CIVIL LEGAL NEEDS OF THE SEXUAL ASSAULT SURVIVIOR

Presented by: Ebony Tucker, Florida Council Against Sexual Violence Prepared with assistance from Brittany Peters, Refuge House Christina DelMarco, Legal Services of North Florida This project was supported by Grant No.2006-WL-AX-0012 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication are those of the author and do not necessarily reflect the views of the Department of Justice, Office of Violence Against Women.

Learning Objectives

► Types of Civil Relief ► Victim Privacy Rights ► Education/University System ► Unauthorized Practice of Law

Types of Civil Relief

► Protection orders/Injunctions ► Torts/Lawsuits ► Victim Compensation ► Restitution

Protection Orders

► § 93-21-7, Miss. Code states:  (1) Any person may seek a domestic abuse protection order for himself by filing a petition alleging abuse by the respondent. Any parent, adult household member, or next friend of the abused person may seek a domestic abuse protection order on behalf of any minor children or any person alleged to be incompetent by filing a petition with the court alleging abuse by the respondent.

Protection Orders

► §93-21-3 Miss. Code describes ‘abuse’ as:  Violence between spouses, former spouses, persons living as spouses or who formerly lived as spouses, persons having a child or children in common, other individuals related by consanguinity or affinity who reside together or who formerly resided together or between individuals who have a current or former dating relationship

Protection Orders

 Issued when the victim files petition  There is no cost to the victim unless it is determined that his/her claim of abuse is false  Order is valid for 10 days during which time a hearing will be held to determine validity of petition

Protection Orders

   Hearing may be held without respondent if he/she was given proper notice but does not show up to hearing Abuse must be proven by preponderance of evidence If judge does not reach a decision, he/she may continue the temporary order and hold another hearing ► Usually within 30 – 90 days

Protection Orders

► Important facts:  Sexual violence is considered abuse but only in the context of a domestic relationship; does not apply to non-intimate partner sexual assaults  Stalking, cyberstalking and the threat of violence are also forms of abuse  Given priority over most cases to be handled quickly  Full faith and credit is given to foreign orders

Preparing Client for Court

 Practice reviewing the facts  Use descriptive words  Practice responsiveness v. unresponsiveness  Desensitizing the individual to the courtroom  Order of case  Prepare for cross-examination  Gather all documentation, reports, photographs, voicemails, e mails, etc.

Torts/Civil Lawsuits

► Torts – civil wrongs for which there is a legal remedy to the harm caused ► If a tort has been committed, a civil suit may be filed ► Civil wrongs are different from crimes because a crime is against the state and a civil wrong is against the individual

Torts/Civil Suits cont.

► Why sexual assault victims file civil suits?

 Easier to find fault than in civil court, i.e. lower evidence standard  Victims are more in control of process  Perpetrator can be forced to testify  Perpetrator can be forced to pay back actual damages and pain and suffering  Statute of limitations may have run for criminal case but civil suit is still viable.

Torts/Civil Suits cont.

► Suits may occur after a criminal trial has happened or instead of a criminal trial ► Any victim can file a civil suit; no evidentiary standard is necessary for filing ► Caveats:   More evidence about the victim is admissible You will need to hire an attorney

Crime Victim Compensation Program

► Provides financial assistance and referrals to victims of crime.

 benefits are only for lost wages and expenses that are directly related to the crime ► Operated by the Mississippi Office of the Attorney General ►         Eligible Expenses?

Medical up to $15,000 Transportation costs Counseling Funeral expenses Lost wages Lost dependent or child support Relocation and temporary housing Crime scene clean up and repairs for damaged windows and locks for crimes that occurred at the victim’s residence

Victim Compensation Cont.

► ► ► ► Those Who Qualify : ► ► A victim of a violent crime who has suffered physical or extreme psychological trauma; A relative of a deceased victim who must pay funeral expenses; A person who witnessed a violent crime; A MS resident who was victimized by a crime in a foreign country with no victim compensation program; Anyone authorized to act on behalf of the victim; or Dependents of the deceased victim Those Who Do Not Qualify: ► ► ► ► Claimant who engaged in illegal conduct or aided the offender A claimant with two previous felony convictions A claimant convicted of any felony after he or she is a crime victim Anyone incarcerated when the crime occurred.

Victim Compensation cont.

Other Important Program Restrictions ► To qualify for this program, you must have reported the incident to law enforcement within 72 hours of its occurrence or show good cause for not doing so. ► Application must be received within 36 months after the date of the crime  Child sexual abuse is 36 months after date of first report ► Victims must apply and qualify for this program in order to have their expenses or lost wages reimbursed. ► All other benefits (Medicare, Workers’ Comp, etc. must be paid out first) ► Claimant must cooperate with law enforcement investigation and prosecution

Restitution

► §47-7-47, Mississippi Code  Restitution – money or goods ordered paid to an injured party to restore his or her losses  Gives judges authority to order convicted offenders on probation to pay restitution  Debt can be paid to victim or society through work that is beneficial to the community

Restitution vs. Victim Compensation

► Major differences:   Restitution is to put you financially in the same or substantially similar situation as before the crime Victim compensation is to cover expenses incident to the crime  Victims receive money from victim compensation program  Victims may not receive the money but money may go to community

Victim Confidentiality

► No MS state law establishing confidentiality for victims ► §13-1-21 Miss. Code – doctor, nurse, pharmacist - patient privilege – can protect statements made by victim for purpose of medical diagnosis and/or treatment

Sexual Assault and the University Disciplinary System

► Complaint process ► Hearing requirement if allegation meets evidentiary standard  Basic structure of hearing

University System Cont.

► Sometimes victim can submit questions to the hearing officer to ask during hearing ► Victims may have advisors at hearing but not university employees is there is a conflict ► Victim may be notified of hearing outcome within a week or two of hearing

University System cont.

► Hearing/discipline is unrelated to criminal/civil system court system  Types of discipline for student offenders ► No contact orders may be issued by the university for academic settings, i.e. classes and exams

University System cont.

► Clery Act   20 U.S.C. § 1092(f) Requires all colleges and universities that receive federal funding to keep and disclose information about crimes that occur on and near their campuses ► FIRE (Foundation for Individual Rights in Education)

Unauthorized Practice of Law

► Unauthorized Practice of Law (UPL)  §97-23-43 and §73-53-1, Mississippi Code ► 97-23-43 – criminal prosecution ► 73-53-1 – Mississippi bar injunctions  Rule 5.5 Mississippi Code of Ethics – applies to lawyers who assist non-lawyers with improper practice

UPL cont.

► Ways to avoid a UPL  Give legal information, not legal advice ► Legal definitions and explanation of process  Avoid giving opinions that direct the client’s ultimate decision  Be cautious in the drafting of legal documents

Resources

► Florida Council Against Sexual Violence  (850)297-2000 ► FIRE  www.thefire.org

► North Mississippi Rural Legal Services  (662)234-8731 (Administrative Office – Oxford) ► Mississippi Attorney General’s Office Crime Victim Compensation Division  1-800-829-6766 ► U.S. Department of Justice  202-514-2000 or [email protected]