All survivors of sexual assault and rape have legal options available to them.
The two primary options are: Criminal Prosecution and Civil Suit for Damage
These avenues may be pursued simultaneously, criminal and civil suits take time and may result in no conviction or loss of a suit. Yet, some survivors who have chosen either option or both have found the process to be empowering, regardless of the outcome. Criminal and civil procedures are very different, with distinct sets of rules. Before proceeding with either option, it would be helpful to discuss these options with a sexual assault counselor or advocate, a victim-witness coordinator, and a lawyer with experience in this area.
The criminal justice process typically proceeds through the following stages:
· Arrest or Citation
· Initial Appearance of Defendant
· Charging the Crime
· Discovery/Pretrial Motions
· Plea Bargaining or Trial
· Review and Appeals
· Probation and Parole
If the offender is arrested, they may be released on bond (released from custody while awaiting trial). If you are afraid, you should contact a counselor or victim advocate to discuss your fears and options. You have the right to tell the prosecutor if you are afraid of the defendant/assailant. The court can issue orders to the defendant to not contact you. If contact is made, bail may be revoked.
If you reported to law enforcement but criminal charges aren’t filed and you don’t agree with that decision, contact the district/county attorney directly and have the district/county attorney explain in their own words why the decision to not file charges has been made.
If criminal charges are brought against the assailant and 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 Utah, as represented by the district or county attorney, which brings charges against the perpetrator, with your testimony serving as evidence. Your testimony is essential to successful prosecution.
Your testimony (statements made, usually in court, under oath) will be very important:
· at the preliminary hearing: To help a judge determine whether the case should go to trial;
· at the trial: To help a judge or jury decide whether to convict the accused/offender;
· before sentencing: You can speak to the preparer of the Pre-sentence Investigation Report (a report about the offender that is prepared by the Office of Adult Probation and Parole to be used by the judge in determining the offender’s sentence) that will be given to the judge;
· at sentencing: Your Victim Impact Statement (a written or verbal statement by the victim at sentencing telling the judge how the crime has affected your life) will help the judge to decide a proper punishment for the offender; and
· at the parole hearing: To help the Parole Board (panel that decides whether or not to grant parole) decide whether to grant the offender’s request for early release.
The preliminary hearing is held after the bond hearing and, 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. In most cases you must be present to testify. If you choose not to appear, it’s possible that the case will be dropped. It’s normal to feel anxious before and during the hearing. It helps to prepare for this by practicing relaxation techniques and/or talking with members of your support system.
Plea Bargaining or Trial
All cases differ and not all cases go to trial. The criminal justice process can take a long time. Sometimes it is difficult to get into court and quickly resolve the case. Sometimes criminal cases are resolved without a trial through a plea bargain or plea agreement. This agreement is made between the prosecutor and offender regarding the plea of either guilty or not guilty. If a plea bargain is reached (the defendant pleads guilty to rape or a lesser charge), there is no trial, and the case will be set for sentencing. During this period you can be in contact with someone from the prosecutor’s office. The prosecutor may consult with you before settling any plea bargains or agreements.
If the case goes to trial, you will need to testify before the trial jury. The prosecutor will assist you in preparing your testimony, and a victim advocate will provide support during the court process. A trial will last approximately two to three days.
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 affected you, and your family, emotionally and economically.
A “not-guilty” verdict may be emotionally devastating and possibly very frightening. However, in addition to focusing on your own healing process, you may still be able to bring further legal action against your assailant by filing a civil suit.
Civil Suit 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 even if you lose a criminal case. 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 they keep away from you;
· Withdraw from a shared college or university (if a student);
· Obtain counseling;
· Pay your legal fees;
· Compensate you for your medical and/or counseling expenses and for pain and
The first step is to consult a lawyer. Some lawyers offer a one-time, initial free consultation and may take this kind of case for a “contingency fee”. This means that the lawyer’s fee comes only from money received from the assailant as part of any settlement.
Some assailants settle out of court because they 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. The assailant also may prefer an out-of-court settlement that offers financial terms they can afford, rather than risk the possibility of a financially
Statute of Limitations on Civil Suits
As a survivor, you may have other legal options beyond cooperating with a
criminal prosecution. To find out more of those options, you can consult an
attorney or a free legal clinic.