"LIFTING THE VEIL OF SILENCE"
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LEGAL OPTIONS FOR THE VICTIMS OF SEXUAL ASSAULT
by Avita Samaroo and Mark Nejame
It has been estimated over 40% of women in Florida and over 20% of men have been victimized by sexual violence other than rape.1 These statistics are astonishing to say the least. Historically, victims of sexual violence were silenced because of the lack of understanding surrounding these issues and the stigma associated with their victimization. Our culture did not support the open discourse that we see today. Victims had to rely primarily on the discretion of prosecutors and the criminal justice system for retribution. Moreover, even after a prosecution and conviction, a victim’s compensation can be extremely limited in the criminal forum. However, in the wake of the numerous sexual assault scandals that we hear about daily and the #metoo movement, victims have been more willing to pursue their assailants and other responsible parties in civil actions. The veil of silence has been lifted and now is the time, if any, to understand the options that may be available to you if you have been a victim of sexual assault.
Criminal prosecution plays an integral role in the context of preventing, discouraging and punishing assailants but victims of sexual assault should also be aware that there are other legal forums available to them. Among the limited landscape of options, is the option of pursuing a personal injury claim. Civil suits can always be brought directly against the assailant on intentional tort theories such as assault, battery, intentional infliction of emotional distress and false imprisonment. In assessing the viability of such a suit, one should always consider their goals, whether it be justice, closure, financial compensation or something else along with the likelihood of obtaining a collectable judgment. It would not be wise to subject yourself to the stresses of this type of claim without a full understanding of your goals and the possibility of actual financial recovery. The legal analysis does not stop with the assailant. You should also consider whether another person or company should be held responsible for your injury. In analyzing the situation, you must ask if someone else was in a position to prevent the assault from occurring in the first place. If that answer is yes, it may make legal sense to pursue a claim against third parties such as an employer, landlord, school, or hospital for not preventing the assault. These causes of action are often based on theories of negligence and can include general negligence, negligent failure to protect, negligent hiring and retention, negligent security and negligent infliction of emotional distress. Given these companies’ ability to prevent the assault and the higher likelihood of actually being able to collect on a judgment, they may be viable targets for legal action.
While justice can be found in the criminal forum, the civil forum offers victims other avenues to justice. Filing a lawsuit may seem to be extreme measure but for some, it may be the only way to protect one’s self and receive adequate compensation. If you have been a victim of sexual assault, the most important thing you can do is talk to someone, you are not alone.
1. Florida Council Against Sexual Violence: Retrieved (Jan. 10, 2018) http://www.fcasv.org/information/sexual-assault-statistics (citing National Intimate Partner and Sexual Violence survey.)
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