Domestic Violence, the NFL, and What the Law Can Do For You

By Sandra Widlan

A lot has been said about the NFL’s response to Ray Rice’s knockout punch to his then fiancée in a casino elevator.  However, little has been said about the civil remedies available to women who have been physically abused or sexually assaulted by athletes. The criminal justice system sometimes fails abuse victims.  As Michael Powell reported in the New York Times article “What Were They Thinking?  Ugly Video, Blind Justice”:

In February, after Rice knocked Janay Palmer senseless in a casino elevator, Atlantic County prosecutors obtained two tapes. They watched as Rice delivered his knockout blow, and they watched as, with chilling nonchalance, he lugged his fiancée’s unconscious body five-sixths of the way out of the elevator. Then he picked up her shoes.

Not long after, a grand jury handed up a felony indictment.

Then the prosecutors did the legal equivalent of nothing. They allowed Rice to enroll in pretrial intervention, in which he agreed to counseling and admitted nothing. It was the puncher’s equivalent of a traffic ticket.

A civil lawsuit can be an alternative remedy to criminal prosecution.

In a civil lawsuit, the victim (called the “plaintiff”) seeks to recover monetary damages from the perpetrator as compensation for pain and suffering and emotional distress.  By contrast, a criminal prosecution seeks punishment of the perpetrator through confinement, community service, and/or fines.  In some ways, it is easier to win a civil lawsuit:  unlike a criminal prosecution which requires that the crime be proven “beyond a reasonable doubt,” a civil lawsuit only requires that the plaintiff prove the offense occurred on a “more probable than not basis.”

Victims of abuse don’t have to rely only on the NFL or prosecutors to find justice.

Sexual Assault in the Military

By Kathy Goater

Aren't they Ashamed?  One of the most high-profile sexual misconduct cases in years ended when a military judge at Fort Bragg gave Brig. Gen. Jeffrey Sinclair a formal reprimand and ordered him to forfeit $5,000 a month in pay for four months.  Sinclair was allowed to remain in the military, keep his pension and avoid jail time under a plea deal which dropped the most serious charges of sexual assault, “open and notorious” sex, and threatening to kill the accuser and her family.  

Seriously - a plea bargain followed by a reprimand and fine is all that happens to a high ranking member of the armed forces who admits to engaging in inappropriate relationships with three female subordinates?  In the real world that’s called sexual harassment for which the perp would be liable to the victim and required to pay compensation for the emotional/psychological injuries he caused.  Should anyone be surprised General Sinclair smiled and hugged his attorneys after that sentencing hearing?

The military’s answer to victims of sexual assault and harassment doesn’t even amount to a slap on his proverbial wrist.  Do you think your women friends in the armed services are more secure knowing this is how the military is going to deal with sex offenders and men in power who sexually harass subordinates?

The military does not have a good record for responding to or curbing sexual assault and harassment.  A Pentagon study estimated there were 26,000 cases of unwanted sexual contact in 2012 up from 19,000 from the previous study.  The pentagon also reported 5,000 reports of sexual assaults in the military for fiscal year 2013, which was a 50% increase from the preceding fiscal year.  

President Obama signed reforms in December 2013 that established minimum sentencing guidelines for military personnel found guilty of sex crimes, stripped commanders of power to overturn sentences that result from court-martials, and eliminated a 5 year statute of limitation on reporting sexual assault. 

These reforms are not enough.

Last month, the top army prosecutor of sex crimes,  Lt. Col. Joseph “Jay” Morse,  was suspended after a lawyer who worked for him recently reported he’d groped her and tried to kiss her at a sexual-assault legal conference more than two years ago.  The president of Protect Our Defenders, Nancy Parrish observed,

             "If true, this case is yet another disheartening example of the hollow pledges of ‘zero tolerance’ we have heard for more than 20 years.”  

            “When the military has those at top of the chain who are in charge of fighting sexual assault accused of sexual misconduct at a conference on sexual assault it should be clear to every level headed human being [that] the status quo must be changed." 

Why can’t we have accountability?

Unfortunately, Senator Kirsten Gillibrand’s (NY) attempt to pass legislation that would strip the chain of command’s authority over sexual assault cases was not successful.  Her legislation lacked sufficient votes to overcome a filibuster – a filibuster designed to preserve the status quo of letting the chain of command control sex assault prosecutions.   The stats released by the Pentagon demonstrate the status quo isn’t working.  Out of 26,000 estimated military sexual assaults in 2012, only 3,374 were reported, and only 302 were prosecuted, according to the Department of Defense. 

What about a civil lawsuit?

The United State Supreme Court in its ruling in Feres v. United States, 340 U.S. 135 (1950), determined that federal law governs claims by members of the military while on duty for injuries caused by the negligence of the government.  The law of this case is known as the Feres Doctrine.  The basic premise is that a person in the military can’t sue the government for its negligence in causing injury.  There is a substantial body of case law interpreting the Feres decision, but none of it permits a member of the service, who is a victim of sexual assault, to sue the US government regardless of how careless the military has been in terms of stopping sexual assault or protecting them from such assaults. 

There have been many creative attempts to work around the holding of Feres, for the most part without success.  Whether the Feres Doctrine precludes lawsuits against the perp, is a different question, but suing an individual generally requires a belief that the perp has sufficient assets to make the journey worthwhile.

Sexual Abuse when I was a Child: Is it Too Late to Act?

By Kathy Goater

"I've just become strong enough to confront my abuser - can you help?"  This is a conversation I have with prospective clients several times a month. Child sexual abuse is perpetrated by persons with leverage over the child - be it age, position of trust, authority, or the ability to instill fear.  It may take years before the victim of the abuse is able to confront what happened and come to grips with the impact of the sexual assault on their psyche and emotional well-being.  We repeatedly see this dynamic in media reports of sexual abuse perpetrated by priests, television personalities, and sports figures.  Make no mistake, this same pattern of delay in reporting sexual assaults and the concomitant occurrence of long term harm, happens with victims of sexual assault in all walks of life.

What about the delay in taking action?

Washington law recognizes the dynamics of child sexual abuse and permits the filing of lawsuits when a victim realizes the impact of abuse years after the abuse occurs.  RCW 4.16.340  Even when the criminal justice system can't or won't act, victims still have an avenue to hold accountable those who perpetrated the abuse or were responsible for creating an environment where abuse was able to occur.

What are your options?

• Contact the authorities:  If your primary goal is to stop the offender from hurting another person, report what happened to those who have a legal obligation to protect children.  Call the policeorchild protective services.
• File a civil law suit:  Your attorney can send a letter to the perp as notice of thelawsuit you are about to file and to request their attorney contact your attorney by a date certain if (a.) they wish toresolve the matter before your lawsuit is filed, (attaching a copy of the lawsuit is advisable),  or (b.) to advise if their attorney will accept service of the lawsuit.
• Determine if other persons or groups had a legal duty to have acted to prevent the abuse.  If so, proceed with a lawsuit against those whose actions were deficient and resulted in creating a situation where the abuse occurred.

The dynamics of child sexual abuse results in delayed reporting of the abuse - this is the norm.  Even when the abuse occurred years ago, one may still be able to bring a civil lawsuit against those who should be held accountable.  Civil lawsuits can effect change, assist in one's healing process, give the victim the opportunity to be heard, and provide compensation for the harm that has been caused.