Justice for CRIME VICTIMS:

CIVIL TORT CLAIMS AGAINST CRIMINAL PREDATORS ©

Kevin R. Madison, Attorney at Law

Former Police Chief and Former Assistant District Attorney

There is a movement gaining momentum across the United States to seek redress for physical assaults and sexual assaults in civil courts. Although we are familiar with the criminal justice system as “the" system of redress for victims of assaults" many crime victims are unaware that they may have a viable cause of action for monetary (money) damages against assailants in the civil court system. These civil actions are becoming more common in courts throughout the U.S.

Any criminal assault committed against a person can not only be prosecuted in criminal court but most states, including Texas and California, also allow crime victims to sue their assailants for these intentional assaults (“torts") in the civil court system. Physical assaults, sexual assaults, sexual exploitation by doctors, therapists, and church officials, and date rape can result in a civil verdict against predators resulting in an award of monetary damages to the victim.

In addition to compensating crime victims for their “actual damages" which may include medical bills, mental health counseling bills, and reimbursement for lost wages, civil court juries in most states can award “punitive" (exemplary) damages against criminal predators as a punishment to deter others from committing these illegal and despicable acts. Some of these punitive damage awards can be significant. In a case that I filed and took to a jury trial in Austin, Texas a jury awarded a significant verdict and damages award for a police officer who was assaulted while on-duty responding to a family disturbance involving a pharmacist and his son. In the case of Lakeway Police Officer Hector Almaguer vs. Garland Gross, a Travis County jury awarded approximately $8,500 in medical bills, $8,500 in physical pain and suffering, and $30,000 in punitive damages against the defendant. The defendant pharmacist paid the judgment before the feds sent him away for 60 months on a drug possession charge.

Why should a crime victim file a civil lawsuit against the perpetrator of an assault? There are several answers to this question. Some reasons for pursuing civil litigation against criminal predators include: (1) exposing individuals who commit these crimes to the public through media coverage and press releases (local news media are most interested in these cases); (2) seeking money damages to assist the victim in paying for medical and/or psychological counseling; (3) documenting assaults and identifying criminal assailants in the civil court system where they remain on file, in perpetuity. This is not the case in the criminal justice system where criminal records can be sealed or expunged. Civil records are not expunged and rarely sealed, except in adoption cases.

Before a crime victim decides to go down the path of civil litigation, a conference with an attorney who is well-versed in crime victim law and intentional torts (assaults) should occur. Crime victim cases are much different than simple automobile collision injury cases. Most civil lawyers are not experienced or trained in how to properly investigate these “quasi-criminal" cases and do not understand how to civilly prosecute these cases. There are only a handful of lawyers in the United States who understand these cases. "Crime Victim" lawyers who have a background in law enforcement and criminal prosecution have more experience in how to handle these civil tort cases that civil "Personal Injury" (car accident) attorneys.

Meeting with an experienced attorney can help the crime victim understand the process through the civil justice system, determine whether there is a viable cause of action, and most importantly, whether there is a reasonable chance of actually recovering money damages against a perpetrator.

Most states, like Texas, have a limitation period on civil and criminal actions. These periods of time are referred to as “Statutes of Limitation." They govern the amount of time that can pass before a criminal or civil case can be filed in court and pursued through the courts system. For example, in Texas victims of assaults or unwanted touching or groping by an employer have two years from the date of the assault to file suit and serve the defendant with the lawsuit. There are a few exceptions to the two year limitation period, such as when the perpetrator leaves the state.

A civil judgment obtained against an assailant who "willfully and maliciously" assaults another cannot be discharged by the defendant by filing for federal bankruptcy court protection, like other debts or judgments can. This federal bankruptcy law applies to all bankruptcy courts throughout the United States. If a crime victim is able to obtain a civil judgment against a criminal predator for a physical assault, and there is a court finding that the act was intentional and malicious, that judgment cannot be discharged or dissolved by a federal bankruptcy court.

One other matter that should be addressed is that of “Crime Victim Rights" set forth by statute. Many states have laws that mandate that crime victims have certain rights that prosecutors must follow. Crime victims usually have the right to prepare and have the Court consider a victim impact statement before sentencing the defendant and the right to be notified of all court hearings, and the right to know about any plea bargain offers made to the defendant by prosecutors. In some states, like Texas though, in order to exercise these rights, a crime victim must invoke these rights. To invoke your rights, you must simply put the prosecutor and judge “on notice" that you "invoke all rights afforded you under the Texas Crime Victims Act." When my law firm represents crime victims on any case that stems from a criminal charge (DWI, Assault, Sexual Assault), we send a “Crime Victim Rights" letter to the District Attorney or County Attorney. In Texas, prosecutors are duty bound to follow the mandates of the Texas Code of Criminal Procedure that govern crime victim’s rights. Whether or not a crime victim decides to pursue a civil claim against the perpetrator, I would encourage all crime victims to send the prosecuting attorney a “Crime Victim Rights" letter. This can help establish your intent to invoke your legal rights as a "crime victim" under the Act. A sample “Crime Victim Rights" letter can be found in downloadable format (Microsoft Word) at ** www.kevinmadison.com.**

Unfortunately the most important factor for an attorney when deciding whether to accept a crime victim case may hinge on whether the defendant has any significant assets. Without money in their bank account or assets to seize, there is little point to justify the expense and enormous amount of time an attorney has to expend pursuing civil litigation against the perpetrator. Although this topic may not be a pleasant one, it is an important one. I have found that people who commit assaults do not fit into one class and they cross all gender, race, and economic boundaries. There are cases involving doctors, lawyers, fraternity members, and successful businessmen who commit assaults.

Crime victims and their families should be cognizant of their rights to pursue civil claims against criminal perpetrators. Most lawyers, like this author, handle these cases on a contingency (percentage) fee basis. If the attorney is able to obtain a recovery for the client he receives a percentage of that recovery. If the attorney is unable to obtain a recovery for the client, the client owes the attorney nothing, not even out-of-pocket costs. Lawyers who handle these cases do not charge for initial consultations either, by telephone or office visit. Thus, there is nothing to lose for an officer to meet with a competent attorney and discuss the possibility of pursuing a civil claim against the perpetrator.

About the author: Kevin R. Madison is an Austin attorney with over 30 years litigation experience and over 25 years of experience as a judge. He was the first attorney in Travis County to file a civil lawsuit against an assailant on behalf of a police officer attacked during a family disturbance call in Lakeway, Texas. Kevin Madison has served as a Police Officer, Chief of Police, and Assistant District Attorney. His website is www.kevinmadison.com and also hosts a website for victims of sexual harassment and sexual exploitation by professionals at www.texassexualharassmentattorney.com.