The issue of sexual assault on our college campuses and in our communities received a lot of attention in 2015 and is likely to garner more still in the coming months. In the many articles published online, commenters routinely ask why anyone other than the police is involved in cases of sexual assault. The advice follows the logic that rape is a crime that should be reported to the police and prosecuted. The realities of the criminal justice system and sexual assault cases, however, are far more complicated, and demonstrate the need for multi-faceted solutions.
An individual, whether a student or a member of the community, who has been sexually assaulted can report the crime to the police. However, there are many reasons individuals do not report to the police or delay reporting to the police. Even when individuals report promptly and physical evidence and other evidence is available, as one recently published article summarizes, “rape is notoriously difficult to prosecute and harder to prove. Even after decades of criminal justice reform and dedicated efforts from survivors and advocates, prosecutors are generally reluctant to go after alleged persecutors aggressively, often fearing they won’t win a conviction. Trials can also be traumatic for victims, who frequently face juries biased by cultural assumptions about rape.”
The Appeal of Civil Lawsuits
Civil lawsuits carry a lower burden of proof than a criminal trial. Criminal prosecutions can result in significant jail time and require proof beyond a reasonable doubt for conviction. In civil trials, for offenses from civil rights violations and sexual harassment to medical malpractice and wrongful death, the burden of proof is the preponderance of the evidence. In civil cases, the plaintiff’s burden is to prove that it is more likely than not likely the offense took place as the plaintiff alleges in the lawsuit.
Additionally, the plaintiff can regain some control as the plaintiff is in charge of the litigation, not the prosecutor. In criminal cases, the decision to prosecute and how to prosecute is completely outside the individual’s control. The lawsuit is brought not as the individual vs. the defendant but as the state/county/people vs. the defendant. Even the terminology reflects this power and control dynamic where an individual is labeled a victim in the criminal suit.
By contrast, in a civil action, the individual assaulted becomes the plaintiff, “moving from being a victim to a survivor to a fighter for change” as attorney Gloria Allred described in an interview. That shift can be a part of the healing process and a successful case can bring social validation and a sense of agency. Additionally, the plaintiff can be compensated for the many kinds of harms sexual assault can cause, including medical bills, lost wages, and the severe emotional distress that interferes with so many other aspects of a person’s life.
Title IX and Additional Remedies
In the world of schools, including high schools and institutions of higher education, Title IX offers additional remedies for students who have been sexually assaulted. Title IX is a broad law in effect since 1972 that prohibits all forms of sex discrimination (including sexual assault) at schools that receive any federal funding. Most schools participate in federal programs or receive some form of federal aid and thus are required to comply with Title IX. Title IX requires the schools respond to and address every report of sexual assault it knew or should have known about and work to prevent sexual assault through education, outreach, and policy development.
The remedies available under Title IX are meant to ensure that students and other school community members can continue to enjoy their educational benefits and can include:
- Providing no-contact orders between people within the school’s authority (other students, faculty, and staff)
- Making adjustments to class or activity schedules as needed
- Changing on-campus housing options for students impacted, at their request
- Bringing an off-campus student on-campus to a residence hall
- Providing academic support that might include extensions for projects, make-up test dates, and in some cases withdrawals or other grade-related adjustments
- Ensuring a student is aware of student resources such as victim advocacy and counseling services
- Assisting students who have withdrawn to navigate financial aid penalties and decisions
- Providing access to counseling services and other support services at low or no cost
One of the principal benefits of a Title IX process is its promptness. Schools are required to take prompt action to help ensure student safety, with most cases expected to be resolved within 60 days of the school’s first notice of the situation.
Additionally, Title IX is a law of equity and fairness and is aimed at ensuring equitable access to educational opportunities. The process can be more appealing to those who have been assaulted who want a measure of accountability and to move on with their lives without participating in a legal process that could take years and either send someone to jail or cost the perpetrator or the plaintiff incredible sums of money. The most severe sanction a school can levy is a permanent separation from the school community that allows the person harmed to continue to attend the school and participate in its programs without further interaction with the perpetrator.
Our firm works with individuals who have been sexually assaulted or harassed and can help them navigate the options available to them. A student who has been harmed, for example, can potentially seek justice through a criminal process, a civil action, and a Title IX process concurrently or in another order. Working with an experienced attorney who understands the range of remedies and the complex dynamics at work in these sensitive cases can help individuals choose the paths that best matches their needs and goals.
By Alexandra Tracy-Ramirez, HopkinsWay PLLC. | © HopkinsWay PLLC 2016. All rights reserved.