Sexual Assault/Abuse

The criminal justice system aims to punish offenders, but is not designed to address the harms sustained by the survivors. During long, complex criminal prosecutions, the survivor can wind up feeling abandoned, with little say in the outcome and settlement of the case. And although some social systems are in place to help victims cope with the trauma (e.g., counseling centers), rarely do these go far enough towards redressing the injuries suffered.

Through civil court, survivors can exact justice for themselves, suing the offender and other third parties responsible for the damages and losses suffered. Here the survivor is in the driver’s seat.

Bringing a civil case is a huge decision. It’s not right for everybody. And it’s important to us that survivors know all the pros and cons of a decision this big. The process itself can be long, burdensome, frustrating, and sometimes public. Whether the would-be defendant is judgment-proof is also a determining factor in helping the survivor decide whether it makes sense to bring a case. Despite the downside, it can also be empowering to demand that assailants pay for what they have done and for survivors to have their “day in court.”

Sometimes it’s not just the offender who should be held liable for a sexual assault. There may be third parties that were negligent. Perhaps they enabled the offender, turned a blind eye to a situation, created a hazardous environment, or procured drugs that led to a sexual assault.

Examples of third parties that could be held liable include employers, schools, administrative agencies, municipalities, religious institutions, hospitals, the offender’s parents, hospitals, landlords, fraternities, and hotels.

As a victim or witness to a crime, you have the right to be treated fairly and with dignity. You have the right to have your questions answered and in some cases, to address the court about what happened to you. In New York State, Article 22 of the Executive Law established the Crime Victims Board which oversees the compensation and medical treatment of crime victims. Article 23 of the Executive Law sets fair treatment standards for crime victims. That requires that crime victims be made aware of social services they may receive and the status of their case.

By law, all schools that collect federal funding must have a protocol in place to address instances of dating violence, bullying, sexual misconduct, and more. Even if the original attack did not happen at school, if the offender and victim continue to attend the same school, it very much becomes a school issue that should be reported so that the school can participate in making a safe and harassment-free environment for the survivor.

We represent victims in school disciplinary proceedings around the country. Our cases involve colleges, high schools, and middle/junior high schools.

Title IX makes it a federal civil right to have an educational environment free from discrimination based on sex. Gender discrimination, sexual harassment, and sexual violence all constitute discrimination based on sex. These laws apply to schools that receive federal funds from the Department of Education. It applies to students while they’re on campus as well as those engaged in off-campus educational activities, extracurriculars, and sports.

A single incident of sexual assault is sufficient to create a hostile environment and hence a Title IX violation.

Anybody can report sex discrimination at school – the student, parent, or a third party. Schools must respond separately from law enforcement and must conduct a prompt, thorough, and impartial investigation. A Title IX violation may have occurred if a school fails to accept or investigate a complaint, lacks policies and procedures to accept a complaint, fails to comply with those policies and procedures, or retaliates against somebody who reported an incident.

Title IX complaints must be filed with the US Department of Education Office of Civil Rights (OCR) within 180 days from the incident or within 60 days from the end of a school disciplinary/grievance proceeding. They will make an exception in certain instances.

Possible outcomes for OCR complaints include: 1) No action. (A complaint was filed and no investigation is opened.) 2) Early complaint resolution. 3) OCR opens a complaint and investigation begins. 4) Proactive full compliance review.

During OCR complaint investigations, OCR conducts a series of interviews and reviews documents to determine whether a violation occurred.  The school agrees to the violation and to take corrective measures. A report is issued showing violations and mandating corrective behavior.

There is no financial benefit to victims if they file an OCR Title IX complaint. However, if the victim intends to sue the school, courts may look favorably upon there having been an OCR complaint filed first. Further, the results from the investigation may be very useful in a lawsuit if they support the survivor’s allegations. On the other hand, if OCR’s decision is not favorable to the survivor, that outcome will undoubtedly be used as proof in the school’s defense if the survivor sues the school.

Regardless of whether a victim files a complaint with OCR, the victim can file a lawsuit. Filing a complaint with the OCR focuses on that particular school’s compliance and correcting the problem for the future. Lawsuits, on the other hand, are more “victim-centric.” A lawsuit can provide immediate relief, such as an injunction, and can financially compensate the victim for the harm experienced. It can also create a precedent that impacts other schools.

Victims of child sexual abuse have a right to seek damages for their emotional and/or physical suffering. In New York, the statute of limitations extends for underage victims. Although victims can sue the offender, there may be other third parties that share the legal responsibility for making the victim whole. These other parties may include schools, landlords, religious organizations, hospitals, detention centers, directors of extracurricular activities, foster care agencies, parents, and relatives.

In 2014, through the bold work of several rape survivors, cities around the country were exposed for failing to test rape kits in a timely manner. The municipalities possessed sufficient information to timely identify several specific rapists, thereby preventing subsequent victims from assault. In some cases, rape kits had collected dust on warehouse shelves since the 1980s. Depending on the circumstances, the municipality may be held liable for failing to test the kits. Other civil lawsuits may apply to victims who were mistreated by hospitals and/or law enforcers during the reporting of their sexual assault and administering of the rape kit.