Author: Blair Corbett posted in Survivor Support on 2016-02-23 01:00:14
The criminal justice system was not designed to support, or even empower, survivors of sexual abuse. It’s goal, to punish those who victimize others, is certainly important, and the vast majority of prosecutors are good people who genuinely want to help. But where survivors are concerned, the system often falls short. We’ve spoken to many survivors who have honestly felt used by the system, treated as little more than pieces of evidence. That’s not to say we don’t believe in the sort of justice sought by the criminal justice system, but its treatment of survivors leaves much to be desired.
Justice itself is a tricky concept, one that’s often used without much attention to what it actually means. In the criminal system, justice is a matter of proving that a person committed some act that society doesn’t condone. We punish them for it, putting them in jail, listing them on sex offender registries and, most commonly, fining them an amount of money. That’s justice, according to the criminal system: the state or federal government gets some cash and an offender gets put away.
Of course, there are obvious elements of true justice in this equation. Locking away sex offenders can prevent future abuse, saving other children from trauma and the drastic, often lifelong, challenges it can cause. But it can’t be the whole story.
In many states, however, it is. Only 18 states are currently governed by constitutional amendments requiring that convicted offenders reimburse their victims. This is sometimes called “court-ordered restitution,” but in most states, even those with constitutional amendments, it’s entirely within a judge’s purview to limit the amount of restitution required.
Some states limit the scope of restitution from the start. In Indiana, for example, courts aren’t allowed to order restitution for future expenses, like on-going counseling. Only “actual costs incurred” are compensated by this scheme, but that’s basically limited to medical expenses for immediate physical injuries and lost wages. I think most of us would agree that the “actual costs” survivors are burdened by as a result of their trauma goes far beyond that.
No matter the state, restitution never covers so-called “pain and suffering,” a category of damages used in civil lawsuits that attempts to compensate victims for the experience of physical pain and emotional distress. Of course, restitution is only ordered in cases where an offender is convicted of a criminal offense. That’s a major problem in itself, since only 3 out of every 100 instances of sexual assault are even referred to criminal prosecutors, according to the Rape, Abuse & Incest National Network.
Survivors of abuse can also turn to state crime victim compensation programs. Every state has one of these funds, as do Puerto Rico, Washington, D.C. and the US Virgin Islands. The funds are subsidized primarily by fines levied on convicted offenders, with a chunk of federal money thrown in, too. This compensation will generally cover medical expenses related to the crime, mental health counseling and lost wages.
But to even apply, a victim has to satisfy several conditions, some of which are particularly difficult for survivors of childhood sexual
abuse. Most importantly, and a major impediment to people who were victimized during youth, most states require that the crime was reported to the police “promptly.” Pennsylvania, as just one example, gives victims only 3 days after the crime to report - which is frankly ridiculous. Thankfully, there are usually exceptions for victims who were under the age of 18 at the time of the crime. North Carolina, for example, gives survivors who were victimized as juveniles up to 2 years from the date of disclosure to file an application for compensation. That’s one of the more liberal laws we’re aware of, not least because it recognizes the extreme difficulty that disclosure presents for many survivors. Many other states place a concrete time limit on applications. Like in Nevada, where survivors of childhood sexual abuse lose their right to file for compensation at the age of 21.
But crime victim compensation programs have one major advantage over court-ordered restitution: a conviction isn’t required. Most states, however, cap the amount of total compensation allowable at around $25,000. Some state caps are lower, while others are higher. You can learn more about your state’s compensation fund at the National Association of Crime Victim Compensation Boards.
Beyond restitution and compensation funds, survivors really have only one other option for pursuing compensation: filing a civil lawsuit.
The civil court system is completely distinct from the criminal justice system. Rather than holding an offender responsible to the state for their actions, a civil lawsuit seeks to hold them accountable to victims. Survivors, to a great extent, control these cases themselves. They take a more active role in the litigation, insofar as they are comfortable doing so - a good sexual abuse attorney will never attempt to coerce a survivor into participating in ways that they don’t want to, even when it would likely help the case’s chances of success.
Perhaps the biggest difference, though, is the “burden of proof” required. In a criminal case, prosecutors have to prove “beyond a reasonable doubt” that an accused offender is guilty. Civil courts lower that bar, to a “preponderance of the evidence.” That means plaintiffs have to prove that it’s more likely than not their injuries and emotional trauma were caused by the defendant’s actions. “More likely than not” is sort of an odd concept here, so bear with me. Let’s say you present 100 different pieces of evidence, hoping to show that someone harmed you. If a jury believes that 51 of those pieces of evidence support your case, they would be bound by the court to find that person liable for your losses. It’s more likely than not, since a majority (however slight) of the evidence shows that your injuries were caused by the defendant.
Civil lawsuits don’t have to be filed against offenders, although they can be. Many survivors choose to file lawsuits against organizations and institutions, like schools, whose negligence allowed abuse to occur unchecked. For that matter, victims of crime don’t just file lawsuits to secure compensation. Some survivors choose to file lawsuits after a criminal prosecutor decides not to pursue charges against an offender (which happens in most cases). The alternative, allowing an offender to walk away without suffering any repercussions for their actions, is about as far from justice as you can get.
Brian Kent, Esq. is an attorney with over 10 years of trial experience. Prior to representing survivors of sexual abuse in civil lawsuits, he worked as a sex crimes prosecutor for the Montgomery County District Attorney’s office in Pennsylvania. Along with Jeff Laffey and Paul Bucci, Brian founded Laffey, Bucci & Kent, LLP, a plaintiffs’ law firm based in Philadelphia. He is the lead sponsor for AbuseGuardian.com. @AbuseGuardian
Ark of Hope for Children and Blair Corbett deeply thank Brian Kent for his very helpful article. There are so many twists and turns in a sex abuse survivors life, whether child or adult, that we need resources such as this as a guide. If you are a survivor of child abuse, whether you are representing a child or are now an adult wondering where to turn, Ark of Hope for Children strives to serve by connecting you to professionals like Brian Kent and his law firm.
Our most cherished role is acting in a mentoring role through our soon to be revamped text only live chat survivor support site Removing Chains. We welcome you to check out RemovingChains.org and the wealth of services we plan to soon have there. If you would like to submit a quality article such as this please contact Blair or an Ark of Hope representative hererong>.