JAMES A. MURPHY, III
There are two types of legal actions that victims of sexual assault may be exposed to following a report to law enforcement. Understanding how these distinctly different systems work can facilitate an understanding of what the victim might realistically expect to experience.
The first and decidedly more complicated type of legal action is a criminal case. It is initiated when a law enforcement investigation uncovers evidence that suggests a law has been broken. At that time the suspect can be charged with a crime and the case is turned over to the prosecutor's office. The case is then reviewed by the prosecutor's office to determine what, if any, action to take next. The case may be presented to a grand jury, taken to trial, pleaded out or dropped altogether. Most, if not all, prosecutors do consider victim input to be an essential part of the analysis of the case. The ultimate determination of the prosecutor's office, however, is largely driven by an assessment of the ability to prove the case in a criminal courtroom.
Many prosecutors' offices have crime victim advocates on the staff. Although the advocates can not provide legal analysis or predict the outcome of the case, they can provide extensive information about the criminal justice process. They also can connect victims with other appropriate agencies and services in the community.
From a victim perspective, there are several points to note about a criminal case. It is important to understand that a criminal case is about proving a defendant has broken a specific law, that proof must be beyond a reasonable doubt and that the process for doing this is set by very specific rules, that the entire process is handled by professionals and the role of the victim is largely that of a witness, and finally, that in most jurisdictions criminal cases move very slowly.
In a criminal case a victim should expect:
- to be kept informed of the status of the case
- to be given the opportunity to express personal thoughts about the case
- to be given an explanation for the way a case is handled and its disposition
- to be allowed to speak at sentencing following a felony conviction
It is, however, important for a victim to understand that the prosecutor can not responsibly make decisions based solely on whether the victim is believed or what the victim wants. These decisions must be primarily predicated on the provability of a case in a criminal courtroom.
The second type of legal action is a civil case, which is substantially different in nature. It is initiated when a victim decides to hire an attorney in order to sue the defendant for monetary damages. Those damages can include assessments for pain and suffering and the case need only be proved by a preponderance of the evidence. For victims, the two significant things to note about a civil case are that they control the handling of the case and that the burden of proof is significantly lower than that of a criminal case. A civil attorney can help a victim assess the pros and cons of pursuing a civil case.
In either type of legal action, a victim can be well served by enlisting the support of both national and local advocacy groups. The following websites contain a wealth of information:
- The National Organization for Victim, www.trynova.org
- The National Center for Victims of Crime www.ncvc.org
- The Office for Victims of Crime www.ojp.usdoj.gov/ovc
For more detailed information about New York State, victims can access Saratoga County District Attorney James A. Murphy, III's website www.jimmurphyda.com.