All survivors, not just students, need civil law options

[niyad]

All survivors, not just students, need civil law options

In 2015, let’s take the lessons we’ve learned from the movement against campus sexual assault and apply them to help survivors off campus, too. This should be the year of civil options. We can no longer avoid the reality that victims of gender-based violence need options other than criminal law. A recent strand of argument, found in the New York Times’s opinion page and the Huffington Post’s comment sections alike, is that colleges’ widespread mishandling of rape reports proves that victims should call the cops instead of their deans. Yet this faith in policing and criminal courts ignores the voices of those with intimate knowledge of the problem (and is particularly tone-deaf in the aftermath of the failed indictments in Ferguson, Missouri, and Staten Island).

The lesson from student activism for better campus responses to sexual assault is that victims desperately need options outside the criminal justice system. Many survivors say that, had the school reporting option not been available (or had their schools, as some politicians have proposed, been forced to hand over the report to the police), they wouldn’t have told anyone at all. Students tell us they largely don’t trust the cops, and they recognize that the criminal justice system can’t provide the accommodations they seek in the wake of an assault: a new dorm room away from an assailant, access to mental health services, or an extension on a paper due the week after the assault. Many want to retain control over their cases but know that in a criminal trial it is the state, not the victim, who calls the shots. And some just don’t want to deal with a two-year trial — but they do want some small justice, and they do need services.

These voices shouldn’t only inform our policy debates about campus reform, however. They also suggest our laws should provide all survivors, whether or not they’re students, with the support and solutions they need outside of the criminal justice system. But 911 remains generally the only option for victims off campus; they cannot call up a trusted dean if they are assaulted or abused.

. . . . . . .

Here’s the tragic thing: this right used to exist. The original Violence Against Women Act (VAWA) included a private right of action to allow survivors of domestic violence or sexual assault to bring suit in federal court against the perpetrator and any enabling third-party institutions. VAWA thus provided an avenue for justice even when no criminal charges had been filed. The bill passed Congress with bipartisan support and was signed into law by President Clinton in 1994.

. . . . .

http://feministing.com/2015/01/02/all-survivors-not-just-students-need-civil-law-options/

[Jim Lane]

1. The linked headline is very misleading. Civil options already exist.

The comments note some of the deficiencies in the article.

The biggest problem is one that's hard to address but that applies to many crime victims, whether or not the violence was gender-based: Usually the assailant has no significant assets, so a civil damage award won't actually get the victim any money. The victim won't even get the moral satisfaction of a court decision finding that the alleged assailant was in fact the assailant, because the lack of any prospect for getting money means that an attorney won't take the case on a contingency fee (typically, one-third of whatever is collected).

The article suggests a statutory rule that, if the case arises from gender-based violence, a successful plaintiff should recover attorney's fees. First, I don't see any logical reason for the distinction. A woman walking through a park is attacked by a man who: (a) tries to rob her, she resists, in the fight she's badly injured and he makes off with her purse; or (b) tries to rape her, she resists, he succeeds or fails but either way she suffers injury. Is there a reason that the woman in the second case should have a right to attorney's fees but the woman in the first case, also a victim of violent crime but one with no gender component, should not?

More important is that an attorney's fee rule will have zero practical impact when the issue is the defendant's lack of assets. Instead of an uncollectible judgment for the victim's damages, the end result is an uncollectible judgment for the victim's damages plus attorney's fees. Big deal. Lawyers still won't take the case on contingency.

The real hope in most of these cases is to find a deep pocket. For example, I represented a 13-year-old girl who was sexually assaulted in the elevator of her apartment building. The perpetrator was caught, prosecuted in the criminal justice system, and sent off to prison, but there was no point in suing him. We argued that he'd been able to gain access to the building only because the front door lock was broken and had been broken for weeks, and that the landlord's negligence in not making the repair was therefore one cause of the injury. The landlord, which of course did have money (this was public housing so the landlord was the New York City Housing Authority), saw considerable exposure and settled the case. We got money for our client under existing law, with no new statute necessary.

The only way to deal with the problem of the impecunious assailant would be for the government to pay the attorney's fees of gender-violence victims who want to use civil litigation to obtain moral vindication or, occasionally, some non-monetary remedy. This is proposed in a law review article linked in the Feministing piece. The author suggests hopefully that a fund for that purpose could be self-supporting, which is absurd. It would require significant government subsidy and would get back to the question: When impecunious assailants commit violent crimes against innocent victims, why should the government subsidize moral-vindication lawsuits for some victims but not others?

My main objection to the piece, though, is that, to many non-lawyer readers, it will give a totally misleading impression of the current state of the law, and might dissuade some from pursuing legal remedies that actually do exist right now.