A survivor of sexual assault should keep in mind that a criminal trial is not her only avenue of recourse. The survivor also has the option of bringing a civil action against her assailant. The two forums, criminal and civil, are vastly different.
In a criminal trial, the burden of proof is proof beyond a reasonable doubt. That means that in order to find an accused guilty, the jury must find that there is no reasonable doubt that the accused committed the crime. The standard reasonable doubt is, therefore, a very high standard.
In a civil trial, the burden of proof is different. The survivor must prove, by a preponderance of the evidence, that the accused assaulted her. Under the preponderance of the evidence standard, one does not have to prove with absolute certainty the allegations. Rather, one must prove that the allegations are more likely than not true. If the jury were to find that the probabilities of an allegation were 51% in favor of it and 49% against it, it would meet the standard of preponderance of the evidence. If the jury were to find that the probabilities of an allegation were 50% in favor of it and 50% against it, it would not meet the standard of preponderance of the evidence.
A good example of the differing standards was seen in the OJ Simpson case. Although the prosecution in the criminal trial was not able to prove that OJ Simpson committed the crime of murder under the proof beyond a reasonable doubt standard, the families of the victims were able to win a civil suit against OJ Simpson under the applicable preponderance of the evidence standard.
A survivor should note, however, that simply because one can sue, does not mean that in every instance she should. There is no question that the civil process can be very trying for the survivor. In most instances you will have to undergo grueling questions both in court and in the discovery process. As such, it is important that if you take this route, you are prepared both mentally and physically. You should also be prepared for the media frenzy frequently related to these types of cases. The reality is that these types of cases attract attention because they pique the public's interest. You should also be prepared in that, although many newspapers do not print the name of a sexual assault victim, they are not necessarily required by law to do so and may be less inclined to do so in the context of a civil proceeding. As such, it is important that you take into consideration your willingness to potentially have your identity exposed.
Other potential things that you may want to consider are whether your assailant has assets or is likely to have assets and what if any laws are in place in your State to protect you from being asked intrusive questions about your personal life. As to the issue of assets, bear in mind that winning a claim does not necessarily mean actually receiving any money. If the person has nothing, and does not come into money in the future, you may end up in the situation where you have a judgment but you cannot collect on it. As to the issue of what laws are in effect to protect you from unwanted questions regarding your personal life, speak with a qualified attorney in your State to find out exactly what protections are in place to protect you in the context of a civil case. Only you can decide whether the benefits outweigh the risks to you personally.
If you are considering bringing a civil proceeding against your assailant, it is important that you contact an attorney in your area to determine the statute of limitations relative to this type of action. A statute of limitations is the time you are allowed by law to bring your action. Once that time limit has passed, you may be forever barred from processing your claim. Be aware, however, that in some states the statute of limitations is quite long. There have been many changes in this type of legislation in the past few years so it is important that you seek the counsel of a qualified attorney in your area to see whether new legislation has extended the statute of limitations on an older claim.
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