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

July 24, 2009

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.

14 Comments leave one →
  1. July 24, 2009 10:38 am

    I want to expand on #4 and #6, from my perspective as a civil litigator.

    In a criminal case, the constitutional right not to incriminate one’s self means that the defendant need no say a word. The jury may not like it, but the prosecutor cannot even make the accused get on the stand and admit he won’t talk. He can just never take the stand, sitting quietly at counsel table and whispering with his lawyer. The victim, though, is an indispensable witness for the prosecution. And a witness always has her credibility at issue. How can the trial not be a trial of her, when the defendant can just sit there and his lawyer can attack her credibility on the stand? It’s a structural issue that goes to the nature of the criminal process, which is The People (or in federal court The United States) versus The Defendant. The protections are set up to guard the accused against the power of the State, not to protect the victim.

    In a civil case, asserting a Fifth Amendment privilege comes at a cost. Usually, the jury can take an “adverse inference”: the judge instructs the jury that they can hold it against the party who refuses to answer questions. So civil litigation where two people are the only ones present for the central events is a more balanced matter: each party has to testify, usually at depositon and, if it gets that far, trial. They both have to tell their side of the story. Both get cross-examined. Both have their credibility at issue.

    I can’t give a personal perspective on this, but the difference between a trial where the defendant can just sit but the victim must testify and be cross-examined, and one where he also has to take the stand and her lawyer can examine him, could well be a major factor in how a rape victim views the proceedings.

  2. July 24, 2009 10:54 am

    One more thing: prosecutorial discretion.

    Prosecutors do not represent the victim. When the victim retains a lawyer in a civil case, that lawyer represents her, zealously within the bounds of the law. Prosecutors represent THE PEOPLE, which means the elected official or appointed bureaucrat who runs the office. If a victim walks into a police station and reports a crime, even if the police are polite and professional and dutifully investigate, the prosecutor’s office can get the file, look at it and say, “nah. Not bringing a case.” For any reason, without explanation. Prosecutorial discretion. That is a very disempowered position to be in.

  3. July 24, 2009 2:36 pm

    thanks for the education. i m part of a violence prevention group and my eyes are opening to the pervasiveness of this culture which constantly proves the innocent guilty until proven innocent.

  4. Sarah permalink
    July 24, 2009 4:24 pm

    I can give personal perspective on this as a woman who pursued a civil trial.

    The sexual abuse I experienced was traumatizing enough that I couldn’t bear the thought of going through the legal process. I couldn’t bring myself to tell anyone, let alone get in front of a courtroom and repeat detail after detail and face attacks from the defendant’s lawyer. (My abuser had lots of money, and I had none, so I’m sure he would have found a brutal and effective attorney.) I went through *years* of counseling to help me get to the point where I could even report the crime.

    Once I got to that point, I found out the statute of limitations had expired and I was no longer able to pursue a criminal charge. The detective I spoke to was remarkably sympathetic and clearly felt bad that she couldn’t go after him on my behalf. She did say I could still pursue civil charges though, so I found a lawyer. By then, I was strong enough to make it through my lawyer’s questions but would still panic when I even thought of what the opposition would do. My healing had gone a long way, but I still wasn’t there yet.

    We ended up settling out of court which saved me from having to give any kind of deposition. Now, I feel healed and I no longer panic. I’ve got a sense of closure now that he had to answer for what he did to me.

  5. July 24, 2009 5:44 pm

    Another point – when one files criminal charges against another and the state takes over the case, it becomes a public matter. Although there are rape shield laws that prevent the victim’s name from being published, it’s almost impossible to keep it secret. The courtroom is usually open to the public. Children are sometimes allow to testify via video link, but not always. The accused has a constitutional right t oconfront his/her accuser. Some victims can’t face that. In a civil suit, there is always the possibility of settlement, which saves the victim from having to testify in open court. The victim (or civil litigant) can ask to have the case filed under seal or he/she can file as “Jane Doe” or something along those lines. Further, the shameful fact is that sex offenders are lowest on the totem pole in prison. Maybe the victim does not want to be responsible for sending someone to prison and causing that person to be raped.

  6. Ista permalink
    July 24, 2009 10:13 pm

    Thanks! This was really interesting and makes a lot of sense.

  7. July 25, 2009 10:08 am

    Thanks for a well written and informative post!

  8. July 25, 2009 2:39 pm

    Thanks for this. it’s been enormously helpful.

  9. Stacy Nunnally permalink
    July 26, 2009 1:25 pm

    Thanks, Jaclyn. This is all the stuff we are NOT hearing on mainstream media. All we hear is that she waited for a year to come forward (not true) and that she is going with a civil instead of criminal case. The speculation, as usual, is all about how this must mean the victim doesn’t have proof or is just wanting money. We never see or hear experts from the violence against women prevention movement. I am going to re-post this. Thanks for putting it out there for all of us.

  10. Heather permalink
    September 27, 2010 1:44 am

    #11: It sounds like the police botched the investigation, potentially rendering whole swaths of information more likely to be excluded in criminal proceedings than in civil proceedings

  11. Dominique Millette permalink
    November 2, 2010 7:55 pm

    This was very informative. I wonder how much of it applies in Canada or in any other countries besides the U.S. Also: can you pursue a civil case and a criminal case at the same time?


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