Why the Charges are Civil (and Why That Doesn’t Mean She’s a Lying Golddigger)

A lot has already been made about why the victim in the Roethlisberger case has pressed civil charges but not criminal ones. Bloggers and commenters across the web have begun suggesting this undermines her credibility and makes it more likely that she’s a “lying golddigger.” (I won’t be sending these folks traffic by linking to them.)

In reality, there are TONS of reasons a rape victim may file civil charges but not criminal ones. For one, the burden of proof is easier in a civil case. In a criminal one, even DNA evidence may not be enough to prove the accused did it “beyond a resonable doubt” if he’s claiming the sex was consensual. But in a civil case, the evidence need only prove that it’s more likely than not that the accused did the crime.

But burden of proof is only one reason among many. I asked the fantastic Jessie Mindlin and Lydia Watts of the Victim Rights Law Center (and my fellow CounterQuo founding members) about this issue, and they said that burden of proof is far from the most common reason victims choose civil suits over criminal ones.

While we don’t know this particular woman’s reasons, here are 10 good reasons Mindlin & Watts see all the time:

1) Different remedies are available in a civil case that cannot get in a criminal case. E.g., as a condition of settlement in a civil case, a victim can ask that the defendant go through mental health counseling, have to give a donation to a rape crisis center, agree not to stay in a hotel without a chaperone, etc. I’m not suggesting the victim in this case wants any of this, but rather that there is lots of room in a civil case to structure a resolution that feels relevant and promotes the victim’s healing. In contrast, at the end of the day, in a criminal case it is the state/the government against the defendant, and the victim is the state’s witness.

2) In a civil case, the victim can address more than just the perpetrator’s behavior. In a civil case, the victim can seek to hold certain third party defendants – e.g., her employer – liable for discriminatory behavior based on the employer’s failure/refusal to believe that she was raped.

3) Depending on the time of crime to be charged, the victim may be able to resolve civil case more speedily than criminal case. This issue is especially important for lower income victims (who, as we know, perpetrators often prey on because they are likely to be more vulnerable in various regards).

4) Different rules of evidence apply. E.g., In a criminal case the defendant can plead the 5th. If s/he pleads the 5th in a civil case, the jury is allowed to interpret the defendant’s refusal to testify against him or her.

5) Some defendants are more concerned about a criminal conviction than they are about civil settlement, and so may be more willing to admit wrongdoing (or settle case and agree to various conditions w/out admitting wrongdoing).

6) One gets to take depositions of the other side in a civil case, which can be a good vehicle for getting perpetrator to commit to certain facts. The defendant doesn’t ever have to take the stand in a criminal case, and certainly does not have to agree to be interviewed by lawyer on the other side (i.e.,the prosecutor).

7) In a civil case, the victim is a party to the case. The case is captioned VICTIM’S NAME v. ASSAILANT’S NAME. That is more than a figurative difference… when a party to the case, the victim has control over the direction and strategy of the case. Whether to proceed with some motion or action, what to ask for in terms of remedies, whether to settle, which witnesses to call, etc. are all decisions a party to a case gets to make, and the attorney representing that person/party has an ethical obligation to confer with and follow the desires of the client (as long as the desires/directives are legal). In a criminal case, it is STATE OF XXX (Or US in federal case and in DC) V. ASSAILANT. That shows the fact that the prosecutor literally represents the interests of the state/government to “right the wrong” created by the criminal act… that means jail or probation/parole as the way to right the wrong. Though there is often restitution allowed (and often others sorts of things CAN be ordered as conditions of release and/or as part of the sentence), that is not the main focus of the criminal case. In addition, the prosecutor DOES NOT represent the victim and so has a different set of ethical obligations that DO NOT include conferring with or doing what the victim thinks is best/wants.

8 ) Many victims have mixed feelings about employing a process that could send someone to jail, particularly if there is some pre-existing relationship, or the assailant is a person of color (many communities of color, rightfully indignant about the over-representation of men of color within the penal system in the US, do not want to be a party to that system).

9) The idea of civil suits is, in part, to “make whole” the person who is suing. Jail does nothing to rectify the harm inflicted on the victim. Certainly, in our society, money is one way to make a person whole – if I have to quit my job due to the trauma following a rape, I certainly have an identifiable dollar amount that I am out directly attributable to the rape, plus counseling expenses, plus loss of ability to earn in the future (maybe), then we get into punitive damages.

10) Some constitutional protections to criminal defendants, such as right to counsel, do not apply in a civil case. This means a criminal defendant will get an attorney, and if s/he cannot afford one, one will be appointed. This can be very daunting, particularly for an unrepresented victim (which is the case for the vast majority of victims in criminal cases, since the prosecutor does not represent the victim), who has no attorney and no actual (though prosecutors do more and more confer with victims, but are not required to) voice in the criminal proceeding.