was a study of Educator Sexual Abuse, and this is what they found. And that many of the people actually just chose to leave the school district and they kept their retirement packages and positive recommendations intact.
So they just moved on to the next school to do whatever it was that they were going to do. Just really surprising findings in this report that she put together. And she said, you know, even more shockingly was a recent report on sexual abuse in New York City. And what she analyzed was that 60% of the employees who were accused of sexual abuse were allowed to stay in that environment and that they were just transferred to desk jobs inside of the schools instead of directly being in front of the kids and teaching them. So I think that Shakeshaft’s study shows that really until recently the schools haven’t done a whole heck of a lot to prevent sexual abuse that was happening. She actually points to more recent things like lawsuit settlements, newspaper, and media coverage that has really started to shine a light on Educator Sexual Abuse and make schools want to do something about it. But that it’s still just not really high on the priority list for schools. So given all of that, Shaunestte, what do you think Indiana schools need to do to ensure the safety of our students and what do parents need to know and what do they need to do if their child reports that they’ve been sexually abused?
Well at schools, it’s very simple. It’s their number one priority here should be safety and ensuring the safety of those kids. They need to make sure they have got the proper protocols in place in terms of whether or not, and how to prevent it. And also going forward when someone does report or someone suspects, something, they should have very clear hiring and retention guidelines. You mentioned that in that study well, that’s exactly what happened with Nathan Shewell. He was dismissed from two other school districts in the past, but no one reported anything. So the next school, maybe didn’t know, and that’s how it continues to happen. So you need to have all these different protocols in place to make sure that they know when someone has those previous allegations. And so that the next school knows. So that there isn’t a next school and they need to report. The takeaway here at the end of the day for everyone is simple.
If you see something, you say something sounds easy because it should be not only is it the right thing to do for this child, you will protect children down the line. Likely not the abuser’s first rodeo, and they will continue to perpetrate abuse upon children until someone makes them stop. And if your child has been abused, call us, we can help you. You got to remember that those arbitrary statutes of limitations that we talked about a little bit more, they’re even more limited deadlines when it comes to school litigation and it’s all lawyer stuff, but it is really, really strict. And if we don’t get things done on time, then nobody will ever be able to help you. We can help you. We want to help you.
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.
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.