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.
