Civil lawsuits are another option
for pursuing justice against a sexual offender. This page is
designed to be helpful to you in learning more about filing a civil
lawsuit.
Why Might a Victim of Crime
Choose a Civil Lawsuit?
Sexual assault victims have a
variety of reasons for choosing a civil lawsuit. A lawsuit
may be used to recover the costs of counseling, medical care, and
time lost from work. It may also be used to compensate the
victim for pain and suffering, damage to family relationships, and
psychological damage inflicted.
Just as important to many
victims is the opportunity a civil lawsuit presents for furthering
justice in their case. The financial punishment
which can result from a civil lawsuit may be an appropriate
way to make the perpetrator feel an impact as a result of the
crime he committed. The perpetrator may have been able to
avoid testifying in a criminal trial; however, he can be compelled
to testify in a civil case. A civil lawsuit can serve as a
way for victims to make a public statement that a crime occurred
if the victim was told by criminal justice officials that there
was not enough evidence to pursue criminal prosecution. Or a
victim might choose a civil lawsuit as a way to continue to pursue
justice after a "not guilty" or "guilty" verdict in a criminal
case.
Any Crime Victim May Be Able to
File A Civil Lawsuit Against A Perpetrator Or Other Responsible
Party
 |
Civil Justice for Victims of Crime
This easy-to-read booklet
from the National Crime Victim Bar Association is
designed to give crime victims and those who work with
victims a basic understanding of the civil justice
system and to make them aware of the civil justice
option. You can access the booklet for free
on-line
(Free, downloadable Adobe Acrobat
PDF reader is
required to access the program). |
|
(Source: National Crime Victim Bar
Association)
Regardless of the outcome of the criminal prosecution, or even if
there was no prosecution, crime victims can file civil lawsuits
against offenders and other responsible parties. Unlike the
criminal justice process, the civil justice system does not
attempt to determine an offender’s guilt or innocence.
Offenders are also not put in prison. Rather, civil courts attempt
to ascertain whether an offender or a third party is liable
for the injuries sustained as a result of the crime. If defendants
are found civilly liable, courts may order them to pay monetary
damages to victims. While money awarded in civil lawsuits can
never fully compensate a victim for the trauma of victimization or
the loss of a loved one, it can be a valuable resource to help
crime victims rebuild their lives.
How the Civil Justice System
Differs from the Criminal Justice System-- A Comparison in Ohio
| Factor |
Criminal Justice System |
Civil Justice System |
How is the crime
defined? |
A
violation against the State |
A
violation against an individual |
| Who prosecutes? |
The
State of Ohio prosecutes and controls the action. |
The
victim prosecutes and controls the action. |
| What is the
victim's role? |
The
victim is considered a witness to a crime against the State.
While the prosecutor is obliged to discuss a plea bargain or
dismissal of charges with the victim, often these decisions
are based on factors that have little to do with the victim. |
The
victim makes the decisions. The victim is a party to the
action and is entitled to all information relating to the case
and can make the decision with respect to any settlement of
the claim. |
Will you need to
hire a lawyer? |
No.
The County Prosecuting Attorney handles the case. |
Yes.
|
What is the
burden
of proof? |
The
State (the Prosecuting Attorney) must prove the perpetrator is
guilty beyond a reasonable doubt. |
The
victim need only prove that the perpetrator is liable "more
likely than not"-- there must only be a "preponderance of
evidence", which is defined as more than 50%. |
| Can the
perpetrator be forced to testify under oath? |
No.
The State of Ohio cannot compel the perpetrator to testify
about his crimes, and cannot comment upon the
fact that the
perpetrator refused to testify. |
Yes,
the victim can compel the perpetrator to testify under
oath both before and during the trial. |
| What assumptions
will the court make? |
Perpetrator is presumed
innocent until proven guilty. |
Victim and perpetrator
appear on equal footing. |
| Can I try again? |
If
the perpetrator is found
"not guilty", the state can not prosecute him a second time
and the state can not appeal
the decision. |
Victim can sue the perpetrator in a civil court even if the
perpetrator has been found guilty in a criminal prosecution |
| Who will the
perpetrator owe an obligation to? |
If
found guilty in a criminal court, the perpetrator is subject
to the punishment of that court (such as prison or jail time,
probation, fines). The obligation is owed to the State
of Ohio, and the victim will not obtain money as compensation
for injuries. |
If
found liable in a civil court, the perpetrator owes an
obligation to the victim for medical and counseling expenses,
psychological damage, pain and suffering, damage to family
relationships, and lost wages. |
| Statute of
Limitations
|
Ohio's statute of limitations for most sexual crimes
(including rape, sexual battery, unlawful sexual conduct with
a minor, and gross sexual imposition) is twenty years.
Please contact our Law Enforcement Liaisons for more
information.
|
In most cases, sexual
assault victims in Ohio have a limited amount of time to file
a civil lawsuit-- normally within one year of the assault.
This "statute of limitations" may be altered in special
circumstances. In general, the statue of limitations begins
with the date of accrual- the date the crime occurred, or the
point when the victim became
aware of the crime or aware of the damage done by
the crime. Generally the statue of limitations for
crimes committed against children begins when the victim turns
18, or when the victim becomes aware of the crime or the
damage done by the crime.
Check with an attorney for
the most current information which applies to your situation.
Assault and
Battery…1 year from date of accrual
Negligence…2
years from date of accrual
Intentional
Infliction of Emotional Distress…4 years from date of accrual
Accrual Dates May Include
Ø
Date of Occurrence
Ø
Date of Last Occurrence
Ø
Age of Majority
Ø
Mental Soundness
Ø
Perpetrator out of Ohio
Ø
Discovery of Repressed
Memory
Ø
Discovery of Injury
Ø
Discovery of ID of
Perpetrator
Ø
Discovery of Negligence of
Third Party
Ø
Third Party Action
Ø
Fraudulent Concealment
Ø
Equitable Estoppel |
| Factor |
Criminal Justice System |
Civil Justice System |
How to Find an Attorney
For help finding a qualified attorney, you may
wish to consult with the National Crime Victim Bar Association,
which provides victims referrals to local attorneys specializing
in victim-related litigation. The referral service can be reached
at (202) 467-8753 between 8:30 a.m. - 5:30 p.m. (EST) Monday
through Friday. Questions can also be e-mailed to
victimbar@ncvc.org.
You might also consult with knowledgeable people in your community
about reputable attorneys with experience representing crime
victims.
Additional
Information About the Civil Justice
System
(Source: The National Crime
Victim Bar Association)
Advantages and Disadvantages of Civil Litigation
A.
Advantages
1.
Indemnification - cost the victim has
incurred as a result of the crime
2.
Accountability - perpetrator answers
to the victim
3.
Sense of Control
4.
Personal Justice
5.
Incentives for Crime Prevention
6.
Promote Change
B.
Disadvantages
1.
Civil actions can be expensive
2.
Victims may be subjected to the
trauma of a second trial
3.
Civil suits can be very slow -
usually 1year or more
I. Who
does the victim sue?
A.
First Party Defendants
1.
Offender
2.
Co-conspirators and Accomplices
3.
Parents and Supervising Custodians
B.
Third Party Defendants
1.
Landlords, Innkeepers, Schools,
Hospitals, and Merchants - for inadequate security
2.
Offender's employers - for negligent
hiring and negligent supervision
3.
Corrections and Mental Health
Officials - for release of dangerous persons
4.
Government - for failure to protect,
failure to warn
II. Torts
101 - A tort occurs when a person intentionally injures another or
when a person's failure to perform his or her duty of care is the
cause of injury to another (negligence).
A.
Intentional Torts
1.
Examples include:
a. Battery
b.
Assault
c.
Wrongful Death
d.
Intentional Infliction of Emotional
Distress
2.
Elements of Intentional Torts
a.
The Act
b.
Intent - meant to do it
c.
Causation - causing injury as a
result of the act
d.
Damages
(1) Compensatory - compensate for wages,
medical bills, pain and suffering
(2)
Punitive
3.
Affirmative Defenses of Intentional
Torts - Yes I did it but……
a.
Consent
b.
Self Defense
c.
Defense of others
B.
Negligent Torts - the breach of a
duty to care
1.
Examples Include
a.
Negligent Hiring
b.
Negligent Retention
c.
Negligent Supervision
d.
Negligent Entrustment - giving your
keys to a drunk driver
e.
Inadequate Security
2.
Elements of a Negligent Tort
a.
Existence of a duty to care
b.
Breach of the duty
c.
The breach caused damage
d.
It was forseeable that the breach
would result in damage
3.
Affirmative Defenses to Negligent
Torts- "That’s how it happened, but I'm not liable because……."
a.
Comparative Negligence - the other
person was negligent as well
b.
Assumption of the Risk
c.
Statute of Limitations
C.
Satisfying a Judgment
1.
Seize perpetrator's income from...
a.
Wages
b.
Benefits
c.
Dispersal from trust funds,
royalties, rents
d.
Tax refunds and government
entitlements
e.
Windfalls - inheritance, civil
judgments, even lotteries
2. Attach
other holdings, such as:
a. Cars,
Boats, Jewelry, and other personal possessions
b.
Real Estate
c. Business
Interests
d.
Bank Accounts
e. Financial
Holdings - stocks and bonds
f. All
other debts owed offender
3. Insurance
Policies
a.
Homeowner's Insurance
b.
Automobile Insurance
c.
Personal Liability Insurance
d.
Business Insurance
e.
Professional Malpractice Insurance
