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Sexual Assault and Rape

What is “consent” in the context of sexual assault or rape?

Consent is when someone agrees, gives permission, or says “yes” to sexual contact. To be given, each person must feel free to say “yes,” “no,” or “stop” at any point. Consent can be taken back – you can say yes at first, and then change your mind. You can say yes one day, and then say no another day. Having sexual contact with someone in the past does not give that person permission to have sexual contact with you in the future if you do not consent. A person’s silence is not consent. Alcohol use or consumption of drugs can make someone incapable of giving consent. The Rape, Abuse & Incent National Network (RAINN) is the nation’s largest anti-sexual violence organization. They provide a helpful article about what consent looks like in real life.

Should I report a sexual assault?

It is very normal to question whether or not to contact law enforcement to report a sexual assault. It requires sharing vulnerable, intimate details with strangers. Sexual assault takes an enormous physical and emotional toll on survivors. No survivor is obligated to report their assault, and survivors can choose to report their assault at a later date and time. However, reporting your assault (and doing so close in time to when the assault happened) may help your case in either criminal or civil court, because it helps to preserve evidence. Survivors who do report will be given the option to have a Sexual Assault Forensic Exam (often called “rape kits” or “SANE exams”) to preserve DNA samples, hair, saliva, clothes worn, and other evidence that could help to support a case against an attacker. The nurse performing the exam will also interview the survivor, and may take pictures if the survivor agrees. You can have a rape kit completed before reporting, to protect this physical evidence while deciding whether to report.

Whether you choose to report an assault or not, it is important to talk to someone who can support you in an impossibly difficult time. If you do not feel comfortable talking to friends or family, you can call the National Sexual Assault Hotline at 1-800-656-HOPE for anonymous support, operated by RAINN. Some survivors choose to move forward with reporting as a means of closure, to help begin the process of healing. Others choose to report because they want to bring their attacker to justice. Others choose not to come forward right away, but then later feel ready to step forward. To report a sexual assault, you can call 911, visit the emergency room, call the National Sexual Assault Hotline (1-800-656-HOPE) to be connected to a local rape crisis center, or speak to a law firm like ours that understands the process and can help you navigate it.

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What if I did not fight back during the sexual assault or rape? What if I froze instead?

Freezing is a common response to being raped or sexually assaulted. Having this response is not something that a survivor should be ashamed of. We all think of “fight or flight,” but the human brain reacts to trauma in other ways. One way is to freeze. Freezing is a typical neurological (brain-based) response to detecting danger—think deer in the headlights. Fear circuitry in the brain can interfere with our ability to process and respond, leaving us frozen in place. If you did not “fight back” because you froze, or were afraid, or had been threatened, what your attacker did still counts as sexual assault or rape. For instance, some survivors do not fight back because the attacker threatened them, maybe even with a weapon. Other survivors freeze because the sexual assault was so shocking—like when the attacker was a trusted friend, doctor, or massage therapist. In either case, the survivor has a claim for rape or sexual assault. Traditional notions of rape “as seen on TV” show attackers holding victims down and desperate attempts to fight back by the survivor, but in the real world survivors regularly freeze in that moment instead. You are not alone, and you still have a claim for rape or sexual assault.

Under Georgia law, can you be sexually assaulted by someone you are in a relationship with?

Yes. In fact, Georgia law is crystal clear that being in a relationship or being married is not a defense to rape. If your significant other or spouse had sex with you without your consent, or touched you without your consent, you have a claim for rape or sexual assault against them.

Is there a difference between sexual assault and rape under Georgia law?

“Rape” and “sexual assault” can be used interchangeably in criminal or civil court. The Georgia code has two rape statutes, including:

  • O.C.G.A. § 16-6-1 (Rape)
  • O.C.G.A. § 16-6-3 (Statutory rape)

Rape means forced sex.  In the legal definition contained in Georgia’s official code, “rape” occurs where a person “has carnal knowledge” of either (1) “a female forcibly and against her will” or (2) a female who is less than ten years of age.” Carnal knowledge is “penetration of the female sex organ by the male sex organ.”  “Force” can mean many things. It can be something physical like being tied down or held down. Force can also be something emotional, like fear. Just because you were not tied down, or physically overwhelmed does not mean you were not forced. Force can be “reasonable apprehension of harm” – basically this means that if you show you were too scared to say no, you were “forced.” Georgia’s legal definition of “statutory rape” is “sexual intercourse with any person under the age of 16 years and not his or her spouse.” The penalty for this depends on how old the perpetrator (attacker) is. If they are 18 or younger, and no more than four years older than their victim, then the crime is a misdemeanor instead of a felony (punishable by no more than one year in jail). If they are 21 or older, then they may be imprisoned for between 10 and 20 years. Statutory rape can result in either criminal charges or civil claims or both. There are other criminal charges relating to sexual misconduct that do not involve “force” or “carnal knowledge.”  Those are:

  • O.C.G.A. § 16-6-4 (Child molestation)
  • O.C.G.A. § 16-6-5.1 (Sexual assault)
  • O.C.G.A. § 16-6-22.1 (Sexual battery)
  • O.C.G.A. § 16-6-22.2 (Aggravated sexual battery)

Each of these crimes, if proven, carry a minimum or maximum prison sentence.

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In criminal court, “Sexual Assault” is where someone with authority or control has sex with someone they are in charge of. For example, a teacher commits sexual assault when they engage in sexual contact with someone enrolled in their school, a hospital employee commits sexual assault when they engage in sexual contact with a patient of that hospital, a psychologist commits sexual assault when they engage in sexual contact with a patient, a pastor uses his influence over minors. In civil court, “Sexual Assault” is a broader term used in civil cases for all nonconsensual sexual touching. So “rape” is a sexual assault, but not all sexual assaults meet the legal definition of “rape.” Sexual assault claims in civil court are often referred to as “assault” and “battery” claims. “Assault” is the intentional causing of fear or apprehension of unauthorized physical contact. “Battery” goes beyond fear of contact – it is when the unauthorized physical contact actually occurs. This contact doesn’t have to be harmful. Contact may be insulting, unwanted, or humiliating instead. When deciding whether contact was unauthorized, courts use what the law calls a “reasonable person” standard. If a “reasonable person” would be harmed, insulted, humiliated, or not want that physical contact, it meets the legal standard.

Sexual Assault and Rape at the Spa – Massage Envy and Others

Massage Therapy & Sexual Assault: An Awful Combination

Spas and massage parlors have been in the news with increasing frequency because of sexual assaults happening there. By the end of 2017, more than 180 people were reporting that they were sexually assaulted at Massage Envy. Unwanted touching by a masseuse (or massage therapist) creates a claim for sexual assault. We have written a detailed article discussing sexual assaults by massage therapists.

If I have an ongoing criminal case involving sexual assault or rape, can I file a civil case?

Yes. Criminal courts and civil courts run independently of each other. One type of case does not have to be finished before the other begins. Both criminal and civil cases have time limits as to when they can be filed. These time limits are called “statutes of limitations.” In Georgia, the civil statute of limitations for assault and battery claims (such as sexual assault claims) is generally two years. However, the time limit can be extended in several situations. For instance, if the survivor was under eighteen at the time of the rape or sexual assault, then the two-year time limit does not start until the survivor turns eighteen (so the survivor would have until age 20 to file suit). Also, if the attacker was or could have been prosecuted in criminal court, the two-year clock generally does not start ticking until either the criminal prosecution of the attacker is finished, or six years have passed, whichever is shorter. For example, if John Doe raped Jane Doe on January 1, 2018, and was being prosecuted in criminal court, the two-year deadline for Jane to sue John in civil court would be paused until the criminal prosecution ended. Then she would have two years from the end of the criminal trial to file suit. See O.C.G.A. § 9-3-99; Harrison v. McAfee, 338 Ga. App. 393, 788 S.E.2d 872 (2016) (en banc). Please bear in mind that if your statute of limitations runs out (if the two-year deadline or extended deadline passes), you cannot successfully file a lawsuit. There are many factors that go into calculating the time you have to file suit, and the best way to be sure you know how long you have to file a civil suit is by talking about it with a lawyer.

Why do I need a Georgia civil lawyer if I already have a criminal lawyer?

This is important: if you have been the victim of a rape or sexual assault, the lawyer in charge of the criminal case against your attacker (the “prosecutor” or “solicitor”) is not your lawyer. Prosecutors work for the government, not for you, even though they are doing a job that may help you. Because they work for the government, the attorney-client privilege does not apply to conversations you have with them. The attorney-client privilege only applies between lawyers and their clients. This means that whatever you tell or share with a prosecutor is not privileged. It is not secret. Whatever you discuss may be shared with others. Civil lawyers, like us, do not work for the government, though we appreciate the work that prosecutors do. If we take on your case, then we are your lawyer, and whatever you tell us is subject to the attorney-client privilege. That means you have control over what information we share with others.

Civil court and criminal court provide different relief or “remedies.” In criminal court, a defendant could go to jail. In civil court, the jury typically decides whether to award money “damages.” So a criminal prosecutor is usually more concerned with what jail time they can get for the defendant, rather than focusing on the survivor. Civil lawyers, on the other hand, are focused on the survivor’s current and future needs, and will try to recover as much money damages as they can for the survivor. Civil and criminal court also have different burdens of proof.  The “burden of proof” is what we have to show in court to prove our case. In criminal court, the prosecutor’s burden of proof is “beyond a reasonable doubt.” Civil court has a less strict burden of proof – “by the preponderance of the evidence.” In criminal court, that means if the defense gives evidence that makes the jury have any reasonable doubt, they have to rule for the defendant. In civil court, there can be some doubt, so long as all of the evidence together makes it more likely than not that the rape or sexual assault occurred. In many rape and sexual assault cases, the defendant will get on the stand and testify that there was consent. When that happens, if there is no video or audio of the assault the prosecutor may not be able to meet their burden of proof. This is why a lot of survivors bring civil cases—to get the justice that they couldn’t in criminal court after their attackers lied on the stand. Some survivors will wait to see how the criminal case plays out first, but others go ahead with both civil and criminal cases at the same time. There are two main reasons not to wait for the criminal case to finish before filing a civil case. First, it allows civil lawyers to investigate and develop evidence for the case. Civil lawyers regularly find additional evidence that could help in the criminal case. Second, it saves time—instead of going through the entire criminal process and then starting over at the beginning with the civil process, your civil lawyers would already be advancing your civil case.

Is sexual assault the same thing as sexual harassment under Georgia law?

No, though they are related. Sexual harassment can escalate to sexual assault, but can also occur without a sexual assault. Sexual harassment is any harassment of a person because of that person’s sex that occurs in the workplace. Harassment may occur in the form of offensive remarks about a person’s sex. It could also be unwelcome sexual advances, requests for sexual favors, or other verbal remarks of a sexual nature, such as offensive remarks about one’s appearance. Sexual harassment can become sexual assault if the harasser’s words or actions put the victim in fear or apprehension of unauthorized physical contact. Unwanted touching or other sexual assaults that occur in the workplace are also types of sexual harassment. The harasser and the victim can be male, or female, or the same sex. The harasser can be a boss, a supervisor, a co-worker, a client, or a customer. Sexual harassment is a type of discrimination, and it is against the law. The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws about discrimination, including sexual harassment. Individuals subjected to sexual harassment at the office may have a claim for sex discrimination against their employer. Just like sexual assault, sexual harassment claims can also be brought in civil court against the harasser.

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