About Legal Options Available for Victims of Crime
In the aftermath of crime, in addition to coping with the trauma of the events they experienced, survivors also have important legal rights to consider. They may choose to pursue a criminal prosecution, to pursue a civil lawsuit, to seek Victim Compensation through the Attorney General’s Office, to obtain a Restraining Order, or all of these things. Failure to promptly report a crime is not a fatal flaw to exercising any of these options except Victim Compensation. Even there, however, exceptions for failure to report within the required five days of the crime may be made for “good cause.” Therapists should be aware of the process of each form of legal redress to better assist their clients.
In a criminal prosecution, the central question is whether the perpetrator committed the crime. The government brings the charges, and if a conviction is obtained, the prosecutor makes a sentence recommendation to the court with the victim’s input. The victim typically does not receive any compensation. The crime must be proved “beyond a reasonable doubt,” which requires a very high level of proof. The victim must testify at trial and be subject to cross-examination. Depending on the severity of the crime, she may need to testify briefly before the Grand Jury. In many cases, however, defendants plead guilty and eliminate the need for a trial. Defendants are more likely to plead guilty when they know that the victim is prepared to testify.
In contrast to criminal prosecutions, civil lawsuits are brought directly by crime victims for financial compensation based on the harm they sustained as a result of the crime. The party sued may be the perpetrator of the crime, but more often is a landlord or institution such as a school, camp or bar whose negligence contributed to the crime. The victim can receive compensation for physical and emotional injuries, lost wages, and pain and suffering. The victim can be compensated for harm directly caused by the crime, or for the emotional harm caused by the crime that exacerbates pre-existing symptoms (for example, PTSD symptoms from childhood trauma may be exacerbated by sexual assault in adulthood). It is possible to obtain a monetary award in a civil case even if the criminal has not been identified, arrested, or convicted of the crime.
To make a case financially viable, however, the responsible parties must have access to some source of money from which the victim can be paid—typically, some kind of insurance or assets, like real estate holdings. A civil case need only be proved by a “preponderance of the evidence”—that is, the victim must show that it is “more likely than not” that the parties sued are responsible for her injuries. This is a much easier standard to meet than the level of proof required for criminal cases. The victim must testify at trial, and at a deposition. (For more information, see the Victim’s Role In a Civil Lawsuit.) The vast majority of civil cases are settled without a trial, however.
If the criminal is a family or household member of the victim, or was in a substantial dating relationship with him or her, the victim may be able to obtain a Restraining Order that orders the offender to stay away from the victim and/or vacate their shared home.
Victims who report the crime to police may be eligible for up to $25,000 of compensation for out-of-pocket medical and counseling expenses, lost wages, loss of support and funeral expenses from the Victim Compensation fund.
Many crime survivors have described feeling empowered by the process of filing a civil lawsuit. It can bring them financial relief and enable them to get the medical and mental health interventions they need. It can provide an opportunity to bring about positive change by negotiating important non-monetary outcomes such as policy changes, added security measures, and training and awareness programs. Finally, a successful result in a civil lawsuit can allow the victim to feel vindicated—a feeling that can be difficult to achieve in a criminal case where the burden of proof is higher and the victim has less control over the outcome of the case. A civil lawsuit typically takes one to three years to resolve, but the victim only has intense involvement at a few points along the way—usually a few days each at the beginning, middle and end of the case.
About the Therapist’s Role in a Criminal Prosecution
In criminal cases, the victim’s therapist typically does not testify. However, defendants frequently attempt to obtain therapy records to undermine the credibility of the victim’s testimony at trial based on a mental health condition or inconsistencies between the victim’s factual statements in the therapy records and the victim’s trial testimony. Information contained in the victim’s records about her sexual history before and after the crime is only relevant in a criminal case if it would support the defendant’s claim of mistaken identity or if the victim has admitted making false allegations of rape in the past. If the defendant attempts to obtain the victim’s records, the prosecutor may contact the victim and the therapist and/or keeper of the records to ensure that appropriate steps are taken to assert any relevant privileges and safeguard the victim’s privacy. Therapists should ensure that they understand their legal obligations before turning over any records. For more information about what to do when receiving a subpoena for a client’s records, see About Confidentiality of Client Records.
In civil lawsuits, a victim’s therapy records are critical to proving the extent of the harm attributable to the crime. The victim’s psychological symptoms, and physical symptoms triggered by traumatic experiences (e.g., difficulty sleeping, difficulty concentrating, nightmares, flashbacks, poor appetite, weight gain or loss), both before and after the crime are relevant. In cases of sexual assault or sexual abuse, any history of sexual abuse is also relevant. Defendants in civil cases can be held responsible for the exacerbation of pre-existing symptoms. They typically argue, however, that the victim’s harm was caused entirely by the prior victimization, or that the exacerbation of the pre-existing harm was minimal.
A victim’s attorney in a civil case may request, with authorization from the client, the client’s therapy records. They may also request a treatment summary to support a claim for damages, and consult with the therapist about the client’s condition and prognosis. The attorney may ask the therapist if it is her opinion that the harm suffered by the client was caused by the crime. The therapist need not rule out all other possible causes of the harm. The therapist need only believe that the crime harmed the client “to a reasonable degree of psychological certainty” for the client to be able to prove her damages in the case. Attorneys typically do not share the mental health records or treatment summary with the client without consulting first with the therapist to ensure that the therapist has had a chance to address this with their client and that viewing the records will not cause the client further distress.
If a lawsuit is filed, the therapist may be deposed before the trial. A deposition is out-of-court testimony made under oath and transcribed by a stenographer. The attorney who requests the deposition will question the therapist about her/his treatment of the client, usually for about two to three hours. That attorney is responsible for paying the therapist a reasonable fee for her/his time in preparing for and attending the deposition. The victim’s lawyer should work with the therapist to prepare her/him for the deposition, to accommodate her/his schedule and to minimize inconvenience to the therapist.
In many cases, after the parties exchange all the available information about a case, they negotiate an out-of-court settlement. If the case is not settled out of court, the client may need the therapist to testify at trial to explain the details of the emotional harm suffered by the victim. Although the records or a treatment summary are admissible, live testimony is generally more convincing than paper records, particularly if the victim’s condition or treatment is complex. Some lawyers hire experts to conduct forensic evaluations of the victim and testify at trial, but juries generally find the testimony of treating therapists to be more credible. The client’s attorney should work with the therapist to address any professional or ethical concerns the therapist may have, to prepare her for any testimony, and to minimize scheduling inconvenience to the therapist. The client’s attorney should also consult with the therapist periodically to help evaluate the best course of action in the case in light of the client’s mental health. Whatever the therapist is called upon to do during the course of a civil lawsuit, s/he is entitled to a reasonable fee for her/his time and for the expense of producing any records.
Confidentiality of clients’ records is protected by the following laws:
G.L. c. 233, § 20B Pscyhotherapist-patient privilege;
G.L. c. 112, § 135B Social Worker-Client privilege;
G.L. c. 233, § 20J Confidential Communications to Sexual Assault and Domestic Violence Counselors; and
G.L. c. 233, § 20K Confidential Communications to Domestic Violence Counselors
These laws prevent the disclosure of confidential communications between a client and therapist/counselor except in certain circumstances. One of the exceptions is where the client has placed her emotional or mental state at issue in a case. In civil lawsuits arising out of crimes, emotional distress is usually the largest portion of a victim’s damages. Thus, to prove her claim of damages, a client’s therapy records typically must be provided to the attorney on the other side, but the lawyers typically agree not to show the records except as absolutely necessary in the case.
In criminal prosecutions, the victim’s records are confidential except under certain circumstances. Defense attorneys may be able to obtain therapy records if they can show that the records will be relevant at trial. To obtain the records, the defendant first must file a motion and notify the prosecutor of the records they seek to obtain. The court will set a hearing to determine whether the records are relevant and whether they are protected by a privilege. The prosecutor will notify the therapist and the victim of the date and time of the hearing. Records that appear to be protected by a statutory privilege are presumed to be privileged (even if the record-holder does not appear at the hearing), unless the victim affirmatively waives the privilege. If the therapist does attend the hearing, the therapist and victim can tell the court whether the records sought are relevant and affirm that they are statutorily privileged. If the court decides the records are relevant but privileged, it will issue a summons for the records. The therapist should then deliver the records to the court in a sealed envelope with the name of the case and the word “Privileged”. The defendant’s attorney may review the records but cannot show them to his client or anyone else without seeking permission from the court. If the court allows the defense attorney to view the records, the victim is strongly encouraged to also share the records with the prosecutor, so that she can refute any arguments made by the defendant about the records.
In criminal cases, the name of a sexual assault victim may not be published without a court order or the victim’s consent. Most major newspapers have policies against the publication of the names of sexual assault victims. Victims of other types of crimes do not have this specific protection. In civil cases, documents filed in court, including those that identify the victim, are public records, unless the court has granted an order to keep them under seal.
A therapist’s notes of sessions with clients and treatment summaries frequently corroborate the client’s claims in civil and criminal cases, but defendants will typically try to use these records to argue that the victim’s harm arises from some source other than the crime, to show that the victim has made inconsistent statements about the crime or the harm it caused, or to obtain information that is unrelated to the crime or the client’s current therapeutic treatment that may damage the client’s credibility, such as the fact that an adult victim of rape had used marijuana in high school, had children by different fathers, or had an abortion in the past. If they are maintained as part of the client’s records, defendants also may seek copies of preliminary drafts of treatment summaries or notes written by mental health providers to compare different versions of the same report and test the credibility of the provider. For these reasons, therapists should ensure that any information in the client’s record is directly related to, and necessary for, the client’s ongoing therapeutic treatment.
Many victims are uncertain whether they want to pursue any legal options, and may, therefore, delay reporting. Survivors of crime should strongly consider reporting the crimes immediately even if they are not yet certain what they want to do. Reporting the crimes allows police to investigate while memories and physical evidence are still fresh and to preserve any evidence and statements they obtain. It also allows victims to have medical examinations that can reassure them of their health and well-being, or allow them to receive prompt treatment and preserve potential evidence. Reporting also enables crime survivors to seek Victim Compensation from the Attorney General’s Office if otherwise eligible, and it bolsters the victim’s credibility in any court case. Police and prosecutors will not typically force a victim to pursue sexual assault charges if she chooses not to, but they will keep the evidence on file should she change her mind.
Civil and criminal cases have very different filing deadlines. For information regarding filing deadlines in civil cases, click here. For information regarding filing deadlines in criminal cases, click here. Claims of sexual harassment or sexual assault on the job, which are a type of civil case, must be filed within 300 days of the last incident of harassment. For more information about sexual harassment claims, see Workplace Discrimination and Sexual Harassment.
The information in this website does not constitute legal advice. Merely viewing the site is not intended to establish an attorney-client relationship. You should consult an attorney to fully understand your rights. For a preliminary case evaluation at no cost, please click here.
