Sexual Violence Education and Resources

Criminal Prosecution

The process of prosecuting someone in the U.S. criminal justice system can seem onerous to the victims of sexual assault, and yet the experience can be cathartic. Much depends on one's expectations and preparation.

Below is an abbreviated description of how the system works, under ideal circumstances. Most sexual assaults are never prosecuted. The primary reason is because survivors do not feel they are able to file formal criminal complaints with the police. But, it could also be that the perpetrator is unknown or cannot be found, or the Commonwealth's Attorney feels that there is insufficient evidence to level criminal charges against him (or her). Often, acquaintance assaults fit the latter profile, but don't let this discourage you from coming forward, filing a complaint, and meeting with the prosecutor to explore this option.

If you decide to press charges, and if the Commonwealth's Attorney decides there is enough evidence, criminal charges are brought against the assailant. If the location of the assailant is known, an arrest takes place, and a bond hearing is held the next business day.

It may seem very impersonal, but from this point forward your role becomes solely that of "witness." It is the state of Virginia ("the People"), as represented by the Commonwealth's Attorney, that brings charges against the perpetrator, with your testimony serving as evidence. Your testimony is essential to successful prosecution, but you will only be in the courtroom during the time you testify. This means that you may be sitting outside the courtroom for hours until you are called. After you testify, the judge may allow you to remain in the courtroom.

The next steps are a series of hearings and courtroom proceedings.

Preliminary Hearing: 1–2 months after the bond hearing

The preliminary hearing, like a trial, is open to the public and lasts about one hour. It is a probable cause hearing: guilt or innocence won't be determined at this time. The prosecutor generally presents only enough evidence to establish the possibility that the assault occurred. Quite often, only the survivor's testimony is necessary. So, in nearly all cases, you must be present to testify. If you choose not to appear, it's almost certain the case will be dropped. It's normal to feel anxious before and during the hearing. It helps to prepare for this by practicing relaxation techniques and/or talking with members of your support system.

Grand Jury

Evidence presented at the preliminary hearing is reviewed by a Grand Jury. During this time, neither you, the attorneys, nor the accused are present in the courtroom. The Grand Jury makes a recommendation as to whether or not a trial should be set.

Circuit Court Trial: minimum 4–5 months after the preliminary hearing

While both the prosecuting and defense attorneys may request "continuances," the prosecution is limited by the constitutional right to a fair and speedy trial. Such limitations are not set on the defense, which is why many trials stretch out to as long as one year or more. This can be a very stressful time, since a court date may be set, a continuance requested, and the date postponed several times. 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. Although questions about a survivor's past sexual history are not allowed, a defense attorney may ask you very personal questions, as well as the same ones that were asked in the prelim. It will be helpful to practice under pressure with your court advocate. And, just as in the hearing, you must remain outside the actual courtroom until you are called in to testify.

Sentencing

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.

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. 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 may be emotionally devastating and possibly very frightening for a survivor. However, in addition to focusing on your own healing process, you can still bring further legal action against your assailant by filing a civil suit.