Q: What is rape (have I been raped)?
A: Each state law provides its own definition of rape. As such, the meaning of rape might depend on the state where the act occurs.
For instance, in California, the definition of rape is many pages long, but is generally defined as sexual intercourse where any of the following apply: (1) the victim is incapable of consenting (either through alcohol, drugs, or mental incapacity); (2) the victim is coerced through force, violence, duress, or threat of physical injury; (3) the victim is sleeping or otherwise unaware of what was happening; (4) the victim is threatened with arrest or deportation.
In Utah, the definition of rape is more simple. In Utah, a person commits rape when they have sexual intercourse with another person without the victim's consent.
Each term in the statute might have different definitions. For instance, some states define “intercourse” as the penetration of the anus or vagina by the penis. In other states, penetration by a finger or object is sufficient.

Even if a rape has not occurred based on its technical definition, the act may constitute other related crimes or claims such as attempted rape, sexual abuse, sexual harassment, assault, battery, kidnapping, intentional infliction of emotional distress, negligence, etc.

back to top

Q: What is statutory rape?
A: Most rape laws prohibit sexual intercourse without a victim’s consent. According to many states’ laws, children below a certain age cannot “consent” to intercourse. Therefore, if a person has intercourse with someone below that set age, it is considered rape because consent could not have been given. Different states set different ages below which a minor is consider incapable of giving consent. These laws are set by statute (or laws passed by state legislature) so the crime is often referred to as statutory rape.

back to top

Q: Are any sexual acts illegal if there was no intercourse?
A: Yes. Rape is not the only sexual crime. Rape is just one of many sexual crimes. Several other crimes exist, each having a unique technical definition. Sometimes, an act can constitute more than one crime; for instance, the crime of rape often includes the crimes of kidnapping, assault, battery, etc. Other times, if rape has not occurred, it is possible that other crimes have, such as kidnapping, attempted rape, sexual assault, battery, etc. Because the definition of crimes may be different from one state to another, it is important to speak with an attorney experienced with the laws of the state where the wrongful act occurred.

back to top

Q: What if I consented to some physical activity, but not intercourse?
A: A woman does not consent to intercourse just because she may have consented to other forms of intimacy, such as kissing, touching, or any other act short of intercourse. Many perpetrators are in jail and/or in sex offender databases because they wrongfully assumed that a woman who agreed to some form of intimacy was thereby consenting to intercourse.

back to top

Q: What if I was abused as a child?
A: Many states have passed special laws to give rights to victims of child sexual abuse. These laws recognize that crimes committed against children are particularly reprehensible, and that children suffer peculiar psychological injuries. In the State of Utah, for instance, the statute of limitation for the victim of child sexual abuse does not expire until the victim’s 22nd birthday, or until 4 years after the victim first discovery they were abused as a child, whichever is later.

back to top

Q: What is the difference between criminal law and civil law?
A: We have dedicated an entire webpage to this question. To view it, please
click here.

back to top

Q: Who can file a civil lawsuit?
A: Anyone can file a civil lawsuit against those who have harmed them. Even if a prosecutor declines to file criminal charges, an injured individual can decide whether to pursue civil claims. It is important to keep in mind, however, that the typical goal of a civil lawsuit is to obtain a monetary judgment against the defendant. If the defendant does not have money or other assets pay such a judgment, it may be futile for all practical purposes to file a civil lawsuit.

back to top

Q: What if criminal charges were not filed against the perpetrator?
A: Often victims of rape and sexual abuse feel demoralized because the prosecutor decides to not file criminal charges against the perpetrator. Often prosecutors decide to not file charges because they do not believe they have enough evidence to prove the crime “beyond a reasonable doubt,” which is often understood to mean a 99% certainty. For instance, in many date rape cases, the only evidence about consent is the testimony of the victim and perpetrator, one claiming consent was not given, the other claiming it was. Without additional evidence, the prosecutor may determine that no reasonable jury could have a 99% certainty of who was telling the truth, so the prosecutor may decide to not bring criminal charges.

However, the likelihood of winning a civil lawsuit is often substantially higher than obtaining a criminal conviction. This is primarily because in a civil lawsuit, the standard of proof is by “preponderance of the evidence,” which is often understood to mean anything more than a 50% certainty. In other words, in civil trial it does not matter if a jury has some doubt; instead, civil trial juries often decide which story is more likely to be true.

back to top

Q: Is there a time limit to file a civil lawsuit (i.e., what is a statute of limitation)?
A: Virtually all claims in civil law have a statute of limitation. Typically, if a claim is not filed with the Court before the statute of limitation for the claim expires, the victim will have forever lost the right to recover for that claim. For instance, if an assault occurred on March 1, 2004, and if there was a 1-year limitation period for an assault claim, the lawsuit must have been filed on or before March 1, 2005 or the right to recover for assault would be forever lost. As such, it is critical that claims be filed before the statute of limitations expires.

When a perpetrator rapes or abuses a victim, it often gives rise to several distinct claims. For instance, rape often includes other civil claims such as assault, battery, kidnapping, intentional infliction of emotional distress, etc. Separate facts must be proven to establish each of these claims, and each claim has its own limitation period. For instance, in Utah, a civil claim of kidnapping has a one year statute of limitation, whereas a civil claim of intentional infliction of emotional distress has a four year statute of limitation. If a victim waits two years after the rape to file a civil lawsuit against a perpetrator, she may have lost the right to pursue a claim of kidnapping, but may still have the right to pursue a claim for intentional infliction of emotional distress.

back to top

Q: When does the statute of limitation period expire?
A: The limitation period for most claims is set by each state’s laws. Different claims often have different limitation periods.

Typically, the limitation period begins to run from the date of the wrongful act. However, in other situations, the limitation period might only start to run from the date of the victim’s 18th birthday, or from the date a victim first discovers that a wrongful act occurred during their childhood. For instance, in Utah, the victim of child sexual abuse can bring a civil lawsuit against the perpetrator within 4 years of the victim’s 18th birthday, or within 4 years of discovering that they were abused as a child. Thus, a person abused a child can file a civil lawsuit anytime before their 22nd birthday. Or if they only discover they were abused as a child after their 18th birthday, they can file suit within 4 years of discovery.

Determining the applicable limitation period is often a difficult legal issue. Important factors include identifying exactly what happened, which claims can be brought, which state the acts occurred in, the age of victim, and maybe even who is being sued. The best way to ensure your rights are protected is to consult with an attorney experienced in th e field of law you need help with. If you claim arose in California or Utah, click here for a free and confidential evaluation of your case.

back to top

Q: Who pays attorney fees?
A: People who have been injured by criminal or negligent acts of others typically hire attorneys on a “contingency” basis. This is sometimes phrased as “no attorney fees unless you win.” Under this arrangement, the attorney typically gets a percentage of total recovery; if the client does not have a recovery, they owe no fees to the attorney. This arrangement gives the attorney a strong incentive to obtain a recovery in your case. Other than contingency, attorneys can also be hired on a “hourly” basis, meaning the attorney is paid for the time they spend working, and the attorney must be paid regardless of the outcome of the case. Payment terms are arranged on a case-by-case basis.

back to top

Q: How long would a lawsuit take?
A: There is no easy answer. The overwhelming majority of civil lawsuits are settled before trial by mutual consent of the parties; therefore, the biggest determining factor in the length of a lawsuit depends on the parties’ personalities and motivation to reach a settlement. Reaching a settlement might only take days, or it could last years, depending on the unique circumstances of each case. If there is no settlement or anticipated settlement, a trial might be scheduled anywhere from several months to years after filing of a lawsuit.

back to top

Q: How much would my case be worth?
A: Determining the value of a case is complicated and depends on numerous variables. There is no “typical” recovery for a case. If a case settles, the value is ultimately determined by the parties reaching mutually acceptable terms. If a case does not settle and proceeds to trial, the value is typically determined by a jury.

In a civil lawsuit, a prevailing plaintiff is often entitled to recover for all losses they have incurred, for pain and suffering, and at times additional amounts to punish the defendant.

Although every case is different, some attorneys have access to specialized databases showing settlements and judgments from numerous earlier cases. Some rape and sexual assault cases result in settlements or judgments in excess of a million dollars. Often these earlier cases can be used as a reference to determine the value of another case. An experienced attorney can help you determine how the facts of your case compare to such earlier cases.

back to top

Q: Are civil lawsuits confidential?
A: Although most lawsuits are considered public proceedings, lawsuits involving rape and sexual assault can often be kept confidential. Victims can file as a “Jane Doe” plaintiff and request to have sensitive documents filed under seal so that the public does not have access to them. Further, judges have broad discretion in these cases to exclude all persons from the courtroom who do not have a direct interest in it. However, such a lawsuit cannot be kept confidential from the defendant who is being sued, and often the defendant is not prohibited from discussing the case with others, if he wants to.

back to top

Q: Who could I sue?
A: Civil lawsuits can be brought against anyone who was in some way responsible for a loss caused to another. Victims of sexual abuse and violence almost always have a claim against the perpetrator. However, they may also have claims against other people or entities, such as companies that did not provide adequate lighting or security, or persons who had some duty to stop the perpetrator but did not.

back to top

Q: What if the only evidence is my word against the perpetrator?
A: In a civil trial, a jury ultimately decides who should prevail. The jury is often presented with all relevant evidence, and then asked to make a decision. If the only evidence is the testimony of one person against the testimony of another person (he-said, she-said), the jury would decide which person, if either, is more credible. If the victim is deemed more credible, the victim is more likely to prevail.

back to top

Q: Is it worth filing a civil case?
A: Before any lawsuit is filed, each person should carefully consider whether it is wise for them. Here, we discuss only two important issues to consider: the financial and emotional goals.

The primary remedy in a civil law case is a monetary judgment, which is best understood as a legal order that requires the defendant to pay you money. Unfortunately, even if you obtain a judgment, many defendants do not have money to pay it. These defendants are often called “judgment proof.” For instance, imagine a victim obtains a judgment for $1,000,000 but the defendant has absolutely no money. In this situation, the victim is unlikely to ever receive real money. When this happens, the victim is often left with little more than a piece of paper, and a feeling that even though they technically won the case, in reality they gained nothing.

Therefore, it is often not wise to spend the time, money and emotional energy pursuing a civil case against a judgment-proof defendant. Before pursuing a civil claim, you should consider not only whether you would be able to convince a jury that the defendant engaged in wrongful conduct, but also think ahead about what whether the defendant would be able to pay a judgment if the jury finds in your favor.

Likewise, a lawsuit may last many months, or even longer. A lawsuit requires parties to contribute time, information, energy, and to stay involved while the case is pending. Some find this process to be stressful. Ultimately, each person must weigh the potential benefits and detriments of a lawsuit.

back to top

Q: Do I have a case?
A: The best way to determine if you have a case is to speak with an attorney experienced with the laws of your state. You can click here for a free and confidential evaluation of your situation.

back to top