from UVA's A Guide to Surviving Sexual Assault

as adapted by GMU Sexual Assault Services 1995

All survivors of sexual assault and rape have three legal remedies open to them. The three primary options are:

criminal prosecution,

civil suit for damages, and

third-party report.

GMU students have additional options, which are described at the end of this section.

These avenues are not mutually exclusive. First, it's important that you not feel coerced into any action. Criminal and civil suits take time and may result in no conviction or loss of a suit. Yet, many survivors who have chosen either or both options have found the process to be empowering, regardless of the outcome. Criminal and civil procedures are very different, with distinct sets of rules. They are briefly described below, as are third party reports. However, it would be helpful to discuss these options with a sexual assault counselor, victim-witness coordinator, a lawyer with experience in this area, as well as family and friends. Establish your support system in advance. These people are the same individuals you might rely on throughout the legal proceedings.

Criminal Prosecution:

In order to prosecute criminally, you must file a formal report with the police department. It is also to your advantage to have evidence collected at the emergency room. If you reported after the 72-hour "window" for effective evidence collection, you may still report, and still go forward with prosecution. You may request to speak to an officer who has experience dealing with victims of sexual assault and who can help to make the report an easier and more comfortable experience for you.

Once you have given a report to a police officer, the case is assigned to an investigator, usually a detective specially trained to handle sexual assault cases. You will also be assigned a Victim-Witness Assistant whose job it is to guide you through the legal system. You may also request the GMU Sexual Assault Services Coordinator to accompany you on all interviews, etc.

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 on your role becomes solely that of "witness". It is the state of Virginia ("the People"), as represented by the Commonwealth's Attorney, which brings charges against the perpetrator, with your testimony serving as evidence. Your testimony is essential to successful prosecution, yet 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.

Preliminary Hearing - 1 to 2 months (normally) after the Bond Hearing

The preliminary hearing, like a trial, is open to the public and lasts about an hour. It is a probable cause hearing; guilt or innocence won't be decided 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. If you choose not to appear, it is almost certain the case will be dropped. It's normal to feel anxious prior to 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 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 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 a survivor's past sexual history is not allowed, a defense attorney may ask you very personal questions, as well as asking the same questions s/he asked in the preliminary hearing. 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 your life and your family, emotionally and economically. In Virginia the jury, not the judge, determines the nature of the sentence in a criminal trial. Rape and sexual assault charges, by law, range from a minimum of five years to life. However, it's important for you to know that actual time served may be somewhat lower.

If The Assaultant 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.

Civil Suits for Damages:

Legally, sexual assault is not only a crime against the state, but also a civil dispute between survivor and assailant. You may win a civil suit in court, or you may choose to negotiate a contract, or "settlement" out of court. This means that two parties or their lawyers reach a legally binding agreement without holding a trial. In exchange for a promise not to sue or withdrawal of a pending suit, you may seek any or all of the following promises from the assailant:

That he/she keep away from you;

withdraw from the University (if the assailant is a student);

obtain counseling;

apologize to you;

pay your legal fees;

pay financial compensation to you for medical or counseling expenses

and for pain and suffering.

The first step is to consult a lawyer. Some lawyers offer a one-time, initial free consultation and will take this kind of case on a "contingency fee" basis. This means that the lawyer's fee comes only from money received from the assailant as part of the settlement.

The decision to begin a civil suit, or stop one in process, is entirely your own. You don't need to contact the police or Commonwealth's Attorney since they aren't involved.

It's possible that the assailant may be willing to negotiate a settlement upon being notified by your lawyer that you intend to sue. If no settlement is reached at this point, the lawsuit begins when your lawyer files documents at the local courthouse and notifies the assailant of the suit.

The lawsuit is now in the "discovery" phase. Each side assesses the other's position. At this time, both you and the assailant are questioned by each other's attorney. These questions are customarily asked in the privacy of a lawyer's office. You would be asked questions by the assailant's lawyer only in the presence of your lawyer, who will advise you of any questions you don't have to answer.

Why might the assailant want to settle out of court?

Many people simply don't want the adverse publicity of a public trial, particularly if they fear the effects on their future careers, standing in the community, etc.

Second, the assailant may want to avoid a potentially large money judgement against him. A money judgement is a legal document prepared at the end of a successful lawsuit, which says that the defendant (assailant) owes the plaintiff (survivor) a specific sum of money as redress for the assault. In sexual assault cases, money judgements have ranged up to several million dollars. There are many ways to enforce that judgement such as seizing property like real estate, cars, stocks, bank accounts and wages. If the debt is still not satisfied, the assailant must continue to pay until the judgement is paid in full.

Third, the assailant's lawyer will tell him that his chances of losing a lawsuit are far greater than in a criminal case. In a civil case, you and your attorney need only convince the judge or jury that your version of the facts is "more likely than not," and so your chances of winning a civil suit are greater than in a criminal trial.

For these reasons, the defendant may prefer an out-of-court settlement that offers financial terms he can afford, rather than risk the possibility of a financially devastating money judgement.

The First Steps -- and Cautions

In Virginia, the survivor has two years after the assault within which to begin the lawsuit. Nevertheless, you should contact a lawyer as soon as possible. A lawyer will probably advise you to make complete notes about the event, if you haven't already. A diary recording your emotional distress and recovery can be useful. You will also be advised to avoid any contact with the assailant, if you can, and to notify your lawyer if the assailant tries to contact you.

Most importantly, you must be aware that there is a possibility that you could be sued for slander by the assailant if you make accusations that identify the assailant to anyone except these specific persons: the police, prosecutor, your spouse, lawyer, doctor, licensed clergy member or a licensed psychologist. In this event, your lawyer would most likely ask the judge for a continuance until the conclusion of your own lawsuit against the assailant or until the criminal trial. This doesn't mean that you shouldn't speak with a rape crisis counselor, the Sexual Assault Services Coordinator, the Women's Center, or, if you are a student, with a dean or health care provider in Student Health. These are important sources of support. But conversations with these people are not protected by law. Because this kind of counter suit is an attempt to silence you through intimidation, you may want to consult with your lawyer and support system before making any quick decisions about what to do.

If you are sued for slander, you may possibly be able to settle the case by dropping your own lawsuit against the assailant. Or you may have to defend yourself in the suit by proving that your statements about the assailant are true. If the assailant wins his suit you may be forced to pay money damages to him.

Third Party Reports:

Third party reports are an easy way to let authorities know an assault has occurred, where and when, without disclosing one's own identity. Basically, you may call the police, the sexual assault services office, a women's center, and let someone know you wish to file a third party report. The person who takes this report will ask some questions about general details of the assault and then will send it to the appropriate police department. The purpose of filing this kind of report is to alert the police to any potential patterns of assaults. Such reports also help people working to stop sexual assault develop more accurate statistics on the number of assaults occurring. No arrests can be made based on information from a third party report. If you are concerned about filing a formal police report, this is a viable first step. You still may file a formal complaint afterward.

For George Mason University Students: An Additional Option

George Mason University views sexual assault as a serious, violent crime that will not be tolerated in the University community. For those who wish to seek redress within this setting, another option for the resolution of sexual assault cases is:

a hearing by a specially-selected panel of students, or

by a judicial administration.

This procedure is completely confidential. Anyone who violates that confidentiality is subject to disciplinary action under the University's Standards of Conduct. Conduct which threatens the health or safety of the survivor, or has the intent of intimidating a witness from testifying, is also subject to disciplinary action under the Standards of Conduct. If you choose this option, you still may pursue criminal or civil redress described above.

"Sexual assault" is defined under University code as:

rape, forcible sodomy or sexual penetration with an inanimate object, the

touching of an unwilling person's intimate parts (defined as genitalia,

groin, breast, or buttocks, or clothing covering them), or forcing an

unwilling person to touch another's intimate parts. To constitute an

assault, these acts must be committed either by force, threat or

intimidation, or through use of the victim's mental or physical

helplessness of which the accused was aware or should have been aware.