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Dear Reader:
I was asked by Joyce Boaz, the director of Gift
From Within, to write an article about legal
issues that would be helpful to survivors of
sexual assault and their loved ones. Our goal
is to provide useful information to allow you
to consider all of your options and select what
you, or your loved one, needs in order to fully
recover from the trauma you've experienced.
Sexual violence turns the world upside down
for survivors and their loved ones. Unfamiliar
feelings, and re-experiencing the trauma of
assault and betrayal are often the new realities
in this strange new landscape. The legal system,
with its ancient language and formal traditions
may seem like an unlikely place to get help,
but there are some immediate needs which are
most effectively met by using the law as a tool.
(Note: Current active and reserve duty service
members who would like to explore these options
will need to seek legal advice off-base
if they are pursuing a restricted reporting
option with a sexual assault, or if they do
not wish to report the assault.)
Central among these post-assault needs are
the restoration of hope and the preservation
of key areas of the survivors' lives, such as
work, housing, school, income, and education.
While survivors' post-assault needs are varied,
many are tied to psychological responses to
trauma. One common experience is the inability
to feel safe enough to leave home to go to work,
school, or medical appointments. As one survivor
put it, "It's just not worth it. When I
go out, I'm sure I see him everywhere."
Prompt, trauma-informed psychological support
provides the best help for healing these difficult
times in a survivor's life, but a legal intervention
can assist in creating the safety that is needed
to make healing possible. Protective Orders
are available from special courts that hear
only this type of case in brief hearings. These
orders prevent the offender from being within
a designated distance of the survivor, and may
have other specialized conditions such as requiring
the offender to vacate an apartment rented jointly
with the survivor. A client who was raped by
her roommate was able to have him removed from
their joint lease by obtaining a protection
order with this provision.
Another alternative for creating a measure
of safety is a civil injunction against an offender,
which also prevents him or her from approaching
the survivor, or the survivor's workplace, or
other sites frequented by the survivor and noted
in the order. Another survivor who suffered
through repeated threatening phone calls from
her assailant, a former work colleague, was
able to get relief by obtaining an injunction
against him that prohibited any contact with
her.
Other "stay away" orders are available
from public housing authorities for their facilities,
and for schools and universities. College students
are at particular risk for sexual assault, and
the insular nature of the college community
can result in constant interactions with the
assailant in classes, social events, and in
housing facilities. One institutional client,
a small western college, makes it possible for
reporting students to seek a "stay away"
order through the campus professional who was
also assigned to provide psychological support
and system information to survivors. These agency
orders are governed by the issuing agency's
policies, which vary greatly from jurisdiction
to jurisdiction.
Many survivors also struggle to maintain their
day-to-day routines due to the intrusiveness
of the psychological aftermath from the assault.
The inability to concentrate, experiences of
sudden inexplicable terror, and emotional numbness
are common feelings after a sexual assault,
and are all associated with a recognized condition
which the Americans with Disabilities Act addresses.
Reasonable accommodations may be sought under
the A.D.A. to enable the survivor to continue
to work or attend school. For example, a client
who couldn't tolerate going to her job was able
to negotiate a temporary arrangement for working
from home. Another client was able to change
her university class schedule so that she could
attend a different section of a lab course so
that she was not in a small class with her assailant.
Like in the cases of these two survivors, brief
legal advice can assist a survivor to frame
their own request for a change in work or school
such as a schedule change or a shift in responsibilities,
all within the context of the legal rights of
the survivor and the legal responsibilities
of the employer or school. Sometimes when survivors
can't go to work, they and their families turn
to strategies that are helpful in the short-term,
but damaging in the longer-term, such as relying
upon credit or high-interest paycheck loans
to pay for basic expenses. Financial needs as
a result of being the victim of a crime may
be addressed through the criminal justice system
and the civil justice system. Access to the
criminal justice system begins with the filing
of a police report about a crime. All U.S. states
have victim reparations programs to pay some
of the direct costs of crimes that are reported
to law enforcement. In addition, if an offender
is convicted, restitution may be awarded as
part of sentencing. The survivor doesn't need
to hire an attorney to get restitution or victim
reparations, although close communication with
the prosecutor is an absolute necessity to ensure
that these options are secured on the survivor's
behalf.
In addition to criminal justice options, a
survivor may also consider the possibility of
seeking damages through a civil lawsuit. Potential
targets of this type of suit include the offender,
and negligent third parties who, through action
or inaction, made the assault more likely to
occur. Examples of negligence include inadequate
screening and supervision of employees, inadequate
security at an apartment complex or public area
such as a shopping mall or parking lot. Legal
advice for this type of lawsuit is often provided
"on contingency," meaning that the
law firm's payment is contingent on the survivor's
success in the lawsuit, rather than being an
out-of-pocket expense for the survivor. An initial
assessment of the strength of a potential claim
is usually provided without charge by law firms
who handle these cases.
Beyond all of these strategies for seeking
out funds to pay the cost of the crime(s), legal
advice is beneficial to assist a survivor to
negotiate the most advantageous settlement with
creditors and to enforce the debtor's rights
in garnishment and lien actions. Legal Aid programs
across the country provide this type of representation
to low-income members of the community and many
local bar associations offer instruction on
how to navigate this type of representation
as a self-represented party.
Many survivors hunger for justice after experiencing
sexual assault. An expectation of a particular
legal outcome can lead to a demoralizing second
trauma in the justice system. However, if the
goal is to confront the harmful behavior of
the offender, the legal system is our society's
chosen vehicle for that confrontation. The survivor
may elect to enter the criminal justice system
by filing a formal police report. This is a
decision that should not be undertaken lightly.
Although many remedies are only available if
a police report is filed (e.g. restitution and
reparations mentioned above, immigration support
through special visas/self-petitions and deportation
defenses), the entire process is defined and
driven by the criminal justice system's own
deadlines and goals, not those of the survivor.
The military justice system is often burdened
with additional obstacles, such as the frequent
use of inexperienced lawyers as prosecutors
in sex crimes cases. David Lisak, a forensic
psychologist and noted expert both on offender
behavior and on the impact of psychological
trauma, reports that this system can unfairly
bias the outcome of military trials by pitting
an inexperienced lawyer against an experienced
one in the very cases that the public most needs
education about. "Sexual crimes prosecutions
are complex cases, in part because of the many
myths and the misinformation that pervades this
whole domain. These myths can prejudice the
outcome against neutral deliberations of the
case facts in individual courts martial cases."
However, with all of its flaws, the criminal
justice system is the only way to publicly identify
criminal behavior and to seek the sanction of
imprisonment of the offender.
Alternatively, the civil justice system seeks
to evaluate "harm," to place a dollar
value on it and, in some circumstances, to create
a plan to change negligent behavior by third
parties. The standard of proof in the civil
system is also lower and the goals are those
of the parties, not the goals of some larger
entity. Participation in either of these systems
is not expensive for the survivor as the state
pays for the prosecution of the offender in
the criminal justice system and civil representation
is typically provided on contingency.
All of the legal issues mentioned in this article:
safety, maintaining work and school opportunities,
protecting financial integrity, and seeking
justice, are issues that can easily be overlooked
in the path towards healing from an assault-and
yet attending to them is fundamental for insulating
the survivor and the survivor's loved ones from
the cascading impact of trauma and for supporting
the core healing activity of rebuilding hope.
These resources can assist you in providing
information and hope for the survivor in your
life:
- For information about low-fee or self-help
legal services in your area contact your local
bar association. For contact information see:
http://www.americanbar.org/groups/bar_services/resources/state_local_bar_associations.html
- To reach local rape crisis centers to learn
what services they offer call:
Rape Abuse Incest and National Network Hotline
at 1-800-656- HOPE or access online at:
http://apps.rainn.org/ohl-bridge/
- If you are a military member and need services
contact:
Dept. of Defense Sexual Assault Prevention
and Response Office at:
http://www.SafeHelpline.org
- If you are a college student and need help
contact:
Security on Campus at soc@securityoncampus.org
or contact your local rape crisis center through
the RAINN hotline listed above. This page has
an icon that links to a map that lists campuses
that have a federal grant to provide best practices
prevention and response to sexual and domestic
violence:
http://calcasa.org/category/campus/
M. Claire Harwell, JD, is a national trainer
for police, prosecutors, medical providers,
civil attorneys, judges, and counselors. She
developed a sexual assault victim services training
curriculum and a volunteer advocate training
curriculum for use in the United States Air
Force worldwide. She has trained attorneys across
the nation under a grant from the Department
of Justice to the Victim's Rights Law Center
in Boston, where she served as the national
trainer for the technical assistance provider
to attorneys representing victims of sexual
assault under the Civil Legal Assistance to
Victims Grant.
She was formerly the division director for
the New Mexico Attorney General's Violence Against
Women Office. While practicing in New Mexico,
she prosecuted a variety of high profile violent
offenses and conducted extensive training for
law enforcement, medical providers, civil attorneys,
counselors, and prosecutors, on a variety of
topics. Ms. Harwell received her bachelor of
arts degree from the University of North Carolina-Chapel
Hill and her Juris Doctorate from the University
of New Mexico School of Law. She was a state-certified
law enforcement officer in the state of North
Carolina. She is currently working as the Project
Director of the Community Justice for Survivors
of Sexual Violence in New Mexico.
mclaireharwell@gmail.com or claireharwell@aol.com
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