The flood gates have opened. Decades of dark secrets are finally coming to light, and the list of powerful figures accused of sexual harassment seems to grow each day. Ironically, many of these revelations, kept in the shadows for so long, were allegedly perpetrated by those in the spotlight.
Consequently, media reports – with their headlines focusing mostly on news-worthy names – fail to accurately portray the extent of sexual harassment and assault problems and the reluctance of most victims to make use of the judicial system. Sexual harassment and assault is not limited by gender, but the majority of recent “high-profile” allegations have been from women, and most studies have focused on female victims.
With the Golden Globes here again, the issue might take center stage.
How Pervasive is Sexual Misconduct?
According to RAINN, the Rape, Abuse & Incest National Network, one in six women in the U.S. have been the victim of rape or attempted rape. A poll conducted by ABC News and The Washington Post disclosed that 14 million American women admitted to being the victims of sexual abuse and 33 million subjected to sexual harassment in the workplace. The poll also showed that 54 percent of women in the U.S. have been the victim of unwanted sexual advances.
Victims Are Reluctant to Speak Out
Though the issue is large, the number of women filing formal complaints is relatively small. National Public Radio estimates only between 5 to 15 percent of women actually report sexual harassment to their employers. Reasons given for women’s reluctance to come forward or make use of the courts include fear of retaliation and a somewhat high rate of dismissal in sexual harassment cases.
Moreover, some individuals may fail to voice their accusations for fear of opening their private and personal lives to the public. Current media attention and the swift corporate response to terminate well-known men of power might give some victims the resolve to come forward, but the same reaction can also cause others to think twice before stepping into the forefront of an issue that has gained national focus.
Furthermore, there is the always-present uncertainty regarding what actually happens if and when such a staggering allegation makes its way into either the civil or criminal legal realm.
When Sexual Harassment Cases Go to Court
Perhaps that is why so few cases of this nature make their way through the legal system. NPR estimates that of all the cases filed, only 3 to 6 percent ever survive long enough to reach the trial stage. A likely explanation is the high burden of proof imposed on victims to show the offending conduct was severe and pervasive.
However, that burden is in regards to civil actions filed by victims as plaintiffs. The same does not always hold true for sexual assault cases filed as criminal complaints by prosecutors. The distinction is an important one.
Many don’t understand that once an allegation has been reported to law enforcement, the decision to move forward with charges is likely out of the victim’s hands. Even if the victim wishes to be removed from the situation for whatever reason, the prosecution can still move forward with its case against the alleged perpetrator.
In a civil case, the plaintiff-victim can move to dismiss the lawsuit at their discretion. There may be attorney fees at stake, but there is still a certain level of control to the proceedings.
Criminal complaints simply don’t function the same way. Hopefully this is due to prosecutors trying to maintain the integrity of the criminal justice system. The reality though is district attorney’s offices and criminal courts make money off the costs of prosecution, probation, and sometimes even incarceration, all at the expense of the criminal defendant.
Regardless if the case is civil or criminal in nature though, there are still similarities. At the end of the day, both actions come down to the credibility of the accuser…and both situations give defendants plenty of opportunities to impugn the reputation of the victim. Sadly, sometimes the scrutiny is for the best, and sometimes it’s for the worst.
Likewise, both civil and criminal actions for sexual assault can be settled through negotiations. Depending on revelations that develop through depositions and evidentiary hearings, one party may decide to give up the ghost. If the media attention gets too heavy, or if counter suits are filed for defamation actions, there is always the potential that the original accusation may result in a settlement. In civil cases, these settlements are often times monetary payouts. Very rarely will you see a criminal sexual assault case disposed of on the basis of a cash settlement.
If a case makes it past the settlement stage, it is obviously confrontational, so the victim and accuser will likely have to confront each other – sometimes in court and in person.
Whether criminal or civil, the defendant will most likely hire an attorney who will be paid to discredit the victim in any way that is legally and ethically possible. It’s often said the only thing worse than being a victim of sexual assault is being falsely accused of it. Because these allegations are so emotionally charged, defendants facing them should, and likely would, hire the best defense they can afford.
Still, those who have nothing to hide hide nothing. If the allegations of sexual assault or harassment are truthful and accurate, the testimony should stay consistent. When the testimony stays consistent, even the most skilled defense attorney will have issues with discrediting the accusations.
There are also evidentiary rules in place that generally preclude the defense from airing any sexual “skeletons” that may be hiding in the victim’s closet.
In either case, a defense attorney will have the chance to question the victim prior to an actual trial. Regardless of the setting, the victim is under oath, and the questions can become very pointed very quickly. However, actual victims should not fear the process. The ends justify the means.