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Sexual Assault & A Victim’s Civil Remedy

Sexual assault is a heinous crime that affects an unthinkable number of people everyday. The issue of sexual violence in the U.S. is a widely discussed topic with heavy media coverage. Breaking stories like the Harvey Weinstein sexual assault allegations, and Bill Cosby’s recent trial and conviction have brought the issue of sexual assault to the forefront of our society. The unfortunate reality is that these stories are numerous, because there are far too many victims. According to RAINN (Rape, Abuse and Incest National Network), every 98 seconds another person becomes a victim of sexual assault. Women, men, children and the elderly alike are all subject to having been or becoming victims of sexual assault. The scope of the problem is severe, and it’s time for victims to understand their rights and know what their legal options are.

What is Sexual Assault - How is it defined by Nevada law?

The first step in understanding your rights as a victim and survivor of sexual assault is to better understand what sexual assault actually is. Yes, the media is riddled with stories evidencing sexual misconduct of different varieties, but the legal implications of these acts often become blurred. Workplace harassment, for example, is not the equivalent of sexual assault-- even if the harassment is of a sexual nature. This article details a victims legal remedies in the case of sexual assault, but you can follow this link for more information on harassment.

In the state of Nevada, sexual assault, or rape, is a punishable crime and it has a statutory definition. According to NRS 200.366,

 1.  A person is guilty of sexual assault if he or she:
(a) Subjects another person to sexual penetration, or forces another person to make a sexual penetration on himself or herself or another, or on a beast, against the will of the victim or under conditions in which the perpetrator knows or should know that the victim is mentally or physically incapable of resisting or understanding the nature of his or her conduct; or
(b) Commits a sexual penetration upon a child under the age of 14 years or causes a child under the age of 14 years to make a sexual penetration on himself or herself or another, or on a beast.

Nevada has numerous resources available to victims of sexual assault (A list of victim resources is provided below). Although it is a crime, the unfortunate reality is that not every person who commits an act of sexual assault ends up in prison.

“While we’re making progress — the number of assaults has fallen by more than half since 1993 — even today, only 6 out of every 1,000 rapists will end up in prison.” RAINN - About Sexual Assault

This is why it is crucially important for survivors of sexual assault to understand their civil remedies -- they are not limited to justice through the criminal system. A survivor of sexual assault can file a civil lawsuit to obtain the justice and compensation they deserve.

What Steps Should I Take If I Am a Victim of Sexual Assault?

The first step after a sexual assault is to ensure that you have reached a point or place of safety—your health and safety is paramount. Next, call the National Sexual Assault Hotline at 800.656.HOPE (4673)—where a trained operator can link you to the “appropriate local health facility that can care for survivors of sexual assault.” (RAINN – Steps You Can Take After Sexual Assault) Further, it is important to talk to someone who can help guide you through the process of preserving DNA evidence and ensuring your safety moving forward.

How Do I Preserve DNA Evidence From Sexual Assault?

With regard to DNA evidence, there are several ways in which the evidence can be obtained and preserved. If you choose to involve the police, often times the perpetrator can be caught through DNA evidence obtained from the crime scene or through investigation. Other times, the evidence can be obtained “from your body, clothes and other personal belongings.” (RAINN)

“You may choose to have a sexual assault forensic exam, sometimes known as a “rape kit,” to preserve possible DNA evidence and receive important medical care. You don’t have to report the crime to have an exam, but the process gives you the chance to safely store evidence should you decide to report at a later time.” (RAINN – What Is a Rape Kit?)

Who Are The Perpetrators of Sexual Assault--Who Can be Held Accountable?

Anyone who commits the act of sexual assault can be held accountable for doing so--nobody is immune from liability. Many unsuspecting victims find themselves in a place of trust, they lower their guard and believe that they are in safe hands. This typically happens in a situation where there is a 3rd party relationship, i.e. doctor/patient, massage therapist/client, attorney/client, employer/employee, agent/entertainer, and teacher/student. For example, a doctor might put a patient under anesthesia or other sedative drugs and commit the act against the patient while they are asleep or incapacitated.

Perhaps one of the most prolific sexual assault cases of our time is that of Larry Nassar, a former physician for Michigan State and the U.S. Gymnastics Olympic team. Scores of woman spoke out against Nassar after years of sexual abuse and molestation. He was a well-respected physician who took advantage of young female athletes in vulnerable positions. Complaints against Nassar went as far back as 1997, begging the question, how did this go on for so long? His abuse was clouded under the guise of “legitimate medical treatment” and many young woman were unsure and afraid of coming forward.

Therapists, employers, teachers or even law enforcement officers have been known to take advantage of their positions of control and authority. It is this pattern of control that leads victims to believe they have no recourse--which is simply not true. In fact, juries are likely to be very responsive to victims of sexual assault, regardless of who the defendant is.

Why Should I file a Civil Suit?

A civil lawsuit functions as an accountability mechanism against the rapist and provides the survivor with the opportunity to tell their story. If you have already gone through the criminal process, it does not preclude you from filing a civil claim. In fact, a criminal conviction against the perpetrator may serve to bolster your civil claim. There are several benefits to civil litigation. First, the burden of proof in a criminal trial is “beyond a reasonable doubt,” whereas the burden is lower in a civil trial and requires that the plaintiff prove their claim “by a preponderance of the evidence.” As such, a civil lawsuit provides a higher likelihood of success for holding the defendant liable.

To that end, sexual assault is classified as a tort action, or personal injury claim, and the Plaintiff (survivor) can sue their rapist for monetary compensation. Although it may not right all of the wrongs done, financial accountability can be an extremely effective way for obtaining justice. Rapists exist in all shapes forms and fashions...therefore even wealthy or well to do people can be made to pay a victim for the damages they caused. The money obtained from the Defendant goes directly to the Plaintiff.

Further, many law firms like ours would take the case on a contingency fee basis. This means that we would represent you with no upfront fees or costs--no hourly billing or retainer fees. We don’t get paid unless we obtain a successful settlement for you. If you or someone you know is a survivor of sexual assault, you can talk to any one of our licensed attorneys now.

The National Crime Victim Bar Association’s - Civil Justice for Victims of Crime in Nevada outlines some of the key points for a survivor of any crime to consider when it comes to why they should file a civil lawsuit:

  • Control of the Case: Victims have greater control in a civil suit than in a criminal case because they are a party to the civil case, cannot be excluded from the courtroom, and have final approval of settlement proposals.
  • Compensation: Civil actions can provide compensation for victims for the monetary damages they suffered, such as medical expenses or lost income. Civil actions can also compensate victims for the emotional damage they have suffered.
  • Justice and Accountability: Civil suits can hold offenders directly accountable to victims. These suits give victims their “day in court,” regardless of whether there was a criminal conviction or any prosecution at all.
  • Crime Prevention: In addition to suing perpetrators, victims can often sue other responsible parties. Civil actions provide economic incentives for crime prevention. Businesses such as hotels, apartments, and shopping centers sometimes fail to enact proper security measures because they view such expenses as unnecessary. When businesses are held accountable for safety lapses, proper security becomes cheaper than the cost of defending lawsuits. Crime victims’ civil suits have resulted in increased security protection in public places, better oversight and supervision of daycare facilities, and countless other improvements.

It’s My Word Against Theirs -- Do I Still Have a Case?

YES. It is entirely possible to pursue a sexual assault claim against a person when you are the only other witness. In fact, chances are likely that the assault took place when nobody else was aware or present. There are other ways to prove up your case. An attorney can help you sort through the facts and build the best possible case. Also, although it's not necessary, if the defendant was found guilty in a criminal trial of having committed sexual assault against you, that conviction can be used as evidence in your civil suit as well.

How Do I Obtain Compensation for What Happened To Me?

Depending on the facts and circumstances of your case, there may be several options for obtaining compensation. You might sue an individual in their own capacity, or you might be able to sue another party, like a facility or company who you believe is also responsible for the assault. If you are suing an individual in their own capacity, most insurances will have exclusionary policies that relieve them from liability under the circumstances. Therefore, you would need to recover compensation against the defendant’s personal assets.

There are a number of legal theories that make it possible to sue a party other than the individual who committed the act. Most of these theories exist under a “Negligence” cause of action. The reason being that independent, intentional acts can relieve a 3rd party or entity of liability. If however, that individual or entity is somehow negligent in their own actions (or failure to act) they can still be held liable. For example, “Vicarious Liability/Respondeat Superior” is a legal theory that functions to hold an employer liable for the actions of an employee. There is also “Negligent Hiring, Training and Supervision,” where a facility can be held liable for reasons like a security guard not doing their job properly--had they been, the assault could have been prevented.

SEXUAL ASSAULT HOTLINES AND LOCAL NEVADA RESOURCES

National

RAINN (Rape, Abuse and Incest National Network) ○ National Sexual Assault Hotline at 800.656.HOPE (4673)

Nevada Resources

● Southern Nevada (Las Vegas): Rape Crisis Center ■ 24/7 Hotline: (702) 366-1640

● Northern Nevada (Reno): SASS - Crisis Call Center ■ SASS Line: (775) 221-7600 ■ 24/7/365 Crisis Call Center Hotline: 1 (800) 273-8255

Did you Know: Benson & Bingham was selected as a Best of Las Vegas 2016 Winner in the category lawyers by the Las Vegas Review-Journal, the city’s longest running reader’s choice awards.