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Survivors Rights and Remedies – Criminal Justice System & Civil Justice System

This blog post is dedicated to the brave survivors of intimate partner violence, sexual abuse, childhood trauma and human trafficking.

 

Criminal Justice System

In the criminal justice, the survivor of sexual assault is a “witness” in the State’s case against the perpetrator-defendant. The case is brought by a governmental prosecutor. State of Florida, or Texas, or United States against the (perpetrator) Defendant. Such cases begin with a police agency investigation, a 911 call, or report by the survivor to the police. Since the case is brought by the “State”, a survivor’s wishes concerning the prosecution, may or may not be considered. In a criminal case a jury is asked to consider the guilt of the perpetrator (Guilty vs. Not Guilty). The offender is “presumed innocent” and the State must prove its case “beyond a reasonable doubt”. If the perpetrator is found not guilty, the State cannot prosecute again for the same offenses.

Restitution in the Criminal Justice System

Each State has their own way of managing restitution for crime victims. Ordinarily, restitution must be requested before or at the time of the sentencing of the perpetrator. The amount will be ordered by the Judge as part of the criminal defendants sentencing. Restitution can be for items such as medical expense or related, out of pocket expense for the survivor.

Victims Assistance Programs

Most States have an Agency or Department that help crime victims with financial assistance for medical care, lost income, mental health services, funeral expenses and other out-of-pocket expenses directly related to the injury. If needed, they can also be referred to support organizations within their home area. Many prosecutors’ offices will assist a crime victim apply for such benefits.
See National Association of Crime Victim Compensation Boards http://www.nacvcb.org/

Civil Justice System

In a civil case, a survivor controls his/her case. It is the survivor who decides whether to sue, accept a settlement offer or go to trial. When a survivor wins a civil case, no one will be sent to prison. Rather, a civil jury will determine whether an offender/perpetrator, or a third party, is liable for the injuries a survivor sustained because of the crimes, actions, inactions of the named defendants. In the civil justice, liability must be proven by the “preponderance of evidence” as opposed to “beyond a reasonable doubt”. Preponderance of the evidence means that the Plaintiff/ Survivor must prove that there is a more than 50% or greater likelihood that the defendant(s) committed all the elements of the wrongs they have been sued on. As an example, many people are familiar with the O.J. Simpson murder trial. He was found “not guilty” of the murders of his former wife Nicole Brown and her friend Ron Goldman by a criminal jury. However, the families of Nicole Brown and Ron Goldman filed civil cases against Mr. Simpson and in 1997 the families were awarded $33.5 million by a civil jury.

Statutes of Limitations

In each state there are mandated time limits for filing a civil case. If a civil lawsuit is not filed within these strict times, a survivor could be forever prevented from filing a lawsuit. In recent years many states have enacted extended time limits for victims of certain crimes, or acts. For example, a progressively larger number of states have extended the time limit for child victims of abuse to file lawsuits. These laws can be complicated, and an Attorney should be consulted with any questions concerning these limitations.

Types of Civil Lawsuits

There are several different claims that can be brought caviling. Future blogs will explore in more detail a number of these types of claims. With respect to claims against the offender/perpetrator directly often include “counts” of sexual assault, assault, battery, false imprisonment, intentional or reckless infliction of emotional distress, fraud, conversion, negligence, and wrongful death. In some civil cases a “third party” may be held responsible for the injuries a plaintiff/survivor endured and suffers. For example, shopping malls or other businesses that fail to take safety precautions for their customers, particularly after they are warned of crime in/or surround their premises. Schools, childcare centers, other institutions that do not properly conduct background checks of their employees, or just transfer their employees to another location when a claim or suspicion of child abuse has occurred.

Resources

https://victimconnect.org/learn/criminal-and-civil-law/
https://victimsofcrime.org/
https://www.rainn.org/about-national-sexual-assault-telephone-hotline/
800.656.HOPE (4673)
https://www.thehotline.org/
800.799.SAFE(7233)
TTY 800.787.3224

 

We are Dena Sisk Foman and Susan Ramsey, partners at McLaughlin & Stern’s West Palm Beach, Florida office. With great compassion, we are privileged to represent survivors of sexual assault and abuse.

 

Dena

My journey into law started with a bachelor’s degree from the University of North Carolina at Charlotte in 1998 and then I obtained my Juris Doctor from The University of North Carolina at Chapel Hill in 2001. I concentrate my in the areas of personal injury, car accidents, slip and fall accidents, negligent security, and trucking accidents.

I am passionate about my community and family. I am married to Bill Foman. We have 4 sons, and are committed to raising them as responsible and respectful young men. I have had the privilege of serving on the board of directors of Families First of Palm Beach County since 2014 and I am currently the President of the Board of Directors. I am a graduate of Leadership Palm Beach County Class of 2013 and Leadership Florida Class 33.

I have had the honor to be asked to speak on the issues of motivation, women’s issues, equality, and mental health.

In 2011, I published my first book, Only I Can Define Me: Releasing Shame and Growing into my Adult Life, in which I shared my own experience, strength and hope.

 

Susan

I am an active member of the National Crime Victim Bar Association. My professional experience began as a Registered Nurse in the Intensive Care Unit at Yale New Haven Hospital. While pursuing my bachelor’s degree, I was a counselor with the New Haven Rape Crisis Program, which was in the Yale New Haven Hospital Emergency Department. I had the privilege of counseling sexual assault survivors and performed seminars for local police departments, universities, and high schools. My work with the Rape Crisis program led me to attend law school. During my career, I have acted as Pro Bono Counsel for Rape Crisis Programs and have practiced law in several different State and Federal Courts. I am a member of the Palm Beach County Sober Home Task Force and Pro Bono Counsel for the Florida Association of Recovery Residences.

I share Dena’s passion about my own family. I am the proud mother of three (now adult) daughters and the enthusiastic grandmother of two.

I am also a survivor.