Sexual Assault and the Law

1. Sexual Assault and the Law Robyn E. Dunlap, Esq. Ellen C. Opdyke, Esq. Sexual Assault Legal Institute (SALI) Maryland Coalition Against Sexual Assault (MCASA) rdunlap@mcasa.org e.opdyke@mcasa.org

2. SALISexual Assault Legal Institute • SALI provides direct legal services including representation, advise and referrals for adult and child victim/survivors of sexual assault throughout the State of Maryland in Civil, Criminal, and Juvenile Court, as well as training and technical assistance for professionals.

3. A Word About Language • Telling you things you already know: • Men are victims • We use “women” because women report more often and are the majority of SALI’s cases. • I will use “victim” and “survivor” interchangeably; I prefer the term “survivor”, but “victim” is used in the statutes

4. Working with victims/survivors • Sexual assault victims have gone through a serious trauma. This can effect them in many ways, included but not limited to: • Not talking or talking too much • Inconsistencies in stories due to memory lapse, returning memories, drugs, alcohol, defense mechanisms, etc. • “Acting out” – drugs, sex, isolation • Feeling overwhelmed and unsure how to proceed

5. Working with victims/survivors • Nothing is a right or wrong reaction. Like grief, everyone handles trauma differently. When working with victims, it is best to: • Make allowances for the fact their stories may not be perfect 100% of the time • Allow them to make their own decisions, even if they seem to be going back and forth between options • Be as non-judgmental as possible

6. Working with victims/survivors • Culture can also play an important part when working with survivors. Whenever possible, be aware of: • Someone’s ethnic and/or racial background, economic status, and sexual orientation. • Low income clients may have trouble accessing transportation or taking time off work. • A survivor may be concerned about seeking help if they are not “out”.

7. Working with victims/survivors • Do not force a survivor to do anything, even if you think it’s in their best interest (with some life threatening exceptions). • Talk calmly, quietly, and listen. • Do not pass judgment. Keep an eye on your own biases!

8. Civil Legal Needs for Sexual Assault Survivors What is the impact of sexual assault on survivors?

9. Sexual assault potentially impacts survivors’: … safety … privacy … immigration … housing … education … employment … financial stability … domestic relations

10. Civil Legal Needs for Sexual Assault Survivors Can the criminal justice system help with any of these? Does it?

11. Civil Legal Needs for Sexual Assault Survivors #1 Priority Safety

12. Civil Legal Needs for Sexual Assault Survivors: Safety Protective and Peace Orders

13. Civil Legal Needs for Sexual Assault Survivors: Safety Available to victims who have one of the following relationships with a perpetrator: Married or formerly married Child in common Lived together in intimate relationship for 90 days in past year (includes same sex couples) Related by blood, marriage or adoption Protective Orders

14. Civil Legal Needs for Sexual Assault Survivors: Safety Stay away order Order to vacate Temporary custody and visitation Emergency Family Maintenance Counseling Use and possession of home and car Removal of firearms Protective Orders can provide:

15. Civil Legal Needs for Sexual Assault Survivors: Safety Available to all victims who do not meet the requirements of a protective order Peace Orders

16. Civil Legal Needs for Sexual Assault Survivors: Safety Stay away order Counseling Peace Orders can provide:

17. Civil Legal Needs for Sexual Assault Survivors: Safety Victim/survivor has a legal remedy if the perpetrator violates the order; typically includes criminal charges May prevent escalation of the violence May offer survivors a feeling of empowerment Gives victims/survivors time to seek other legal remedies and support In domestic cases, may provide relief necessary to temporarily stabilize the home (custody, financial support) Benefits Of These Orders

18. Civil Legal Needs for Sexual Assault Survivors: Safety Requires the victim to testify under oath, setting facts in stone. May allow defense counsel to interrogate a victim sooner than he or she could otherwise. Generally requires a victim to see the perpetrator. Peace and Protective Orders: Risks

19. Civil Legal Needs for Sexual Assault Survivors: Safety Encourage victims who are considering seeking a peace or protective order to contact a knowledgeable attorney first. Do NOT automatically assume that victims of non-domestic assault should seek a peace order Peace and Protective Orders: Addressing the Risks

20. Civil Legal Needs for Sexual Assault Survivors: Privacy Privacy is one of the most significant differences between domestic and non-domestic sexual assault. In non-domestic sexual assault the perpetrator usually does not know the survivor’s personal information. This information needs to be protected. Addresses on case search for peace and protective orders Police should redact copies of police reports they provide parties

21. Civil Legal Needs for Sexual Assault Survivors: Privacy In this area in particular, it is important to keep in mind that prosecutors do not represent the victim. Encourage survivors to consult an attorney before filling out forms that may provide private information to the perpetrator. Attorneys for a victim/survivor can help protect privacy and promote victim/survivor goals (including prosecution if this is what the client wants)

22. Civil Legal Needs for Sexual Assault Survivors: Immigration Many survivors are reluctant to reveal their immigration status, and for good reasons: Perpetrators use it to control Real risk of removal

23. Civil Legal Needs for Sexual Assault Survivors: Immigration What to say to immigrants regarding status: Attorneys will not report anyone to Dept. of Homeland Security (formerly “INS”) There may be assistance (note: Share this information even if survivor does not raise immigration status as a concern.)

24. Civil Legal Needs for Sexual Assault Survivors: Immigration T Visas were created to allow victims of severe trafficking to legally stay in the US to assist in the prosecution of the traffickers. Must get certification from Feds to T Visa.

25. Civil Legal Needs for Sexual Assault Survivors: Immigration Two main types of relief: U Visa VAWA Self-Petition

26. Civil Legal Needs for Sexual Assault Survivors: Immigration U Visas give authorization to live and work in the U.S. Sexual assault survivors may be eligible if they: are a non-citizen; have suffered great physical or mental abuse resulting from a wide range of criminal activity, including rape, human trafficking, incest, sexual assault, abusive sexual contact, prostitution, and sexual exploitation; and help with the investigation or prosecution of the crime.

27. Civil Legal Needs for Sexual Assault Survivors: Immigration VAWA Self-Petitions can give permanent residency to sexual assault survivors who: are non-citizens; are married to, or the child or step-child of, a perpetrator who is a USC or LPR

28. Civil Legal Needs for Sexual Assault Survivors: Financial Compensation Several legal avenues for victims of sexual assault: Criminal Injuries Compensation Board Restitution as part of a criminal case Torts and other Claims

29. Civil Legal Needs for Sexual Assault Survivors: Financial Compensation • Criminal Injuries Compensation Board: • Must “cooperate with law enforcement” • Most crimes: report within 48 hours • For “good cause”: may report within 3 years (including SA and child abuse cases) • Not automatic – Board must find that a crime occurred (difficult if charges not issued)

30. Civil Legal Needs for Sexual Assault Survivors: Financial Compensation • Criminal Injuries Compensation Board: • Criminal Injury Compensation funds are intended to compensate victims of violent crime for certain expenses. Parents/guardians may also be eligible for lost wages • To receive an application for Criminal Injury Compensation, victims can download a form or call: • Maryland Department of Public Safety and Correctional Services, Criminal Injury Compensation Board • 410-585-3010 • www.dpscs.state.md.us/cicb/

31. Civil Legal Needs for Sexual Assault Survivors: Financial Compensation Restitution If the perpetrator has been convicted of a crime: Victims should tell the prosecutor that they incurred expenses and give copies of all bills to the prosecutor before the trial.  Not dischargeable in bankruptcy

32. Civil Legal Needs for Sexual Assault Survivors: Financial Compensation Most legal services agencies prohibited from providing representation in these cases, however, advising clients of options and providing information is not prohibited. SALI provides information on options and referrals. Tort attorneys and SALI attorneys sometimes work together on case. Torts and Other Claims for Money Damages

33. Civil Legal Needs for Sexual Assault Survivors: Financial Compensation Financial costs of sexual assault are high. Tort suits transfer costs to perpetrator. Unfortunately, many perpetrators are judgment proof. Torts and Other Claims

34. Civil Legal Needs for Sexual Assault Survivors: Financial Compensation Third-parties may also have liability, e.g. inadequate security, negligent hiring and retention.  Other non-tort claims may be available, e.g. employment based claims, title IX claims against educational institutions, state-based civil rights actions. Torts and Other Claims

35. Civil Legal Needs for Sexual Assault Survivors: Financial Compensation Statute of limitations in civil suits can be tricky Tort Claim Notice Acts impose even shorter deadlines in cases against government (including public schools). Victims who were minors when assaulted generally have different statute of limitations issues. Torts and Other Claims

36. Civil Legal Needs for Sexual Assault Survivors: Housing Legal representation may be able to assist the victim by advocating for a change in housing through a public housing authority or a private landlord. There are significantly more legal options for victims in domestic violence cases than in non-domestic sexual assault cases.

37. Civil Legal Needs for Sexual Assault Survivors: Employment/Disability Survivors of sexual assault may need legal help with: worker’s compensation disability accommodations Family Medical Leave Act benefits other medical leave

38. Civil Legal Needs for Sexual Assault Survivors: Employment/Disability Survivors who are assaulted by a co-worker, may also have protections and remedies under sexual harassment laws for work-related sexual assaults.

39. Civil Legal Needs for Sexual Assault Survivors: Education 13.3% of college women indicated that they had been forced to have sex in a dating situation. Johson, I. & Sigler, R. “Forced Sexual Intercourse Among Intimates.” Journal of Interpersonal Violence. 15(1) 2000.

40. Civil Legal Needs for Sexual Assault Survivors: Education "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." Title IX of the Education Amendments of 1972, 20 USC §1681 Schools receiving public funds are required to have an appropriate response to sexual assault and may violate Title IX if they fail to do so.

41. Civil Legal Needs for Sexual Assault Survivors: Education • Schools are required by the Title IX regulations to have grievance procedures through which students can complain of alleged sex discrimination, including sexual harassment. • Students who choose to report the assault may need legal help navigating the school’s judicial administrative proceedings. • In addition to legal actions, student survivors may also need help changing dorms, schedules, dealing with the financial aid ramifications of taking time off, and other practical/legal issues.

42. Family Law Many sexual assault victims/survivors are assaulted by their intimate partner. These situations lead to legal problems with divorce, alimony, custody, child support, and use and possession of various family possessions.

43. Defining Sexual Assault:Sexual Assault and Criminal Law • Prosecutors represent the State, not the victim

44. Maryland Crime Victim Rights • The Maryland Constitution: “A victim of a crime shall be treated by agents of the State with dignity, respect, and sensitivity during all phases of the criminal justice process”

45. Core Victim Rights • Informed • Present • Heard

46. Defining Sexual Assault:Sexual Assault and Criminal Law What do we mean when we say “sexual assault?”

47. Defining Sexual Assault:Sexual Assault and Criminal Law • Rape • Date rape • Incest • Child sex abuse • Unwanted sexual contact

48. Defining Sexual Assault:Sexual Assault and Criminal Law Does the law contain the same meaning?

49. Defining Sexual Assault:Sexual Assault and Criminal Law 3 Terms Used to Describe Sexual Behavior Vaginal Intercourse Sexual Act Sexual Contact

50. Defining Sexual Assault:Sexual Assault and Criminal Law Vaginal Intercourse Genital copulation, regardless of whether semen is emitted, including penetration of the vagina.