A young woman who has been sexually assaulted, or harassed in an unlawful manner, often feels doubly injured because the justice system seems to offer so little help to them. Point blank, this is only true because there aren’t many attorneys outside a prosecutor’s office who have every taken on a case to help a woman who has been assaulted. This system does offer remedies and if you’ve been harmed in a sexual way, you have important rights that need to be protected.
Sexual harassment, sexual assault and domestic violence are all heinous acts in their own right. The difference in degree does not override the pain nor residual harm these actions cause. Most often, the offenders are male – always in cases of physical rape, 90% or more in cases of other sexual assaults, and the majority of the time in cases of domestic violence and sexual harassment.
More frequently than in the past, however, women have become perpetrators, especially in cases of sexual harassment and sometimes domestic violence. This is reflective of the number of women in positions of power in the workplace, and helps demonstrate that illegal, sexual conduct is most often a product of the perpetrators abuse of power, more than any other factor.
The purpose of this post is to help raise awareness that victims of illegal sexual conduct are entitled to remedies through the law. It is not something that is simply dealt with in the criminal system, but also in the civil courts as well. As women have bravely opened up about the severity and pain of assaults and harassment, they have been confronted with the problem of a lack of a legal remedy. Instead, they are told that if they are believed, the person who did it can be punished, but that does nothing to help restore the victim. That is particularly true of harassment or even of a crime that may not be provable beyond reasonable doubt.
When that happens, a young woman is being horribly misled, and the advice she is hearing could be as painfully wrong as the assault itself. First and foremost, she needs emotional protection. That supersedes anything any financial protection can bring her way.
And it is more true for females than males, in part simply because of the physiological differences between the sexes. As a result of an assault, she could be pregnant, incapable of becoming pregnant later, she is typically smaller than men, more vulnerable in the composition of her physical anatomy, and the fear these disadvantages bring with them can be overwhelming.
She also has to deal with stigmatization. And part of the stigma, is the sense that someone somewhere may think she asked for it, she was seeking it out, she wanted it. They may also think she actually consented, then lied about what happened, out of guilt or vindication.
The fear of those stigmas would not exist if they didn’t happen. And they wouldn’t happen if there wasn’t some source of experience to back them up. In other word, yes, there are times when false allegations are made. And the importance of getting a story right is heightened because of the damage that’s caused when a story is made up. When that happens, it creates a cloud, not only over the accused, but over ever future victim’s story of abuse.
This problem of allegations that are not genuine, is something people often refuse to discuss and it’s something that many feminists actually try to discredit. But they do so to the peril of young women who actually are raped, abused, assaulted and harassed. If there is a deterrent against dishonesty in any report, from the victim or a perpetrator, then it becomes much more difficult for a guilty abuser to get away with wrongdoing in the future.
In reality, the civil system of justice in America is well equipped to deal with this. It’s costly, to be sure, but when it’s put to the test, the legal actions for damages against guilty parties often prevail. A sad, but good reminder of this in our own recent history is the twin trials of OJ Simpson over the killing of his wife, Nicole and her lover, Ron Goldman. Even though OJ was acquitted of criminal charges, where the case had to be proven beyond a reasonable doubt, he lost in civil court, to the tune of $25,000,000. Eventually Simpson wound up back in jail because he engaged in bank robbery, apparently trying to pay off his debt.
The differences between criminal and civil proceedings are profound – and in this attorney’s opinion – the civil system works almost entirely in favor of the victim – and of the truth. The first factor in this difference is that the proof standard in civil proceedings is by a preponderance of the evidence, i.e. more likely than not, rather than beyond a reasonable doubt. This is a much easier standard to meet and it balances the scales between the parties so that truth is the ultimate victor. The criminal system is designed to favor the defendant with the idea that it is better to allow a guilty man to go free than an innocent man to go to jail.
Another difference is that the Constitution’s “Confrontation Clause”, from the Sixth Amendment, does not technically apply to civil proceedings. While courts have held that due process still requires testimony, subject to cross-examination,in most cases – it is not necessary in a variety of instances, i.e. where the victims was incapacitated, etc. Furthermore, the courts may structure the means of testimony and cross-examination, to provide safety for a victim that isn’t available in the criminal context.
There are others, but the most important is the ability for the victim to recover damages from her assailant. This applies across the board in harassment, assault and even rape cases. From public comments about the social problem of sexual misconduct, it seems as though most people are unaware that this is true. They should ask OJ Simpson. In the end, it may not matter whether the perpetrator can be the damages or not – a jury may still award them, and the defendant will have to do everything he can to satisfy the judgment.
If you’re a victim of a sexual attack of any kind, you do have legal rights and the system can help you. Address your emotional and physical needs first, but if and when you are ready for the truth to provide you the best and ultimate vindication, we can help. It will never take away the horrible events that lead to your present pain, but it can make your life easier and better in the future.