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Legal Options

Criminal Process

What do the police do?

The police are generally the first people called when an assault occurs. Their job is to assure that the victim is taken care of and the evidence is gathered. The victim does not have to decide whether they want to press charges at this point, but the routine procedure will be followed in case a prosecution occurs. The police will:

• Transport victim to hospital for treatment, gather evidence.
• Contact sexual assault support services, if requested.
• Procure other needed services for the victim.
• Interview the victim and any other witnesses. The initial police interview will be fairly short.
• Examine the scene of the crime and collect any available physical evidence (e.g. hair, skin, blood, semen samples, fingerprints, photographs).
• May assign a police investigator trained to handle sexual assault cases, along with a victim-witness coordinator, who will be called in as soon as possible and who will conduct follow-up investigations.
• Take steps to identify perpetrator (if unknown to the victim), and to arrest perpetrator as soon as possible.
• Testify at all hearings as to their findings.
• This process may take anywhere from a few days or weeks to months or even longer. In some cases an arrest is never made. The police may interview the victim on several occasions to obtain all the information needed. It is a good idea for the victim to contact the police even if he/she is not sure about prosecuting the case. It is better to have the evidence gathered, even if it is not used, than to lose the evidence and later try to prosecute.

What does the Commonwealth's Attorney do?

In Virginia, the prosecutor, called the Commonwealth's Attorney, represents the interests of the state in having the perpetrator brought to justice. The Commonwealth's Attorney functions like an attorney for the victim, with one crucial difference - the Commonwealth's Attorney does not act solely for the victim and may on occasion act contrary to the victim's wishes if she/he feels it is for the good of the state. The victim will have input into the actions of the Commonwealth, but cannot control the final decisions made by the prosecutor. You should be aware that the prosecutors almost never act contrary to the wishes of the victim in a sexual assault case. The Commonwealth's Attorney's role includes:

• Evaluate evidence from the police to determine if enough proof exists to find the accused guilty beyond a reasonable doubt. If the Commonwealth's Attorney does not believe the evidence supporting the case is strong enough, the charges may be dropped. Dropping the charges does not mean that the Commonwealth does not believe you, only that the evidence is too weak. In some cases the evidence is tainted by improper police procedures violating the accused's Constitutional rights. In such circumstances crucial evidence may exist, but be inadmissible at trial.
• Appear at bond hearing. The hearing is to determine if the accused will be kept in jail or freed until trial. Bond is a payment of money or security in the form of property given to the court to assure the accused will appear at trial. Commonwealth's Attorney may oppose bond or request a high bond if the crime was violent or there is reason to believe the accused will flee. Commonwealth's Attorney can request the Court to require the accused to stay away from the victim as a condition of bond. Victim usually does not appear.
• Conduct a preliminary hearing. Commonwealth presents enough incriminating evidence to the judge to justify sending the charge to the grand jury for formal indictment. Victim will testify, and be cross examined. The defense usually does not present their side, but can attack the Commonwealth's evidence and argue against referral to the grand jury.
• Supervise presentation of the case to the grand jury. A jury of local citizens reviews the evidence and determines whether or not to indict the accused. Victim usually does not testify before the grand jury.
• Negotiate any plea agreement. A plea agreement can be reached at almost any point in the case, usually initiated by the accused. Factors considered in entering a plea agreement include: strength of prosecution case, case-load, victim's wishes. Some victims prefer a plea agreement since there is no trial and no need to testify. Other victims may oppose a plea agreement because they feel the accused may not be punished appropriately.
• Conduct the trial. The Commonwealth's Attorney prepares the case for trial and presents it in court. Along with the victim-witness coordinator, he/she prepares the victim for the trial.

What does the Defense Attorney do?

As the victim and (usually) primary witness against the accused, you may view the defense attorney as an enemy, but his/her role is essential to the just resolution of the case. While he/she may take actions which unnerve or anger you, he/she is there to be sure that the system treats his/her client fairly. The Defense Attorney may be hired privately by the accused, or he/she may be court-appointed. In general, the work of the Defense Attorney will mirror that of the Prosecutor, including:

• Evaluate the evidence. Defense focuses on the weight of the evidence against the accused and the credibility of the witnesses. Accused's alibi or explanation may be critical. Most accused offer one of two defenses:
• Denial, i.e.: It wasn't me (mistaken identity); It never happened (victim is making it up).
• It was a consensual act.
• Bond Hearing. Defense Attorneys are not always retained this early in the case. If they are, they can argue for release on bond, for a low bond or no bond. Accused may determine at the hearing that he/she is eligible for a court- appointed attorney, who will represent him/her in the future. If bond is denied while he/she is without an attorney, another bond hearing, with representation, can be set; Accused can waive right to counsel, although few do.
• Preliminary Hearing. Defense Attorney's role is to listen to evidence presented by Commonwealth's Attorney and argue in favor of dismissal of the charges based on insufficient evidence. Cross-examine the victim and other prosecution witnesses. It is rare for the defense to succeed in having charges dismissed at this stage.
• Create a defense strategy. Based upon evidence, may attack police and court procedures, credibility of the accused and other witnesses. May offer an alternative version of the incident. Defense does not make up such evidence, but will work from the accused's story and locate any other evidence which supports it. Defense only has to create a reasonable doubt as to the guilt of the accused, not prove the accused innocent. May file civil defamation claim to intimidate the victim.
• Negotiate a plea agreement. Where the case against the accused appears strong, the defense attorney may propose a plea agreement. The agreement may work to minimize the penalty for the accused. No agreement can go forward without the consent of the accused, the Commonwealth's Attorney and the Court. The Court can always reject an agreement if it does not seem proper.
• Trial Defense. Conduct trial with the intent of creating doubt as to the guilt of the accused. Exploit flaws in the prosecution case and minimize the value of prosecution witnesses. In general, cannot explore the sexual history of the victim as a part of the attack on his/her credibility, but can attack victim's character, credibility in other ways.

Verdict and Sentencing

At the end of the trial the case is turned over to the judge or the jury for a decision as to the guilt or innocence of the accused.

Sentencing may be done separately in Virginia, and usually is. If the accused is found guilty he/she will have several months to prepare information to present to the court to minimize the sentence. The prosecutors will also prepare materials in efforts towards a heavier sentence. The accused's prior offenses, value to the community, family, and psychological analyses may come into play.

Appeals

A defendant may always appeal a conviction based upon errors he/she says were made by the judge, prosecution, or defense at trial. It may take a long time for the case to move through the higher courts, but, eventually, there will be a final decision. The defendant usually stays in prison while the appeals are in process.

On rare occasions an appeal may result in a new trial requiring the victim to testify again, but the appeals themselves are handled by the attorneys, based upon the trial transcript.

The prosecution almost never has the right to appeal an acquittal. Once the accused is found innocent, he cannot be retried.

The Civil Suit

Victims may hire a private attorney to file a lawsuit for damages against the perpetrator. Many attorneys take cases on a contingency basis; their fees are an agreed portion of any compensation that is collected from the perpetrator. This civil process takes place in a local civil (not criminal) court. The suit must be filed within two years of the date of the incident date or one year following the end of criminal proceedings. The purpose of the lawsuit is to financially compensate the victim for the wrong done to her or him. Often the case is settled by agreement between the parties before trial.

Victim vs. Accused

The victim may sue for physical and/or psychological injury which occurred as a result of the assault. Damages claimed are medical and other out-of-pocket expenses and future expenses, such as lost wages, counseling costs, as well as compensation for pain and suffering. Such a suit should not be considered as an easier substitute for a criminal charge. There are many difficulties involved in bringing such a suit, and it may be as stressful as a criminal trial.

Accused vs. Victim

The accused can sue the victim for slandering his/her reputation; damages are measured by loss of reputation and damage to career, business and/or standing in the community. Often an accused will bring, or threaten to bring, such a suit against the accuser as soon as an accusation is made. This is typically an attempt to use the suit preemptively to intimidate the victim into dropping the charges. If the accused is acquitted criminally, he/she may sue for the reputation damages and for malicious prosecution, including costs incurred in defending the criminal case.

In both actions

Plaintiff's attorney representation is often on contingent fee basis, (i.e. the attorney receives a percentage of the judgment, not an hourly fee). Plaintiff pays all out-of-pocket costs such as court filing fees, expert witness fees, etc. Defense attorneys are usually hired and paid on an hourly basis. A lower standard of proof is applied (preponderance of the evidence as opposed to beyond a reasonable doubt). Can be tried by a judge alone or in front of a jury. Rape shield laws do not apply. Victim's past sexual history can be used as evidence. The case can result in a verdict awarding money damages to the plaintiff or in a verdict for the defendant where no money is awarded. In the event a suit is brought, a counterclaim by the other party may occur. Civil actions can be useful as an impetus to a creative settlement of the dispute, such as mediation or counseling, in addition to obtaining monetary compensation.

Please click here for a chart detailing the path of legal proceedings in Virginia.

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