Filing a Lawsuit in Civil Court
Legally, sexual assault is not only a crime against the state, but also a civil dispute between survivor and assailant. You may win a civil suit in court or you may choose to negotiate a contract, or "settlement," out of court even if you lose a criminal case. This means that two parties or their lawyers reach a legally binding agreement without holding a trial. In exchange for a promise not to sue or withdrawal of a pending suit, you may seek any or all of the following promises from the assailant. That he/she:
- keep away from you;
- withdraw from the University of Virginia (if a student);
- obtain counseling;
- apologize to you;
- pay your legal fees;
- compensate you for your medical or counseling expenses, lost tuition if you had to take a leave from school, lost wages, and for pain and suffering.
The first step is to consult a lawyer. Some lawyers offer a one-time, initial free consultation and will take this kind of case on a "contingency fee" basis. This means that the lawyer's fee comes only from the money received from the assailant as part of the settlement.
The decision to begin a civil suit, or stop one in process, is entirely your own. You don't need to contact the police or Commonwealth's Attorney since they are not involved.
It's possible that the assailant may be willing to negotiate a settlement upon being notified by your lawyer that you intend to sue. If no settlement is reached at this point, the lawsuit begins when your lawyer files documents at the local courthouse and notifies the assailant of the suit. The lawsuit is now in the "discovery" phase. Each side assesses the other's position. At this time, both you and the assailant are questioned by each other's attorney. These questions are customarily asked in the privacy of a lawyer's office. You would be asked questions by the assailant's lawyer only in the presence of your lawyer, who will advise you of any questions you don't have to answer.
Why might the assailant want to settle out of court?
Many people simply don't want the adverse publicity of a public trial, particularly if they fear the effects on their future careers, standing in the community, etc.
Second, the assailant may want to avoid a potentially large monetary judgment against him. A money judgment is a legal document prepared at the end of a successful lawsuit, which states that the defendant (assailant) owes the plaintiff (survivor) a specific sum of money as redress for the assault. In sexual assault cases, money judgments have ranged up to several million dollars. There are many ways to enforce that judgment, such as seizing property like real estate, cars, stocks, bank accounts, and wages. If the debt is still not satisfied, the assailant must continue to pay until the judgment is paid in full.
Third, the assailant's lawyer will probably tell him that his chances of losing a lawsuit are far greater than in a criminal case. In a civil case, you and your attorney need only convince the judge or jury that your version of the facts is "more likely than not," and so your chances of winning a civil suit are greater than in a criminal trial.
The First Steps and Cautions
In Virginia, a survivor has two years after an assault in which to begin a lawsuit. Nevertheless, you should contact a lawyer as soon as possible. If you are unsure how to find a sensitive one, or one who would work on a contingency basis, call one of the resources on the resource page for referrals. A lawyer will probably advise you to make complete notes about the event, if you haven't already. A diary recording your emotional distress and recovery can be useful. You will also be advised to avoid any contact with the assailant, if you can, and to notify your lawyer if the assailant tries to contact you.
Most importantly, there is a possibility that you could be sued for slander by the assailant if you make accusations that identify the assailant to anyone except these people: the police, prosecutor, your spouse, lawyer, doctor, licensed member of the clergy, or licensed psychologist. If this happened, your lawyer would most likely ask the judge for a continuance until the conclusion of your own lawsuit against the assailant or until the criminal trial. This doesn't mean that you shouldn't speak with a sexual assault counselor, or your dean, or someone in the Women's Center, for example. These are important sources of support. But conversations with these people are not protected by laws about privileged communications. Because this kind of counter suit is an attempt to silence you through intimidation, you may want to consult with your attorney and support system before making any quick decisions about what to do.
If you are sued for slander, you may be able to settle the case by dropping your own lawsuit against the assailant. Or you may have to defend yourself in the suit by proving that your statements about the assailant are true. If the assailant wins his/her suit you may be forced to pay money damages.