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Legal: Fighting Back

Legal: Fighting Back

This article is provided for information only and is not intended to be legal advice and should not be taken as such.

Legal: Fighting Back

In my twenty plus years of being an attorney I have had the privilege and honor of representing several men and women of all ages who have made the difficult decision to fight back against those that committed horrific acts against them. The brave clients I am speaking of are those that have been victims of criminal acts, from having family members murdered, to both children and adults who have been the victim of sexual assaults, and others that have been forever injured by physical assaults.  

The Criminal Justice System is Often Not Enough

The criminal justice system is seldom equipped to provide the level of justice many of these individuals deserve after going through unbelievable experiences we would not wish on our own worst enemies. While the criminal justice system has many amazing and dedicated people, from police officers and investigators, to prosecutors, lawyers and judges, there is only so much that can be done with limited resources, overcrowded prisons and certain antiquated laws. The best result a victim can hope for in the criminal justice system is that the perpetrator is punished with some type of confinement or other appropriate punishment that will provide a sense of justice to those who have been harmed.

Often, after the sentence is determined in the criminal case, the victim all too often feels wounded and has the sense of being a victim once again. Oftentimes, the victims feel as though the system has failed to deliver any type of justice.  

I’ve learned that the victim of a crime is left with that memory – or scars (mental and/or physical) – for the rest of their lives. A child that was molested or a person that suffered debilitating injuries in an assault, must live with those painful reminders every day for the rest of their lives. Studies have consistently shown that crime victims often suffer consequences in future relationships with others, have higher divorce rates, and higher rates of drug and alcohol abuse. These consequences typically last much longer than any punishment that was handed down to the criminal who committed the horrible act.  

However, there is another avenue where crime victims can fight back, and at least feel as though they have some control over the justice they seek (as opposed to the criminal justice system that provides the victim no authority). This involves the filing of a civil lawsuit against those that are responsible, including the perpetrator and potentially others that helped participate or create the environment for the criminal act to occur.  

A civil lawsuit, as opposed to a criminal case, is a lawsuit for monetary damages where the Plaintiff (the crime victim) has much more control over how the matter proceeds. This almost always includes the deposition (sworn testimony) of the criminal.  

Turning the Table

For example, I have taken a multitude of depositions of individuals that had been charged and/or convicted of sexual assault against my client(s). In the civil context, the criminal (now a Defendant) is seated at a table, put under oath with a video camera recording the deposition, forced to answer questions about their acts, and explain what specifically what occurred and why it happened. Yes, they often lie, or downplay their actions. However, almost universally I hear from my clients that this is the first time that they felt they had the upper hand over their attacker. Sometimes these cases settle outside of trial, but often they proceed to trial and a jury can award damages that it sees suitable and appropriate against the criminal.  

Does this mean a windfall of money for the victim? The answer is often no. A civil judgment for money against a Defendant may not be collectible, meaning they have no money to pay.  However, a judgment is public record (as is the lawsuit), and a judgment can follow the criminal into their future, becoming a fixture on their credit report and potentially affecting their ability to get jobs and acquire credit throughout their life. Even if a judgment is not collectible now, it may be many years down the line. What it creates for the criminal is something that the victim now holds over them, a shadow much like the memories of the events that will always follow the victim.  

Other Responsible Parties

Another area where the civil suit empowers the victim is to seek out other potentially responsible parties for the criminal acts occurring. The criminal justice system often punishes only the person who actually committed the act. What about those that created the environment for the unlawful acts to occur?  

An example of a potential additional party would be if a young woman/man stops at a retail store in the dark, and harm is inflicted upon him/her. What if this retailer had actual prior knowledge of such events (such as a string of assaults and robberies in this parking lot over the past several months and/or attempted sexual assaults on the retailer’s property)? Then the retailer, armed with this knowledge, should take appropriate measures such as adding additional security, installing security cameras, and warning customers about safety protocols. The retailer has a duty to ensure that its customers are warned of dangerous conditions that it knows exist. No amount of criminal justice or money, for that matter, can undo the harm that is inflicted to the young person in this example. The retailer, however, can be held accountable in the way of monetary damages that can at least help the victim begin to rebuild his/her life as well as obtain counseling and additional help that may be needed for the victim in the future.  

The list of who could potentially be liable civilly for the criminal acts of others is almost endless, but the most common are schools, retailers, bars, clubs and churches or church organizations.  

In closing, the choice to file a lawsuit of any kind should not be taken lightly, and there is no guarantee that any case will be successful in the end. However, when the victim of a crime is looking for a way to fight back that gives them more power and control than the criminal justice system, a civil lawsuit is one such mechanism that can potentially empower them to seek some of their own justice.  

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