(Arguably, a civil suit was foreshadowed in early July when civil attorney Lin Wood joined the legal team.)
What does this new twist signify?
Using the civil courts to redress a criminal offense is nothing new. A "guilty" verdict in criminal court can establish liability in a civil suit, allowing a victim to recover damages such as medical expenses. (Because criminal and civil courts express different paradigms of law, bringing an accused before both is not double jeopardy (search).)
What is new is that feminist groups, like the National Organization for Women, are stressing the role of civil courts to address sexual abuse: specifically, rape. For example, The Listening Ear, a crisis center in Michigan, distributes a pamphlet entitled "Pressing Charges in Civil Court," which presents civil lawsuits as a possible substitute for pressing criminal charges.
Civil court offers advantages to rape "victims." It removes some legal protections from the accused and gives some legal advantages to the accuser.
The "victim" has more control in civil court. Because violating criminal law is viewed as an offense against the state, the state — not the "victim" — is always the plaintiff. Once charges are brought, the "victim" cannot decline to prosecute — although non-cooperation may terminate a case as a practical matter. For Bryant, this means that he and his accuser cannot reach a settlement that will end his criminal trial.
In civil court, the "victim" brings suit and receives direct monetary restitution, sometimes through an outside settlement. (Bryant's accuser has already received an estimated $17,000 to $20,000 from a Crime Victim's Compensation Board, but this payment is not part of the criminal proceeding.)
Thus, the first advantage of civil court is financial. It can be considerable. For example, O.J. Simpson's murder trial was followed by a civil suit in which the family of Ron Goldman — one of Simpson's alleged victims — received $8.5 million in compensatory damages.
The fact that Simpson was found de facto "guilty" — or, more accurately, liable — in civil court, and "not guilty" in criminal court, highlights another difference between the two systems. It is much easier for a "victim" to prevail in civil court.
In civil proceedings, there is no presumption of innocence for the accused. Liability is determined by a preponderance of the evidence (51 percent) rather than "beyond a reasonable doubt" (99 percent). A unanimous jury is not required; only nine out of 12 jurors need agree. And the standards of evidence are lower; for example, certain types of hearsay evidence are allowed.
The rationale is that the accused does not risk loss of liberty — only loss of money — and so, does not require rigorous protections. The lack of protection makes the accused more vulnerable.
The buzz about the civil lawsuit has fed speculation that the criminal case is too weak to be sustained. The timing also raises suspicions; mention of civil court arose after the criminal court decided to allow relevant evidence of the accuser's sexual history. According to Larry Pozner, former president of the National Association of Criminal Defense Lawyers, the ruling is so damaging to the prosecution that he "wonders if at long last the accuser will pull the plug on this case." After all, a "not guilty" criminal verdict could prejudice the civil suit.
In admitting sexual history, the judge removed a strong reason for the accused to avoid civil court. Namely, civil procedures allow previous sexual history. Now the criminal one does as well. The other disadvantages of civil court may have dissipated for Bryant's accuser:
— The civil suit will not put Bryant behind bars, but it is looking more likely that the criminal case won't either
— The civil suit could drag on, but the current criminal proceeding is also taking an unusually long time
— The "victim" must hire legal representation, but media-hungry attorneys might work on contingency
It is difficult to argue against a victim being compensated for real damages in civil court. Current awards may be unreasonably high, but this doesn't mean that awards per se are inappropriate.
It is easier to argue that substituting current civil procedures for criminal ones, especially for sexual assault, may produce injustice. In contractual disputes, for which civil law is ideally suited, there are usually documents for third parties to examine. By contrast, sexual assault often hinges on "he said/she said" scenarios that lend themselves to false accusations or extreme misinterpretations.
Civil penalties are non-trivial: loss of fortune, reputation and, perhaps, career. Many accused would undoubtedly prefer risking a restriction of their liberty, especially if it involved the opportunity to be publicly vindicated in criminal court.
Feminist groups advocate civil proceedings for sexual abuse because "victims" will win more often and with less evidence. But if civil verdicts are viewed as proof of criminal guilt, and if civil awards remain ruinously high, the accused may be destroyed as surely as by a criminal proceeding.
This seems on the very face of it to be unfair. It seems to be an end-run around having to really prove a case.
Wendy McElroy is the editor of ifeminists.com and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, "Liberty for Women: Freedom and Feminism in the 21st Century" (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.