A SURVIVOR’S GUIDE TO
FILING A CIVIL LAW SUIT
















Presented by WA Coalition of Sexual Assault Programs

This project was supported by Grant Number 2001-WL-BX-0036 awarded by the Office on Violence Against Women,
U.S. Department of Justice. Points of view in this document are those of the author and do not necessarily represent the
official position or policies of the U.S. Department of Justice.

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A publication of the
Washington Coalition of Sexual Assault Programs
Olympia, WA. 2004

The Washington Coalition of Sexual Assault Programs (WCSAP) is a statewide network of community-
based sexual assault programs that work together to provide general advocacy, medical and legal
advocacy, information and referral, and public education regarding sexual violence. Through its
administrative office, WCSAP supports its member programs, works with state and national organizations
to end sexual violence and produces publications such as this guide.

We gratefully acknowledge the Illinois Coalition Against Sexual Assault (ICASA) for allowing us to use
their original guide as a basis for the Washington State version. We would like to acknowledge the
following individuals and organizations who assisted ICASA in the original version of this publication:

• Sarah Hatch, a student from the University of Illinois College of Law, for researching and
writing the guide.
• Connecticut Sexual Assault Crisis Services, Inc. for generously allowing the use of its civil
lawsuit guide.
• Lyn Schollett, Staff Attorney of ICASA, for editing the guide.
• Cynthia Bowman, Joe Klest, Sara Love, Helen McGonigle, Polly Poskin, Marcia Rudin and
Shawn Schenk for reviewing and commenting on the guide during its production.
• Yvonne Bronke, ICASA Office Coordinator, for preparing the guide for publication.

In addition, WCSAP gratefully acknowledges the work by the following individuals for their
contributions to this version, which has been tailored to survivors and advocates in Washington State:

• Barbara Jo Levy, attorney and personal life coach, for her editorial assistance regarding
Washington State laws and civil legal issues.
• Lyn Schollett, staff attorney at ICASA, for her additional editorial assistance.
• Suzanne Brown, Toby Cremer, Steve Eckstrom and Gabriella Möller for reviewing and
editing this guide.

This guide was prepared by Cynthia Okayama Dopke, Advocacy Education Coordinator at WCSAP.

© 2004, 2001 WCSAP

Programs working with sexual assault survivors may reproduce this booklet in whole or in part. It may
not be reproduced or sold for profit.







Washington Coalition of Sexual Assault Programs
2415 Pacific Avenue SE, Olympia, Washington 98501
(360) 754-7583. (360) 709-0305 TTY
www.wcsap.org

This project was supported by Grant Number 2001-WL-BX-0036 awarded by the Office on Violence Against Women, U.S.
Department of Justice. Points of view in this document are those of the author and do not necessarily represent the official position or
policies of the U.S. Department of Justice.

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TABLE OF CONTENTS

Using This Guide ......................................................................................................................................... iv

I. Introduction ...........................................................................................................................................1-2

II. Should You File a Civil Suit?.................................................................................................................. 3
Civil Suit Defined ............................................................................................................................ 3
Why Sue: Pros and Cons.................................................................................................................. 4
Factors to Consider .......................................................................................................................... 5
Loss of Privacy ................................................................................................................5-6
Waiver of Confidentiality ................................................................................................6-7
Cost ..................................................................................................................................... 8
Time .................................................................................................................................... 8
Availability of Damages ..................................................................................................8-9
Availability of a Civil Suit............................................................................................................... 9
Whom to Sue ...................................................................................................................... 9
What Harm to Claim......................................................................................................9-10
Where to Sue..................................................................................................................... 10
When to Sue.................................................................................................................10-13

III. You and Your Attorney ....................................................................................................................... 14
The Attorney’s Role....................................................................................................................... 14
Selecting an Attorney..................................................................................................................... 14
Questions to Ask and Consider...................................................................................................... 15
Questions to Ask the Attorney.....................................................................................15-16
Questions to Ask Yourself ................................................................................................ 16
What Your Attorney Needs to Know............................................................................................. 17
How to Pay Your Attorney .......................................................................................................17-18

IV. How Does a Civil Lawsuit Work? ..................................................................................................20-23
Civil Procedure Explained ............................................................................................................. 20
Pre-Trial Events ...........................................................................................................20-22
Trial................................................................................................................................... 23
Post-Trial Motions ............................................................................................................ 24

Civil Procedure Outline ................................................................................................................. 25

V. Conclusion .......................................................................................................................................... 27

Appendix I: Definitions .........................................................................................................................27-35
Appendix II: Questions to Ask the Attorney .........................................................................................38-40
Appendix III: Questions to Ask Yourself ..............................................................................................41-43
Appendix IV: Attorney Referral Services................................................................................................... 43
Appendix V: WCSAP Member Programs .............................................................................................44-46

Index ........................................................................................................................................................... 47

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USING THIS GUIDE

Efforts were made to make this booklet as gender-neutral as possible. At times,
however, this booklet uses “she” to refer to the sexual assault survivor and “he”
to refer to the perpetrator because women and girls are more often sexually
assaulted and men are more often the attackers. We recognize that there are men
who are survivors of sexual assault and that the prevalence of such assaults may
not be fully known due to underreporting. We also recognize that there are
women who are perpetrators. Sexual assault survivors who file a civil lawsuit
have similar experiences whether they are women or men.

Some words appear in italics in this guide. The definitions for these words may
appear within the guide’s text; all definitions appear in the appendix beginning
on page 27.























DISCLAIMER

This guide is not intended to and does not provide legal advice, assistance or
representation. WCSAP encourages survivors to consult an attorney licensed in
the appropriate jurisdiction regarding their particular case.



iv

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I. INTRODUCTION

In the last several decades, advocates in the anti-rape movement and their
allies worked to name sexual violence against children and adults as an
overwhelmingly unacknowledged social problem. This work has led to
sweeping changes in legislation nationally and at the state level in the efforts
to stop rape and sexual abuse. We’ve also seen the development of rape crisis
centers across the nation where survivors can find support, information and
advocacy. And we’ve witnessed efforts to institute sexual assault training for
the social systems that survivors often must encounter, such as police
departments, child protective service agencies, therapy services and
hospitals.

While such important change has improved the response to sexual assault
survivors, sexual violence continues to plague our society, with estimates
that one of every four girls and one of every six boys will have experienced a
contact sexual offense by the time they are eighteen years old.1 In 1999,
while overall violent crime decreased, reports of sexual assault increased by
33.3% in the U.S. In the same study, reports of rape increased by 20%.2 In a
combined study, the National Institute of Justice and Centers for Disease
Control and Prevention in 1998 determined that nearly 18 percent of women
in the United States have been raped or were the victim of attempted rape at
some point during their lives.3

While rape and childhood sexual abuse are criminal acts punishable by law
in the U.S., criminal prosecution of a perpetrator is not the only legal remedy
available for a survivor. Civil lawsuits have become additional avenue that
survivors can take on the journey toward healing. In the 1980’s, civil
lawsuits filed by survivors of rape and childhood sexual abuse against their
perpetrators began to enter Washington State courts. In response to
grassroots efforts by a survivor and her allies, Washington State lawmakers
passed legislation in 1988 that recognizes repressed memories as a result of
trauma from childhood sexual abuse. Still in effect, this legislation allows the
statute of limitations to begin for adult survivors at the time the abuse is
remembered.

The purpose of this guide is to help you, the survivor or guardian of a child
survivor, understand the advantages and disadvantages of suing your
perpetrator or other responsible parties in civil court. Section II outlines the

1 Finkelhor, David. “Current Information on the Scope and Nature of Child Sexual
Abuse.” The Future of Children, Vol. 4, No. 2, 1994.
2 Rennison, Ph.D., Callie Marie. “Criminal Victimization 1999: Changes 1998-9
with Trends 1993-9.” Bureau of Justice Statistics, National Crime Victim Survey,
U.S. Department of Justice. August 2000. Reports of sexual assault and rape were of
victims aged 12 years or older.
3 Patricia Tjaden and Nancy Theonnes, National Institute of Justice, “Prevalence,
Incidence, and Consequences of Violence Against Women: Findings From the
National Violence Against Women Survey,” 3 (1998).
http://ncjrs.org/txtfiles/172837.txt.

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personal, financial and legal factors that may influence a decision to file a
lawsuit. Section III addresses the relationship between you and your attorney,
and provides some questions to guide you through the attorney-selection
process. Section IV chronologically describes each step of a civil lawsuit.
The guide concludes with questionnaires to aid you in selecting an attorney
and contact phone numbers for WCSAP member programs and attorney
referral services.

Use the information in this guide to help you determine whether a civil
lawsuit is right for you. Consult your attorney, rape crisis advocate and
therapist (if you are in counseling) when making this decision. These
professionals can help you determine whether a civil suit meets your needs.
Keep in mind that a decision not to sue also can be empowering. Ultimately,
you must make the decision that is best for you. Also keep in mind that this
guide is tailored to those able to make informed choices about their own
healing journey. If you are a guardian interested in pursuing a civil lawsuit
on behalf of a child, there are additional factors to consider regarding the
child and yourself. Consult with an attorney or child advocate to discuss
these matters.

You are to be commended for coming so far on the difficult journey of
healing from sexual violence. Knowledge is power. Properly informed, you
will be able to make the decision that is right for you.

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II.
SHOULD YOU FILE A CIVIL SUIT?

A decision to file a civil lawsuit based upon sexual assault requires careful
consideration. For some survivors, a civil suit can be an empowering
experience and an important step in the healing process. A civil suit,
however, is expensive, time consuming and not always successful. It can
drain your emotional resources and affect your recovery because it exposes
your private life to the defendant and, in some instances, to the media. This
section explains how a civil suit differs from a criminal proceeding,
introduces you to the costs and benefits of filing a civil suit and outlines the
personal and legal factors you should consider.


CIVIL SUIT DEFINED

A civil lawsuit enforces, remedies or protects private rights; loosely defined,
it is any suit that is not a criminal proceeding. Civil suits differ from criminal
suits in many respects. Civil suits are private lawsuits, meaning that a
plaintiff (you, the survivor) initiates the action. By contrast, in a criminal
proceeding, a representative of the state (the Prosecuting Attorney) initiates
the action. The benefits of a civil lawsuit are that you have more control over
the case and may confront your perpetrator, if you choose. The downside is
that you may have to pay the cost of the suit, which could easily be tens of
thousands of dollars. In contrast, in a criminal trial, the county where the trial
is conducted pays for the trial.

Civil and criminal proceedings differ in several other ways. Civil suits
involve a lesser standard of proof than criminal cases. The burden of proof in
civil cases is known as the preponderance of the evidence, which means that
the evidence proves that the claim more likely than not occurred. By contrast,
the standard of proof for criminal trials is “beyond a reasonable doubt,” but a
conviction only requires proof of liability; proof of injuries is not necessary.
In a civil suit, you must provide proof of all harms claimed, and must prove
the damages that you claim for each injury in order to receive money
damages. Damages are the legal system’s method of remedying the harm the
perpetrator caused by making the perpetrator pay you money. These damages
are called compensatory damages, and are meant to compensate a plaintiff
for the harm sustained. Currently, Washington state does not allow for
punitive damages, which are damages awarded by the court specifically to
serve as punishment. In some circumstances, if the perpetrator tries to leave
Washington or hides or removes his or her assets from this state, the court
may attach the perpetrator’s property when you file your suit.

A civil court is not able to imprison the perpetrator or require therapy – only
a criminal proceeding may accomplish that. Finally, either party who loses a
civil suit may file an appeal. Only the defendant may appeal after losing in a
criminal trial.



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WHY SUE: PROS AND CONS
Ask yourself,

What are my
Although a civil suit cannot undo the harm the perpetrator caused, damage
personal goals in
awards and the opportunity for vindication make these suits attractive to
filing a suit?
some survivors. It is important to know, however, that a civil lawsuit is

expensive, time consuming and may open the emotional wounds you worked
hard to heal. Carefully weigh the pros and cons of filing a civil suit, and
remember that a decision not to sue also can be an empowering experience.
The most important part of this decision is that you choose, and decide what
is best for you. Below is a list of possible pros and cons to consider when
deciding whether to bring a civil lawsuit for sexual abuse or rape (for
considerations on the relationship between civil and criminal suits, see page
8). Note that many of the pros would only apply with a successful civil suit.

Pros
• expose the wrongdoings of the perpetrator
• compensation for damages: money for medical or therapy bills, pain
and suffering, lost wages, loss of consortium, loss of enjoyment of life
• emotional empowerment
• opportunity to tell your story
• vindication
• acknowledgement by the perpetrator
• acknowledgement by the community
• assist your recovery and healing
• punish the perpetrator
• publicly confront the perpetrator
• strip the perpetrator of power or secrecy
• support from family and friends
• put your community on notice about the perpetrator

Cons
• cost of hiring an attorney and filing a lawsuit
• time for work on the case, meetings with your attorney, attending
court, etc.
• length of proceedings (6 months to two years)
• trial would most likely be open to the public
• loss of confidentiality
• loss of privacy and potential media exposure
• perpetrator present at trial and deposition
• reliving your abuse and delaying your healing process
• alienation from family and friends
• perpetrator may not have the money to pay damages, or it may be
difficult to collect
• community members may not believe you
• perpetrator may file a countersuit
• perpetrator may claim defamation (rare)
• perpetrator may have the right to have you evaluated by a
psychologist or psychiatrist and may choose the evaluator

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FACTORS TO CONSIDER

Many factors will influence your decision regarding whether to file a civil
suit, including the requirement that you make otherwise private information
public, the amount of time and money you will spend pursing the lawsuit,
and whether or not the defendant has assets to pay a damages award to you.
This section describes these factors at length.


LOSS OF PRIVACY

By bringing a civil suit, you probably will lose a great deal of privacy. A
civil suit stems from your claim that the defendant(s) harmed you in some
way. Also, rape shield laws that offer protection in criminal cases do not
apply in civil cases. Consequently, it is your burden to present evidence of
this harm to the court. To do this, you may have to publicize information that
otherwise would have been private. You may feel that some of this
information about you is negative, but it nevertheless is an element of your
claim. Through pre-trial discovery, the defendant can obtain personal
information about you such as your psychiatric and medical records, and
your employment and educational history. You will also obtain information
about the defendant; however, the defendant can investigate so much of your
personal life that it may seem as if you are the person on trial. To illustrate,
below is a list of some of the evidentiary items the defendant might gather
during discovery:

• pediatric records
• past sexual history
• family member
• psychiatric records
(consensual and
testimony
• medical records
non-consensual)
• witness testimony
• whether you have
• victim’s
• calendars or
ever been
compensation
planners
hypnotized
records
• address books
• gynecological
• letters
• doctor’s bills
records
• photographs
• therapy bills
• educational history
• drawings
• information about
• employment
• videos
your social life
history
• blood tests
• alcohol use
• other claims/
• DNA tests
• drug use
lawsuits you
• psychiatric exams
• telephone records
have brought in
• medical exams
• answering machine
the past
• gynecological
messages
• journals or diaries
exams
• computer files
• credit history
• driving history
• criminal record
• tax returns

During discovery, even people other than the defendant and the judge may
review your claims of being injured. For example:


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The perpetrator or the court may request that you undergo physical or mental

exams to determine the existence and extent of the injuries you claim. You
A settlement can
must submit to the exam, but may have your attorney present. The defendant
be reached at
must pay for the exam. Washington Superior Court Civil Rule 35.
any time before
or during the civil

procedure.
As in a criminal trial, an expert witness may testify about your injuries,
especially if you claim to suffer from a posttraumatic stress disorder
including rape trauma syndrome. To do that, the expert may review your
records and/or interview you. Washington Superior Court Civil Rule 35.

If your claim includes recovered memories of past sex crimes, the perpetrator
or other defendant(s) might accuse you of fabricating the memory or claim
that your therapist “implanted” the memory. When a survivor refers to
recovered memories, the defendant(s) often asserts that the survivor suffers
from false memory syndrome. He may even hire an expert witness to testify
at trial to “disprove” your claims. This public and direct challenge to the
validity of the harm that you experienced might seriously affect your
recovery and your relationship with your therapist, advocate or attorney.

Although the scope of discovery may intimidate you, remember that you also
have the opportunity to gather information about the defendant. Since,
however, you are the one making the claim, there may be a greater burden on
you to produce information. Generally, in civil cases, there is a greater
burden on the plaintiff than on the defendant to produce information.


WAIVER OF CONFIDENTIALITY

Although discovery exposes much personal information about your life,
some information is protected by privileges. The communications
(discussion, correspondence and records) between you and certain
professionals are confidential and may not have to be revealed in a civil
lawsuit. The degree of confidentiality you have with each professional is
different. While these privileges exist, you should assume that any
information about your personal life will be subject to examination as a result
of pursuing a civil lawsuit. The privileges are described below.

Attorney-Client Privilege: Absolute Privilege

The attorney-client privilege protects your communications with your
attorney, meaning the attorney cannot release information without your
consent. This privilege is absolute. The privilege begins at the initial
consultation and continues until waived by you; it also applies to the
attorney’s office personnel who work on your case. RCW 5.06.060 (2), RPC
1.6.

Rape Crisis Center: Qualified Privilege

In Washington, the law states that records maintained by rape crisis center
counselors and advocates are not available as part of discovery unless the

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