CIVIL LEGAL NEEDS OF THE CIVIL LEGAL NEEDS OF THE SEXUAL ASSAULT SEXUAL ASSAULT

SURVIVIORSURVIVIOR

Presented by:Presented by:

Ebony Tucker, Florida Council Against Sexual ViolenceEbony Tucker, Florida Council Against Sexual Violence

Prepared with assistance fromPrepared with assistance from

Brittany Peters, Refuge HouseBrittany Peters, Refuge HouseChristina DelMarco, Legal Services of North FloridaChristina 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 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 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. necessarily reflect the views of the Department of Justice, Office of Violence Against Women.

Learning ObjectivesLearning Objectives

►Types of Civil ReliefTypes of Civil Relief

►Victim Privacy RightsVictim Privacy Rights

►Education/University SystemEducation/University System

►Unauthorized Practice of LawUnauthorized Practice of Law

Types of Civil ReliefTypes of Civil Relief

►Protection orders/InjunctionsProtection orders/Injunctions

►Torts/LawsuitsTorts/Lawsuits

►Victim CompensationVictim Compensation

►Restitution Restitution

Protection OrdersProtection Orders

► § 93-21-7, Miss. Code states:§ 93-21-7, Miss. Code states:

(1)  Any person may seek a domestic (1)  Any person may seek a domestic abuse protection order for himself by abuse protection order for himself by filing a petition alleging abuse by the filing a petition alleging abuse by the respondent. Any parent, adult household respondent. Any parent, adult household member, or next friend of the abused member, or next friend of the abused person may seek a domestic abuse person may seek a domestic abuse protection order on behalf of any minor protection order on behalf of any minor children or any person alleged to be children or any person alleged to be incompetent by filing a petition with the incompetent by filing a petition with the court alleging abuse by the respondent. court alleging abuse by the respondent.

Protection OrdersProtection Orders

►§93-21-3 Miss. Code describes ‘abuse’ §93-21-3 Miss. Code describes ‘abuse’ as:as:

Violence between spouses, former spouses, Violence between spouses, former spouses, persons living as spouses or who formerly persons living as spouses or who formerly lived as spouses, persons having a child or lived as spouses, persons having a child or children in common, other individuals children in common, other individuals related by consanguinity or affinity who related by consanguinity or affinity who reside together or who formerly resided reside together or who formerly resided together or between individuals who have a together or between individuals who have a current or former dating relationshipcurrent or former dating relationship

Protection OrdersProtection Orders

Issued when the victim files petitionIssued when the victim files petition

There is no cost to the victim unless it is There is no cost to the victim unless it is determined that his/her claim of abuse is determined that his/her claim of abuse is false false

Order is valid for 10 days during which Order is valid for 10 days during which time a hearing will be held to determine time a hearing will be held to determine validity of petition validity of petition

Protection OrdersProtection Orders

Hearing may be held without respondent Hearing may be held without respondent if he/she was given proper notice but does if he/she was given proper notice but does not show up to hearing not show up to hearing

Abuse must be proven by preponderance Abuse must be proven by preponderance of evidence of evidence

If judge does not reach a decision, he/she If judge does not reach a decision, he/she may continue the temporary order and may continue the temporary order and hold another hearing hold another hearing

►Usually within 30 – 90 daysUsually within 30 – 90 days

Protection OrdersProtection Orders

► Important facts:Important facts:

Sexual violence is considered abuse but only in Sexual violence is considered abuse but only in the context of a domestic relationship; does not the context of a domestic relationship; does not apply to non-intimate partner sexual assaultsapply to non-intimate partner sexual assaults

Stalking, cyberstalking and the threat of violence Stalking, cyberstalking and the threat of violence are also forms of abuse are also forms of abuse

Given priority over most cases to be handled Given priority over most cases to be handled quickly quickly

Full faith and credit is given to foreign orders Full faith and credit is given to foreign orders

Preparing Client for CourtPreparing Client for Court

Practice reviewing the factsPractice reviewing the facts

Use descriptive wordsUse descriptive words

Practice responsiveness v. unresponsivenessPractice responsiveness v. unresponsiveness

Desensitizing the individual to the courtroomDesensitizing the individual to the courtroom

Order of caseOrder of case

Prepare for cross-examinationPrepare for cross-examination

Gather all documentation, reports, photographs, Gather all documentation, reports, photographs, voicemails, e-mails, etc.voicemails, e-mails, etc.

Torts/Civil LawsuitsTorts/Civil Lawsuits

►Torts – civil wrongs for which there is a Torts – civil wrongs for which there is a legal remedy to the harm causedlegal remedy to the harm caused

► If a tort has been committed, a civil suit If a tort has been committed, a civil suit may be filedmay be filed

►Civil wrongs are different from crimes Civil wrongs are different from crimes because a crime is against the state and because a crime is against the state and a civil wrong is against the individual a civil wrong is against the individual

Torts/Civil Suits cont.Torts/Civil Suits cont.

► Why sexual assault victims file civil suits?Why sexual assault victims file civil suits?

Easier to find fault than in civil court, i.e. lower Easier to find fault than in civil court, i.e. lower evidence standardevidence standard

Victims are more in control of process Victims are more in control of process

Perpetrator can be forced to testify Perpetrator can be forced to testify

Perpetrator can be forced to pay back actual Perpetrator can be forced to pay back actual damages and pain and sufferingdamages and pain and suffering

Statute of limitations may have run for criminal Statute of limitations may have run for criminal case but civil suit is still viable. case but civil suit is still viable.

Torts/Civil Suits cont.Torts/Civil Suits cont.

►Suits may occur after a criminal trial has Suits may occur after a criminal trial has happened or instead of a criminal trialhappened or instead of a criminal trial

►Any victim can file a civil suit; no Any victim can file a civil suit; no evidentiary standard is necessary for filing evidentiary standard is necessary for filing

►Caveats:Caveats: More evidence about the victim is admissibleMore evidence about the victim is admissible You will need to hire an attorney You will need to hire an attorney

Crime Victim Compensation Crime Victim Compensation ProgramProgram

► Provides financial assistance and referrals to victims of crime.Provides financial assistance and referrals to victims of crime.

benefits are only for lost wages and expenses that are directly related to benefits are only for lost wages and expenses that are directly related to the crimethe crime

► Operated by the Mississippi Office of the Attorney GeneralOperated by the Mississippi Office of the Attorney General

► Eligible Expenses?Eligible Expenses?

Medical up to $15,000Medical up to $15,000 Transportation costsTransportation costs Counseling Counseling Funeral expensesFuneral expenses Lost wagesLost wages Lost dependent or child supportLost dependent or child support Relocation and temporary housing Relocation and temporary housing Crime scene clean up and repairs for damaged windows and locks for Crime scene clean up and repairs for damaged windows and locks for

crimes that occurred at the victim’s residencecrimes that occurred at the victim’s residence

Victim Compensation Cont.Victim Compensation Cont.

Those Who QualifyThose Who Qualify: :

► A victim of a violent crime who has suffered physical or extreme psychological A victim of a violent crime who has suffered physical or extreme psychological trauma;trauma;

► A relative of a deceased victim who must pay funeral expenses;A relative of a deceased victim who must pay funeral expenses;► A person who witnessed a violent crime;A person who witnessed a violent crime;► A MS resident who was victimized by a crime in a foreign country with no A MS resident who was victimized by a crime in a foreign country with no

victim compensation program;victim compensation program;► Anyone authorized to act on behalf of the victim; orAnyone authorized to act on behalf of the victim; or► Dependents of the deceased victim Dependents of the deceased victim

Those Who Do Not Qualify:Those Who Do Not Qualify:

► Claimant who engaged in illegal conduct or aided the offender Claimant who engaged in illegal conduct or aided the offender ► A claimant with two previous felony convictions A claimant with two previous felony convictions ► A claimant convicted of any felony after he or she is a crime victimA claimant convicted of any felony after he or she is a crime victim► Anyone incarcerated when the crime occurred. Anyone incarcerated when the crime occurred.

Victim Compensation cont.Victim Compensation cont.

Other Important Program RestrictionsOther Important Program Restrictions

► To qualify for this program, you must have reported the incident to To qualify for this program, you must have reported the incident to law enforcement within 72 hours of its occurrence or show good cause law enforcement within 72 hours of its occurrence or show good cause for not doing so. for not doing so.

► Application must be received within 36 months after the date of the Application must be received within 36 months after the date of the crimecrime Child sexual abuse is 36 months after date of first reportChild sexual abuse is 36 months after date of first report

► Victims must apply and qualify for this program in order to have their Victims must apply and qualify for this program in order to have their expenses or lost wages reimbursed. expenses or lost wages reimbursed.

► All other benefits (Medicare, Workers’ Comp, etc. must be paid out All other benefits (Medicare, Workers’ Comp, etc. must be paid out first)first)

► Claimant must cooperate with law enforcement investigation and Claimant must cooperate with law enforcement investigation and prosecution prosecution

RestitutionRestitution

►§47-7-47, Mississippi Code§47-7-47, Mississippi Code

Restitution – money or goods ordered paid to Restitution – money or goods ordered paid to an injured party to restore his or her lossesan injured party to restore his or her losses

Gives judges authority to order convicted Gives judges authority to order convicted offenders on probation to pay restitutionoffenders on probation to pay restitution

Debt can be paid to victim or society through Debt can be paid to victim or society through work that is beneficial to the communitywork that is beneficial to the community

Restitution vs. Victim Restitution vs. Victim CompensationCompensation

► Major differences:Major differences:

Restitution is to put you financially in the same Restitution is to put you financially in the same or substantially similar situation as before the or substantially similar situation as before the crimecrime

Victim compensation is to cover expenses Victim compensation is to cover expenses incident to the crime incident to the crime

Victims receive money from victim compensation Victims receive money from victim compensation programprogram

Victims may not receive the money but money Victims may not receive the money but money may go to community may go to community

Victim ConfidentialityVictim Confidentiality

►No MS state law establishing No MS state law establishing confidentiality for victims confidentiality for victims

►§13-1-21 Miss. Code – §13-1-21 Miss. Code – doctor, nurse, doctor, nurse, pharmacist - patient privilege – can pharmacist - patient privilege – can protect statements made by victim for protect statements made by victim for purpose of medical diagnosis and/or purpose of medical diagnosis and/or treatmenttreatment

Sexual Assault and the Sexual Assault and the University Disciplinary SystemUniversity Disciplinary System

►Complaint processComplaint process

►Hearing requirement if allegation Hearing requirement if allegation meets evidentiary standardmeets evidentiary standard Basic structure of hearingBasic structure of hearing

University System Cont.University System Cont.

► Sometimes victim can submit questions to the Sometimes victim can submit questions to the hearing officer to ask during hearing hearing officer to ask during hearing

► Victims may have advisors at hearing but not Victims may have advisors at hearing but not university employees is there is a conflictuniversity employees is there is a conflict

► Victim may be notified of hearing outcome Victim may be notified of hearing outcome within a week or two of hearingwithin a week or two of hearing

University System cont.University System cont.

►Hearing/discipline is unrelated to Hearing/discipline is unrelated to criminal/civil system court systemcriminal/civil system court system Types of discipline for student offendersTypes of discipline for student offenders

►No contact orders may be issued by No contact orders may be issued by the university for academic settings, the university for academic settings, i.e. classes and exams i.e. classes and exams

University System cont.University System cont.

►Clery Act Clery Act 20 U.S.C. 20 U.S.C. § 1092(f)§ 1092(f) Requires all colleges and universities that Requires all colleges and universities that

receive federal funding to keep and receive federal funding to keep and disclose information about crimes that disclose information about crimes that occur on and near their campuses occur on and near their campuses

►FIRE (Foundation for Individual Rights FIRE (Foundation for Individual Rights in Education) in Education)

Unauthorized Practice of LawUnauthorized Practice of Law

►Unauthorized Practice of Law (UPL)Unauthorized Practice of Law (UPL)

§97-23-43 and §73-53-1, Mississippi Code§97-23-43 and §73-53-1, Mississippi Code►97-23-43 – criminal prosecution97-23-43 – criminal prosecution►73-53-1 – Mississippi bar injunctions 73-53-1 – Mississippi bar injunctions

Rule 5.5 Mississippi Code of Ethics – Rule 5.5 Mississippi Code of Ethics – applies to lawyers who assist non-lawyers applies to lawyers who assist non-lawyers with improper practicewith improper practice

UPL cont.UPL cont.

►Ways to avoid a UPLWays to avoid a UPL

Give legal information, not legal adviceGive legal information, not legal advice►Legal definitions and explanation of processLegal definitions and explanation of process

Avoid giving opinions that direct the client’s Avoid giving opinions that direct the client’s ultimate decisionultimate decision

Be cautious in the drafting of legal Be cautious in the drafting of legal documents documents

Resources Resources ► Florida Council Against Sexual ViolenceFlorida Council Against Sexual Violence

(850)297-2000(850)297-2000

► FIRE FIRE www.thefire.orgwww.thefire.org

► North Mississippi Rural Legal ServicesNorth Mississippi Rural Legal Services (662)234-8731 (Administrative Office – Oxford)(662)234-8731 (Administrative Office – Oxford)

► Mississippi Attorney General’s Office Crime Victim Mississippi Attorney General’s Office Crime Victim Compensation Division Compensation Division 1-800-829-67661-800-829-6766

► U.S. Department of JusticeU.S. Department of Justice 202-514-2000 or 202-514-2000 or AskDOJ@usdoj.govAskDOJ@usdoj.gov