What Survivors of Sexual Assault Should Know:Civil vs. Criminal Case

Survivors of sexual assault have the legal right to seek justice for the harm they’ve suffered. Generally, they can report to law enforcement or file a civil lawsuit to pursue compensation for their losses from those responsible for their harm.

Key Takeaways

Many individuals do not have a full understanding of the differences between civil and criminal court proceedings against an alleged offender for sexual abuse, harassment, or assault and the various statute of limitations associated with different legal proceedings
A criminal case is brought by the state prosecutor and a survivor of harm has the right to file a police report but their involvement is highly limited in the process and can not press charges against someone themselves
A civil case is a legal proceeding between two (or more) parties seeking monetary damages for harm that happened and is often the best option if an institution or employer enabled the abuse or harm

The legal system can be confusing for many people. If you have no experience in the legal field, you may not fully understand the difference between a civil vs. criminal case. However, understanding the differences between civil and criminal cases is critical for survivors of sexual assault, abuse, and harassment when seeking justice, healing, and future harm prevention.

If you were sexually assaulted, you may have rights and options to claim your voice and empower yourself through legal action depending on a variety of factors. Knowing how civil and criminal cases affect you and the consequences they can have on the offender can help you feel more informed and confident as you navigate the process. Here is what you need to know about criminal vs. civil cases for sexual assault.

Last Date Modified

April 20, 2024

Table of Contents

Criminal Case vs. Civil Case: The Main Differences
What Happens in Criminal Court?
What Happens in Civil Court?
What Are the Steps in a Civil Lawsuit?
Examples of Criminal and Civil Cases
Should I Pursue a Criminal Case?
Should I Pursue a Civil Case?
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Content Reviewed By:

Kathryn Kosmides
Survivor Advocate | Helping Survivors

Criminal Case vs. Civil Case: The Main Differences

The main difference between a criminal and a civil case is that a criminal case is an offense against the state. A civil case is a dispute between private parties over their civil duties owed to each other and whether or not those were violated.

Criminal Cases: The State vs. the Offender

Because a crime is an offense against the government, criminal cases are prosecuted by the state or federal government. A prosecutor represents the people and government of the state in cases against an offender.

While the sexual assault survivor may file a police report and serve as a witness for the state, the survivor ultimately does not have control over whether the state decides to file charges, what charges are filed, and/or if the prosecution agrees to a plea deal.

Civil Cases: Plaintiff vs. Defendant

In contrast, a civil case is between two parties based on an offense committed against a person. Rather than the state filing charges, the individual seeking justice will file a civil claim to initiate a lawsuit. The sexual assault survivor is directly involved in the case and can decide whether to accept a settlement offer or pursue the case in court.

The Defendant is the alleged perpetrator(s) of harm whom you are seeking damages from and may be individuals or business entities. Most often, law firms state that it most often makes sense to file a lawsuit if there is a business entity or institution that can be filed against rather than an individual — as individuals often are not wealthy and therefore it will be hard for them to pay any monetary damages or judgments even if you should win.

The Defendant has a right to file respond to the complaint and file counterclaims — and we’ll talk more about this below.

Criminal Court Consequences

Depending on the type of crime and the number of previous offenses, a criminal offense is usually punishable by monetary payment to the state and imprisonment. Felonies are more serious crimes with severe consequences, such as prison sentences. Misdemeanors are less serious crimes with lighter sentences, such as fines and local jail time. Sexual assault is typically a felony or gross misdemeanor in most states.

Civil Court Consequences

In a civil case, the defendant may be held liable for the victim’s damages. This means the outcome of a civil case can be a court-ordered payment to the victim to compensate for economic and non-economic losses caused by the sexual assault. A court may also award punitive damages to punish the defendant for egregious conduct and deter future misconduct. Jail time is not available in civil cases.

Additionally, each party may have to agree to certain parameters outside of the monetary payments such as an order of protection, the inability to discuss the settlement terms, etc…

The Burden of Proof: Criminal Court

The burden of proof for civil vs. criminal cases is also different. In criminal cases, the state must prove the defendant’s guilt beyond a reasonable doubt. This standard is very high and difficult to reach without compelling evidence. This is why many crimes are never prosecuted as the state has to believe they can get a guilty verdict prior to even pressing charges.

Oftentimes in cases of sexual abuse or assault, survivors take years to come forward and evidence is very limited. This makes prosecuting these types of cases difficult, but filing a report with law enforcement can still be helpful even if they can’t prosecute the individual for the harm that happened to you as it can create a paper trail in case others come forward.

The Burden of Proof: Civil Court

In civil cases, the burden of proof is the preponderance of evidence, meaning it is more likely true than not that the defendant was negligent or committed a wrongful act that led to the victim’s damages. Because this standard is much lower than in criminal cases, a defendant can be held accountable for their actions in a civil case but found not guilty in a criminal case.

Trials and Rights of the Defendant in Criminal Court

In criminal cases, the defendant has numerous constitutional rights, including the right to an attorney and a speedy trial by jury. If the accused person cannot afford an attorney, the state must provide a public defense attorney to represent them.

Trials and Rights of the Defendant in Civil Court

However, defendants are not entitled to the same rights in a civil case. For example, civil case defendants must hire attorneys independently or defend themselves without legal counsel by representing themselves pro se.

What Happens in Criminal Court?

Criminal proceedings begin with criminal charges against the defendant. The victim of the crime may report the crime to law enforcement which triggers an investigation based on applicable laws and available resources to investigate. After the investigation, any available evidence is submitted to the district attorney, also known as the state prosecutor, who then decides if and what charges are brought based on a variety of factors.

In a criminal case the state has the burden of proving the defendant is guilty of the crime. Typically, the state does this by presenting arguments to a jury or judge with evidence and witness testimony showing the accused violated the law beyond a reasonable doubt. A sexual assault survivor may be called as a witness to support the prosecution’s case but does not have a say in how the state chooses to proceed. The prosecution may negotiate a plea deal before a trial happens.

Most defendants opt for a jury trial, but some may choose to go before a judge. In a bench trial before a judge, the state will present the evidence to the judge, the defense will present its case, and the judge will decide to convict or acquit the defendant.

In a jury trial, after the state and defense present all evidence and arguments, the jurors must reach a unanimous verdict to convict on criminal charges. The case’s outcome is entirely up to the jury in these cases. If the jury finds the defendant guilty of sexual assault, the judge will sentence the defendant for the crime, which may include the following:

Jail or prison time
Fines paid to the state
Mandatory registration as a sex offender
In some states, restrictions on where sex offenders can live
Removal of other personal freedoms
Restitution paid to the victim

Restitution typically covers a victim’s out-of-pocket expenses from a crime, such as medical bills, therapy costs, lost wages, and property damage. However, it is very rare for a criminal defendant to pay restitution to a victim of a crime, especially if they do not have monetary funds to do so and it would be a financial burden to them.

What Happens in Civil Court?

Civil cases involve the victim and any responsible parties. The defendant may be the perpetrator. However, any party that enabled, facilitated, or contributed to the harm with their actions or failure to act may be held liable in a civil case such as an employer, religious institution, school, or business entity.

The sexual assault survivor files a lawsuit against the responsible parties to seek financial relief for damages caused by the assault. In most cases, a personal injury attorney represents the victim and presents evidence to convince the judge or jury, depending on the type of trial, that the defendant is more likely at fault than not. The Defendant will be able to answer the claim and file counterclaims should they choose to do so. Most cases tend to settle before a trial occurs, and judges often push for parties to not waste court resources.

While there are different ways to resolve civil court cases, common outcomes involve the following:

Compensatory damages:The court may order the defendant to pay for medical bills, lost income, pain and suffering, and other economic and non-economic damages the victim sustained.
Punitive damages: In some cases, the court will impose punitive damages to punish the defendant for egregious behavior and deter such misconduct in the future.
Statutory relief:Your state may have specific rules awarding victims additional amounts in certain types of civil cases.
Injunctions: For equitable claims, a judge may order an injunction to make the defendant perform an act or refrain from certain actions. This may include a restraining order.
Court costs and fees: Bringing a civil case to court is costly for many victims who must already deal with financial and emotional struggles. However, a judge may require the defendant to cover the cost of filing the action, serving papers, and attorney’s fees.

While the plaintiff in a civil case is entitled to monetary relief after winning their case, collecting the judgment can be complex. Because the defendant is personally responsible for paying a settlement or verdict, their financial situation can determine whether a plaintiff ultimately collects compensation.

Working with an experienced personal injury attorney can help you understand your legal options and what kind of outcome you can expect for your civil case.

What Are the Steps in a Civil Lawsuit?

A civil case involves several detailed steps before it ever goes to trial. In fact, most civil cases reach a resolution out of court — about 99 percent of civil cases filed in federal court are resolved before trial.

Here is the general civil lawsuit process:

1. Case Initiation

To initiate the civil case, the sexual assault survivor must file a complaint, which is a document that states the facts of the case and what they want from the court. In most tort claims, the plaintiff asks for monetary relief for damages. The defendant can answer the complaint, file counterclaims, or file a motion to dismiss.

2. Discovery

The discovery phase of a civil lawsuit is arguably the most important step in the process. It involves gathering essential evidence and information to support the case. Both parties are allowed to ask the other side questions and request documents that may be used in court, including:

Interrogatories: A list of questions that must be answered in writing under oath by the other party
Request for production: Records of relevant emails, social media posts, text messages, and other documentation
Request for admission: A formal request to either admit or deny the truth of particular statements under oath
Medical examinations: Agreeing to undergo a medical or psychological evaluation and providing the results

Depositions: Live questioning done under oath outside of the court

3. Settlement Discussions

After discovery, both sides may try to negotiate a fair settlement agreement that offers compensation to the victim without going to trial. The parties can negotiate directly with each other or work with a mediator to reach a settlement agreement. Many cases settle because this approach saves time and money for all parties involved.

4. Pre-Trial

Before going to trial, both parties can file a motion for summary judgment to ask the court to decide in their favor based on the evidence already submitted. A party typically does this when they have overwhelming, uncontroverted evidence in their favor. However, if they do not win summary judgment, both parties in the civil case must file trial briefs detailing the evidence and arguments they intend to use for trial.

5. Trial

If the civil case goes to trial, the case is argued before a judge or jury. During the trial, attorneys present evidence, call witnesses for questioning, and try to convince the judge or jury that their side is more likely right than wrong. At the end of the trial, either the judge in a bench trial or jury members in a jury trial will decide the outcome. The court enters the judgment.

6. Post-Trial

Based on the case outcome, either party may try to appeal the judgment after the trial. If the victim’s case was resolved in their favor, they can try to collect the judgment entered by the court. This overall civil court process can take years, even up to a decade, to see judgment collection and cost anywhere between thousands to millions of dollars to see through depending on the circumstances.

Examples of Alleged Sexual Abuse Related Civil and Criminal Cases

Sexual assault can result in both a criminal and civil case. Some examples include:

E. Jean Carroll v. Donald J. Trump: Author E. Jean Carrol was awarded $88.3 million in damages for sexual assault, defamation, and battery.
Harvey Weinstein sexual assault cases: While Harvey Weinstein was convicted of sexual assault and sentenced to time in prison, multiple civil lawsuits against him led to a $17 million settlement available to victims.
Dr. Robert Hadden sexual abuse cases: Former gynecologist Robert Hadden was found guilty of sexually abusing multiple patients and was sentenced to 20 years in prison. Ultimately, Columbia University paid $242 million in settlements to victims abused by Dr. Hadden for their role in enabling the sexual abuse.

Should I Pursue a Criminal Case?

Although you are a survivor of sexual assault, you cannot press charges or pursue a criminal case yourself. However, you have a right to report the abuse to law enforcement. Providing the details of the assault may give the state enough evidence to press charges and prosecute the case against the offender. The states ability to prosecute depends on a large variety of factors, including the criminal statute of limitations.

Filing a police report also means you are doing what you can to hold this person accountable and prevent future abuse to women, children, and other individuals. You may be one of many victims to come forward, strengthening the case against the offender and any enablers.

Should I Pursue a Civil Case?

Ultimately, you decide whether to take legal action with a civil case. However, each state also has a statute of limitations setting a time limit for filing your case. You must file suit by the deadline or lose your right to pursue compensation for the harm you suffered.

Depending on your goals and the potential outcomes of your case, it could be beneficial to file a civil lawsuit. You may have grounds to claim substantial compensation for your damages. There are pros and cons to filing a civil lawsuit and every survivor should have a very clear understanding of these as it can take years, be emotionally taxing, and create more trauma if they are not informed and empowered.

Civil Case Costs

It’s vital to speak with an experienced attorney about your case and what to expect. Hiring a lawyer can put a financial burden on your family, especially when monetary compensation is not a guaranteed outcome. Hourly fees for a skilled attorney can be anywhere from $200 to $500 per hour and a case could on average cost between $10,000 – $100,000 in legal fees depending on the circumstances.

However, most personal injury lawyers work on a contingency fee basis, which makes legal representation more accessible if the law firm believes they can collect a large amount of damages. These attorneys collect payment as a percentage of the settlements or verdicts secured for their clients. In other words, they only get paid if their clients recover compensation.

Only you can make the decision if you’re willing to spend money on a case. If a lawyer won’t take the case on contingency, it isn’t that the harm didn’t happen — it just might be that finding what justice means to you may not make sense within the civil justice system.

Countersuits

In addition, sexual assault offenders will fight hard to defend their reputations. They may even choose to counter-sue for defamation, leading to more legal expenses and mental turmoil as they often lie or exaggerate in these filings knowing that it may not matter if the case settles — but they still get to put the false information on the public record to attempt to ruin or distort your reputation.

Creating a Public Record

Filing a civil claim creates a public record of the incident tied to the offender’s name. Additionally, your name and information may be public, whether at filing or later on, depending on the local laws. Even if the lawsuit’s outcome is not what the survivor originally wanted, sexual abuse survivors may find some relief and empowerment in knowing a record exists.

Holding an Institution Accountable

If an organization, company, hospital, school, or religious institution enabled the offender or did not stop the abuse from happening, you may be able to hold the institution liable for damages.

Helping Survivors can guide you through these steps and connect you with supportive resources that put you on a path to healing. Contact us to learn more.

Want To Speak With A Lawyer?

Understand your legal rights and options as a survivor of sexual assault and abuse.