Criminal Prosecution: Steps in the Process
The process of prosecuting someone in the U.S. criminal justice system can seem lengthy and burdensome to survivors of sexual assault, dating violence or stalking, but the experience of confronting the perpetrator can be cathartic. It’s important to have support through this process. The Student Resource Guide outlines all the different forms of support (legal, university, counseling, and advocacy) available to you.
Below is an abbreviated description of how the system proceeds under ideal circumstances. Following an investigation by law enforcement, the Commonwealth’s Attorney will determine if there is sufficient evidence to bring criminal charges. If you agree to press changes, the Commonwealth’s Attorney will formally file charges and the police will arrest the assailant. Once the perpetrator is arrested, a bond hearing is held the next business day.
At this point, the State of Virginia (“the People”) is responsible for bringing the charges against the perpetrator. You are not the complainant, but rather the key witness for the prosecution. Your testimony is essential to successful prosecution. You will only be in the courtroom during the time you testify, and then after your testimony you may remain in the courtroom. Support persons from Victim/Witness, SARA, and other resources can prepare you and wait with you during these proceedings.
The next steps are a series of hearings and courtroom proceedings.
Preliminary Hearing: 1–2 months after the bond hearing
The preliminary hearing is held to determine probable cause in felony cases: guilt or innocence won't be determined at this time. The preliminary hearing, like a trial, is open to the public and lasts about one hour. If you are a victim of sexual assault, the prosecution can petition to have the courtroom closed to the public at this stage. The prosecutor generally presents only enough evidence to establish the possibility that the assault occurred. Often, only the survivor's testimony is necessary, so you must be present to testify. If you choose not to appear, there is a high likelihood that the case will be dropped. It's normal to feel anxious before and during the hearing. You can have advocates and support persons with you at the hearing. Staff from the Victim/witness office can prepare you for the hearing and accompany you if you want. It helps to prepare for this by practicing relaxation techniques and/or talking with members of your support system.
The evidence presented at the preliminary hearing is reviewed by a Grand Jury to determine that there is cause for a full trial. During this time, you, the attorneys, and the accused are not present in the courtroom. The Grand Jury makes a recommendation as to whether or not a trial should be set. If the Grand Jury indicts the defendant, a trial will be set in Circuit Court. For more information about how the Grand Jury works, see the Grand Juror’s Handbook provided by the Virginia Judicial System.
Circuit Court Trial: minimum 4–5 months after the preliminary hearing
The trial date set by the grand jury may not be the final date of the trial. The trial may be postponed if the prosecution or defense requests a “continuance.” While both the prosecuting and defense attorneys may request "continuances," the constitutional right to a fair and speedy trial limits the prosecution. Such limitations are not set on the defense, which is why many trials may take one year or more. This can be a very stressful time, and it’s important to have emotional support through the process from a counselor. As time passes many survivors begin to heal; memories change and any physical injuries fade away. If you prepare yourself for this possibility, the emotional impact of any delays may not seem so extreme.
During the circuit court trial, you will be questioned on the witness stand as you were in the preliminary hearing. A defense attorney may ask you very personal questions, as well as the same ones that were asked in the preliminary hearing. It will be helpful to practice with your court advocate. And, just as in the hearing, you must remain outside the actual courtroom until you are called in to testify.
For more information, see Circuit Courts in Virginia.
If the assailant is found guilty, you may file a Victim Impact Statement with the judge prior to sentencing. This allows you to tell the judge how the assault has affected you, and your family, emotionally and economically. You may also be permitted to testify at the sentencing hearing.
In Virginia, the jury determines the maximum sentence in a criminal trial. Rape and sexual assault charges, by law, range from a minimum of five years to life. The judge may suspend all or part of that sentence (meaning it won’t be served immediately, but can be imposed at a later date). All felony jury trials are bifurcated (the sentencing portion of the trial is separate from the proceeding to determine guilt or innocence), so if the defendant is found guilty, the Commonwealth can introduce copies of the defendant's record for the jury to consider during sentencing. There also is no parole in Virginia for violent crimes. As a result, defendants generally serve 85% of their sentences.
If the Assailant is Found Not Guilty
A "not-guilty" verdict can be a very painful outcome for a survivor, but even the act of having confronted the perpetrator can help in the long term healing process. It is important to have ongoing support from mental health counselors and other resources to ensure that you can process the outcome. However, in addition to focusing on your own healing process, you can still bring further legal action against your assailant by filing a lawsuit in civil court. A civil suit can be filed within 2 years of the incident.