If you or someone you know has been affected by sexual assault, you already have a lot on your mind. The last thing that you want to think about is the court proceedings, but it is important to understand the difference between a civil and criminal case if you choose to lodge a claim. Here, you will learn the basic distinctions between the two kinds of law, and how they can affect the result of your case.
Understanding the terminology
The first step to understanding the main differences between a civil and criminal case, whether it is sexual assault or not, is to grasp some of the basic terminologies. For a sexual assault case, the best option depends on the result that you’re looking for.
What is criminal law?
Most criminal law cases start because the crime is reported to the police and is confirmed through an investigation. Criminal law involves a prosecutor who is attached to the government body, and who brings the charges against the defendant. The defendant could be an individual or a corporation and is charged with a criminal offence. In the matter of criminal law, the criminal proceeding is conducted in the public prosecution’s office.
The usual outcome for a criminal charge involves the defendant receiving a disciplined action or being encouraged to reform. If found guilty, the defendant receives their sentence from the court, as they deem appropriate. It’s important to note that, in order for the defendant to be found guilty, the jury must have absolutely no reasonable doubt. If there is doubt among the jury, the accused will not be convicted.
What is common law?
For court proceedings that deal with civil law, the case involves two citizens or an organisation. Generally, civil cases result in fees, compensation or other monetary results. The fee could be paying for potential hospital bills or compensating the prosecutor for other expenses. Note that if the defendant is found guilty in a civil court case, criminal charges may not be automatically applied.
The standard of proof is not the same as when compared to a criminal court case. According to the Attorney-General’s Department of the Australian Government, the standard of proof must be met with all evidence and arguments in order to convict the defendant. A civil court case may find the defendant guilty if the claim the prosecution is making can be proved to be more likely than not. This is known as the balance of probabilities. It deals on the basis of your rights and responsibilities as an Australian citizen, and usually does not include the police in most cases.
Each of these kinds of court proceedings has its own advantage for the prosecutor, but the best option depends on the particular situation. This is why it is so important to have a legal team on your side to help guide you through the process and offer advice according to your personal circumstance. Sexual assault law can be complex, and legal advice can go a long way.
How to file a lawsuit
If you wish to take your case through the criminal court, the police must become involved. This means that you have to report the sexual assault crime to the authorities so that they can gather evidence and conduct an investigation. There are channels in each state or territory that sexual assault victims can go through to report their abuse.
For example, the police in Victoria have a specialist unit to deal with this kind of crime. The detectives from the Sexual Offences and Child Abuse Investigation Teams (SOCITs) or Sano Taskforce can help you find the next steps when it comes to the case under criminal law.
Filing a civil lawsuit, however, requires a legal team to help you with the correct evidence and in-depth arguments. Because the suit is between two citizens, each party must collect their own evidence and bring forward an assertion or statement. Even though the police are not directly involved in the case, it is still important to file a report with them so that it can be used as a vital piece of evidence of sexual misconduct.
The process of lodging a sexual assault case
Sexual assault and sexual harassment is a crime that has a long-lasting impact on survivors, and some may be unsure if they can file a lawsuit if the abuse happened a long time ago. The statute of limitations in sexual assault cases must be brought forward within three years. There is no time limit for filing a child sexual abuse case, however.
It is also important to note that individuals who face criminal sexual abuse charges can also have civil claims brought against them. Before proceeding with a sexual abuse claim, your legal team will help you collect evidence. Here are some of the things that can help your case:
- Medical expenses.
- Location records.
- Victim’s signed statement of truth.
- Doctor’s notes.
- Reports from the workplace or other establishments.
From there, the process may vary depending on the state and type of court proceeding, whether it be civil or criminal. Criminal cases will always take precedence over civil court cases. Your legal team can guide you through the procedure.
Though there may be fees and other expenses paid in a criminal case, most compensation comes from the civil court proceedings. The victim can get compensated for:
- Cost of physical or psychological damage.
- Other medical costs.
- Pain and loss damages.
- Loss of earnings.
Working with Gerard Malouf & Partners
As a victim of sexual assault, it can seem daunting to bring forward an abuse case like this. However, with a legal team on your side, the process can be much easier. Gerard Malouf & Partners understands the difficulties associated with the situation and we care about our clients. A lawyer can be an extremely valuable resource for you in both civil and criminal sexual assault cases.
Gerard Malouf & Partners offers free consultations, over the phone and face to face, to help you get started. Contact Gerard Malouf & Partners for no-obligation advice about your sexual assault claim.