What if the District Attorney Rejects My Sexual Assault Case?

By October 23, 2018 January 29th, 2020 Blog
What if the District Attorney Rejects My Sexual Assault Case?
This post was written before the passage of AB-218. For information regarding the statute of limitations for filing a civil lawsuit for childhood sexual assault/abuse, click here or contact our team of experienced representatives.

 

It can feel terrible when the District Attorney dismisses your sexual assault case. One study found that only 17% of cases were accepted by the LA District Attorney. National research conducted by the University of Kentucky’s Center for Research on Violence Against Women came to similar conclusions—that anywhere from 14 to 18 percent of sexual assaults are prosecuted nationwide.

As devastating as it may seem, such a dismissal is not a reason to give up hope. District Attorney proceedings are often the beginning of your journey, but don’t have to be the end.

Why Do District Attorneys Reject Sexual Assault Cases?

There are many reasons a DA might reject a sexual assault case. Here are some common reasons, and high-profile cases that illustrate them:

  • Statute of Limitations: Prosecutors declined to file charges against actor Scott Baio, stating that the statute of limitations had passed. The alleged abuse took place in the 1980s, under a 10-year statute of limitations. Just this year, SB 813 eliminated the statute of limitations on rape and child sexual abuse altogether, but it is not retroactive.
  • Insufficient Evidence or Witnesses: It’s not easy to win a “he-said-she-said” case in a criminal court where the burden of proof is high, especially if you’re going up against a well-known celebrity like songwriter Seal. Upon looking into the allegations that Seal groped and forcefully kissed a young actress, the LA County District Attorney’s office could find no evidence to corroborate the story. Similarly, a case against musician Marilyn Manson was dismissed based on “lack of corroboration.”
  • Classified as a Misdemeanor: The DA is in charge of prosecuting federal felony assaults. Essentially, it’s Defendant vs. The State, with you acting as a witness to the crime. When the crime itself is a misdemeanor, it falls under local jurisdiction. One example is the case of Hollywood agent Tyler Grasham. Of the four complaints against him, two were thrown out for being past the statute of limitations, one was declined due to lack of corroboration, and one case was remanded to the LA City Attorney for possible misdemeanor prosecution. The city attorney later rejected the case based on the statute of limitations.
  • Refusal to Testify: At least five allegations have been made against director James Toback, but most cases are deemed “outside the statute of limitations.” In one case, the woman who brought the allegation later refused to cooperate with the DA during the investigation. If she changes her mind and works with them, the case can be re-opened.

Will the DA Reject My Case if I Can’t Testify?

You may have heard that District Attorneys seldom represent cases where the victim is unwilling to testify in court against the attacker. This is not necessarily true. The DA may still pursue charges even if you do not wish to testify under several different circumstances. For instance, if the abuser willingly admits the offense took place, your testimony will be unnecessary. You may not need to testify if there were bystander witnesses or other victims who have come forward to testify.

Live court testimony is always the most compelling, but it may not be necessary if you testified at a previous hearing or answered questioning on record. There are alternatives to providing testimony live in court, particularly for child victims of sexual abuse who may be traumatized by the frequent re-telling of their abuse. Since defendants may balk at the use of recorded testimony as infringing upon their rights to cross-examine the witness, another option is to request closed-door questioning in the judge’s chambers, without the defendant present. A 9-1-1 call can also be used as evidence in most court proceedings.

What To Do When the District Attorney Rejects Your Sexual Assault Case

District Attorneys frequently decline to pursue cases that are perfectly viable in the civil court context. Nevertheless, survivors sometimes report feeling as though office officials “disbelieved” their stories or even blamed them for what happened. There are DAs who look for corroboration and DAs who look for any excuse to reject sexual assault claims. A good 80% of cases simply require “further investigation.”

Critically, a criminal prosecution must overcome a higher standard of proof (beyond a reasonable doubt) when compared to a civil lawsuit, so a DA may decline to prosecute a case that would be strong in the civil forum.

So if the District Attorney rejects your sexual assault case, your best options are to:

  1. A)   Work with an attorney who can present a stronger case to the DA.
  2. B)   Try to resubmit to the DA while also pursuing civil litigation.  

What Do You Need To Win a Civil Sexual Assault Lawsuit?

Criminal proceedings are aimed at putting the abuser behind bars, while civil proceedings punish wrongdoing through financial channels. Here is what you need to have a civil case:

  • Some type of injury or loss: Sexual assault is an extremely disruptive and life-changing event. If assaulted, your physical injuries (resulting in expensive medical care) may be evident immediately. More often, however, sexual assault injuries and losses appear years later on a mental and emotional level. You may be entitled to financial compensation for tangible losses like medical expenses, therapy bills, loss of income, as well as intangible losses such as loss of enjoyment in life or emotional pain and suffering.
  • A culpable entity: In addition to suing the perpetrator, you may have a substantial case against other entities who breached their duty of care. For instance, when a teacher commits a sexual assault, school administrators, the school district, and their insurance company are often held liable for hiring and retention practices, failure to report, and failure to protect. Finding an attorney who specializes in this type of law is important in presenting a compelling argument that is likely to sway a judge and jury.
  • Proof: In civil lawsuits, the standard of proof is lower—rather than proving beyond reasonable doubt, you must prove your case based on “a preponderance of the evidence.” By definition, if more than 50% of the evidence points toward the likelihood that your version of facts, damages, fault, and causes are correct, you win.

Many survivors prefer the civil system because it gives them the power to run their own investigations and decide what restitution is acceptable. Their attorneys can subpoena witnesses and uncover all the facts surrounding an incident of abuse. In that regard, pursuing civil litigation is not just about money: it’s about accountability. If the District Attorney rejects your sexual assault case, civil litigation is still a viable option; especially with the right attorney who will fight hard for your case.     

Sexual assault is an ugly crime, and rarely are the circumstances easy to prosecute. Here at Lewis & Llewellyn, working with difficult cases is a big part of what we do. We can help you gather evidence, prepare for interviews, and build a strong civil case. The District Attorney acts as a gatekeeper of criminal justice, but there are other avenues to justice, healing, and compensation. 

Contact or call +1 (415) 800-0590 Lewis & Llewellyn for a free, confidential case evaluation. Prior DA rejection does not preclude you from working with an attorney to explore other possibilities.


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