A Survivor’s Guide to a Civil Lawsuit in Utah (Part 1)

Introduction

In the last several decades, advocates in the anti-rape movement and their allies have worked together to name violence against children and adults as an overwhelmingly unacknowledged social problem. This issue was somewhat brought into the light following the Me-Too movement (or #MeToo) that stemmed from the 2017 sexual abuse allegations against Harvey Weinstein.

However, the Me Too movement encompassed not only sexual assault, rape, and abuse, but included sexual harassment and other non-criminal actions. To make matters worse, studies have consistently shown that one of every four girls and one of every six boys will have experienced a contact sexual offense by the time they are eighteen years old.

While rape and childhood sexual abuse are criminal acts punishable by in the United States, criminal prosecution of the perpetrator is not the only legal remedy for the survivor. Survivors can file civil lawsuits in state and federal courts. This guide is only meant to assist you, a survivor or guardian of a child survivor, to understand the advantages, disadvantages, and process, of suing your perpetrator and/or other responsible parties in civil court. This should hopefully assist you in your healing journey and help you determine whether a civil lawsuit is right for you.

SHOULD YOU FILE A CIVIL SUIT?

The decision to file a civil lawsuit is one that should not be made hastily. For some, a civil suit can be time consuming, stressful, emotionally draining, and negatively affect healthy recovery. However, for others it can be an empowering experience and an important step on your path to recovery.

What is a Civil Suit?

Most of us recognize what a criminal lawsuit is, where the police and prosecution, normally representing a government entity, prosecute criminal defendants for crimes, and the punishment can be a fine, jail time, or even the death penalty. The government entity pays for the prosecution of the criminal proceedings. By contrast, civil suits differ from criminal suits, and because you are suing a person or entity as a private citizen. You control the lawsuit and can confront your perpetrator.

Additionally, the evidence standard is lower. This means the burden of what you are required to prove to win your case is different. In criminal proceedings, we hear “beyond a reasonable doubt,” but in civil proceedings (and specifically in Utah), the standard is “preponderance of the evidence.” Preponderance of the evidence means that you are required to show that evidence proves the claim more likely than not occurred. Most people are familiar with difference from the famous O.J. Simpson cases, where O.J. Simpson was acquitted in the criminal trial, where a jury did not find beyond a reasonable doubt that he was guilty but found him liable in the civil trial for the death of his wife by a preponderance of the evidence.

In a civil suit, you are also required to show that you have been harmed to recover money damages. Damages are simply the only remedy that our system has come up with to award victims. The damages in a civil suit are called compensatory damages and they are meant to compensate a victim for the harm they suffered. There are other things that a civil court cannot do, for example, a civil court cannot require that the defendant go to jail or complete therapy.

FACTORS TO CONSIDER

There are many factors to consider when deciding whether or not to file a civil suit against your perpetrator, especially because a civil suit normally requires the disclosure of private information, costs, and whether or not even the perpetrator can pay a damages award.

Loss of Privacy

The number one consideration when filing a civil suit against your perpetrator is probably the loss of privacy. Many states have rape shield laws that protect a victim in a case that may not apply in a civil case. in Utah, the victim bears the burden of proof and will normally have to disclose many intimate details about the assault, and their therapy. This information would otherwise have been kept private. Some of it may even be negative, as there are some victims who have spoken well of their perpetrators in confidence or other intimate and seemingly negative information.

Through a process called discovery, the defendant may be able to learn about you and whether you obtained medical or psychiatric assistance, they may be able to see employment and educational history. Your attorney can oppose the disclosure of this information, but many times this information is needed to prove your damages. You may also obtain information about your perpetrator. In fact, some victims believe that the perpetrator receives a lot of information during the case about them, that it can sometimes feel like they are the ones on trial instead of the perpetrator. This is especially true if the perpetrator is someone known in the community or famous or wealthy. Media can sometimes be very intrusive into the life of the victim.

The perpetrator may request that you undergo physical or mental exams to determine the existence and extent of the injuries you claim. in Utah, the defendant can only obtain these records after a hearing, and a judge finds that the evidence is material to the case. The court may, issue a reasonable order to protect the privacy of the victim or to limit the dissemination of the disclosed records, but too many victims this invasion of privacy may be too much for them to bear. Utah Rules of Civil Procedure, Rule 14(b). You must normally submit to the exam, but you may have your attorney present. The defendant must also pay for the exam as well.

Although the disclosure of private information through discovery may intimidate you, remember that you also can gather information about the defendant and this can be empowering to victims. Remember though, as you are the one making the claim as the plaintiff, there may be a greater burden on you to produce information. Generally, in civil cases, there is a greater burden on the plaintiff than on the defendant to produce information. If a judge orders you to release your records, you must do release them. Keep in mind that in a civil suit it is your burden to provide the court with evidence of any injuries the perpetrator caused.

Remember in Utah, you can ask your attorney to place a protective order on your records under URCP Rule 14(b)(6) which means that they can only be given to the named parties, and not be made available to the public. However, this does not always guarantee full protection of your records. For example, in high profile cases, or where the defendant is famous or wealthy, the media may petition to review of your records arguing that the public has a right to know. The decision to allow media access is left to the courts, but often favors the victim.

Time It Takes for a Civil Suit

One of the important things to consider is how much time it may take for a civil suit. It may take six months to years from the time you file your case until it goes to trial, depending on the county in which you file. This is partly due to an busy court system; another factor is any pending criminal proceedings against the perpetrator will have to resolve. It might be advisable to wait until after the criminal case is over before filing your civil suit, unless the statute of limitations is close, but there are other reasons.

First, a criminal conviction will likely strengthen your civil case, where a jury has found, by a higher standard, that you were harmed. Second, the criminal defense attorney representing the perpetrator will almost assuredly use a civil suit as to what motivates the criminal proceedings. Lastly, you may want to wait because your records will likely be disclosed as part of a civil suit, whereas in a criminal proceeding they would likely be protected. This is because records are less protected in a civil suit. Review these with an attorney on the proper timing of when to file the suit.

Damages

A large consideration whenever you file a civil suit, and which your attorney will also be taking into consideration are concerning damages. If you succeed in the civil suit, the compensation you receive for your injury and trauma are called “damages.” Damages are the sum of money paid by the Defendant to compensate you. While it might be rewarding to find the defendant liable for your damages, an award of any sum of money will be negated if the perpetrator does not have any assets.

Your attorney will want to assist you in your investigation of the perpetrator’s assets because it will determine whether your attorney will agree to take the case on a contingency fee basis. This is because the only way an attorney can be paid a percentage of your award of damages will depend on the ability to collect on an award of damages. Otherwise, your attorney may require you to pay your civil suit fees in advance. Although you are the one that ultimately decides whether to file a civil suit, having to pay advanced legal fees may be a large consideration on whether you can afford to file. Talk to your attorney to review with you the likelihood of collecting damages from a particular defendant.

See Part II for more information.

If you have been a victim and want to explore your legal options, please contact us for a confidential consultation.