Crime or Abuse Victims & Civil Justice
You can sue criminal perpetrators in Georgia
Mr. Agatston is affiliated with numerous legal organizations such as the National Crime Victim Bar Association and the American Association for Justice and its Child Sexual Abuse Litigation Group, as well as children's advocacy organizations such as the American Professional Society on the Abuse of Children and the Children's Advocacy Centers of Georgia, where he is on as Advisory Board.
The following legal rights guide describes how and why to hold sexual predators accountable in the civil justice system arena for their despicable and life-altering acts.
Holding sexual abuse criminals responsible in civil court
No one should question that both adult and child survivors of sexual abuse deserve full financial restitution for the emotional, physical and financial injuries and damages resulting from an attack; however, relatively few cases are pursued.
Traditionally, survivors have not been told that they may have legal rights, where to find out about those legal rights, what those legal rights are, and how to enforce those legal rights in civil court.
Rape and sexual abuse, both against adults and children, are criminal acts punishable by law, and the criminal prosecution of these crimes is in the hands of the district attorney. However, that is not the only legal remedy available for a survivor.
Civil lawsuits and civil claims for crime survivors are additional legal avenues that the survivor of the crime (and his or her family if the survivor is a minor) can take in the long road toward healing. The survivor controls the civil prosecution.
Why it’s important to assert your rights in court
When more victim-survivors speak out against wrongdoers, the message will be made known that there are consequences for these horrendous crimes beyond prison time. This encourages more young people who experience abuse to tell someone who can help end the abuse.
My law office sues sexual predators. My law office also sues those who enable sexual predators to perpetrate their crimes.
Even in Georgia where our state legislators have passed "tort reform" legislation that ultimately is most harmful to survivors of crimes who wish to enforce their legal rights in civil court and hold their perpetrators responsible, we are active and involved in this critically important area.
This website page is designed to help survivors or the guardians of a child survivor to understand the advantages and disadvantages of pursuing a civil claim against the perpetrator or other responsible parties.
What to expect when you sue a criminal
Initially, a word about child sexual abuse—
When it comes to child sexual abuse, there is a conspiracy of silence. Few people report child sexual abuse, instead deciding to uphold familial and institutional silence. Our society, up to now, has placed the responsibility on our children to come forward to turn in their abusers. Some studies indicate that less than 15% of all childhood rapes are reported to authorities. Other research has indicated that one in four girls and one in six boys will experience a sexual offense by the time they turn 18 years old.
This is what a lawsuit against a criminal is like:
I. General Facts of a Crime Victim's Claim -- Benefits of a Civil Action
Everyone has heard the term "lawsuit." A civil lawsuit enforces and remedies a private right. It is any suit that is not a criminal proceeding, and differs from a criminal proceeding in many, many respects. In a criminal proceeding, the State of Georgia through its prosecuting attorney initiates the action. A civil lawsuit, being a private lawsuit, means that a plaintiff survivor initiates the action. Thus, the survivor has more control over the case, and may confront the perpetrator if the survivor chooses to do so.
A civil lawsuit is the only means to obtain a financial recovery for the (1) trauma and emotional distress (2) lost income (3) medical, counseling, and psychiatric expense, and (4) other out-of-pocket expenses caused by the attack. In fact, a survivor may recover damages for future trauma, distress and financial losses, even for her entire lifetime if satisfactorily proven by the lawyer. While no amount of money can compensate for the assault and the lifelong impact, financial restitution can create opportunities to improve living environments, and to obtain assistance in childcare and schooling, and in other areas that will decrease stressors and allow the survivor to focus on personal recovery.
Additionally, the pursuit of such a civil claim sends a message to future perpetrators, landowners, employers, parents, schools, and others with a legal duty to protect the general public, that they will be forced to pay for their acts or failures to act.
II. Civil Prosecution v. Criminal Prosecution
Our dual systems of justice -- the criminal justice system and the civil justice system -- have significant distinctions. The goal of a criminal prosecution is imprisonment; civil lawsuits seek financial recovery. The district attorney controls the criminal case; the survivor controls the civil case. The D.A. must prove her case beyond a reasonable doubt; the civil lawyer must prove his case by a preponderance of the evidence, i.e., merely tilt the scales of justice in the victim/survivor's favor.
Criminal trials favor the defendant's rights; civil litigation focuses on the crime victim's rights. The district attorney cannot force the defendant to take the stand; the civil attorney may call the perpetrator at any time during his client's case. The district attorney pursues only the perpetrator; civil laws also permit prosecution of other legally responsible persons and entities. For these reasons, civil cases can be successful if pursued diligently and professionally. And, a survivor has a complete confidential relationship with her civil attorney.
III. The Pros and Cons of Filing a Lawsuit
When I meet with prospective clients regarding the critically important matter of whether to pursue a civil lawsuit for a survivor, I ask them what their personal goals are in filing a suit. It is a given that a civil suit will not undo the harm, but damage awards and the opportunity to hold the perpetrator and others who could have prevented the acts accountable make lawsuits attractive to some crime survivors. It can be an effective exercise to make a simple list on a piece of paper, marking the page with a line from top to bottom, and putting "PROS" on the left-hand side and "CONS" on the right-hand side. The page might look like this:
Of course, there are many other considerations, but I have found that this exercise does allow a survivor or her guardians to realize what such a lawsuit may be like.
IV. What a Civil Lawsuit Looks Like
Other than setting up a "pros and cons" page, there are other legal issues to discuss with your attorney regarding what a civil lawsuit will entail. A survivor is not limited to suing a perpetrator; a survivor may have a valid claim against any person, employer, institution, organization and others who was directly or indirectly involved in the crime. The following list is not exhaustive, but is illustrative of potential defendants:
As far as damages, there are a number of types that can be raised, including personal injury; medical/counseling expenses; false imprisonment; assault; battery; hate crimes; intentional and negligent infliction of emotional distress; loss of consortium; exploitation; punitive damages, and others.
The statute of limitations refers to the deadline to file the lawsuit and not the time to contact an attorney. There are a number of variables involved in determining this: in Georgia, for example, a survivor who was an adult at the time of the attack has two years from the attack to file; a minor who has been sexually assaulted must bring the civil action within five years of the age of majority. These are not exclusive numbers. There are other rules that apply that can extend these deadlines, as well as many exceptions to the rules; an attorney must be consulted prior to deciding that a deadline may have passed.
V. Choosing Your Lawyer
Representing victims of crime is a unique area of civil law, and it takes a number of qualities to perform effectively. The National Crime Victim Bar Association, of which I am a member, has a website at www.victimbar.org that describes many of the issues involved, and provides other valuable information.
The attorney must know this area of the law well, and have contacts and working relationships with professionals in the fields of counseling, police investigations, and criminal prosecutions. The attorney must have a thorough understanding of the individual and family dynamics that he or she will encounter in a case involving a crime victim. The attorney must realize that, while the criminal justice system has different goals, it is essential for the majority of the time to allow the criminal justice system work unhindered by the pursuit of the civil claim. The attorney must be familiar with the multiple statutes and court-made laws that affect this area. If the attorney is ignorant in these areas, be wary.
Good questions to ask, and which I have been asked, include questions regarding the length of the process and the likelihood of success; whether I've handled similar cases in the past and the number; how much participation the survivor has regarding the case; and the cost of the case, from start to finish, to include payment of attorney's fees.
VI. Privacy During Litigation
The days of unabashed intrusions into the lives of survivors in civil court is over, or with a knowledgeable attorney, should be. Privacy should be protected, including sexual history. Other protections of privacy during litigation include:
(1) Using existing laws to prevent intrusions;
(2) Filing lawsuits under fictitious names;
(3) Filing papers under seal and requesting in chambers meetings with the judge and not in public view;
(4) Using confidentiality settlement agreements;
(5) Refraining from filing unnecessary claims; and
(6) Always allowing the survivor and his/her family determine whether to continue with the case, or stop at any time
VII. Does the Perpetrator Have Money to Satisfy Judgment?
Another misconception is that there is no purpose in contacting an attorney if the perpetrator appears to have no money. Simply put, it is difficult to know with certainty whether the perpetrator has assets to pay a judgment without some discussion and investigation. After all, if he has a good paying job or owns a home, chances are he may have appreciable assets. Similarly, there may be insurance coverage that may pay for his actions.
Also important is the investigation of potentially liable persons and entities reveals that in many cases, there may be others with insurance and significant assets that the law requires to protect the public and who may be responsible in part for the assault. Therefore, never jump to conclusions without speaking with experienced counsel.