(UPDATED) Jeff Herman Weighs in on Harvey Weinstein and Civil Court Litigation

His Side, Her Side, and the Truth

Harvey Weinstein. The fact that he could (and likely will) walk away from prison after allegations of sexual assault, sexual harassment, and rape makes me sick. In criminal court, prosecutors must prove beyond reasonable doubt that a sex crime did occur, and that can be very difficult. Across the country, but mainly in New York where most of Weinstein’s incidents took place, the prosecution has an uphill battle because the burden of proof is very high in these kinds of “he-said-she-said” cases.

But in the American justice system, there are two distinct ways that claims are brought before the courts: through civil law and criminal law. Most people are aware that sexual assault perpetrators can be held accountable in criminal courts. However, perpetrators can also be made accountable for their actions in civil court.

And that’s what happening today. In a recent opinion out of the Southern District of New York, the federal court judge paved a way for my client, Kadian Noble, one of Weinstein’s many victims, to seek the justice she deserves under Trafficking Victims Protections Act. This civil action would allow Ms. Noble to claim money damages for her injuries. To the best of my knowledge, this is a first and historic victory for sexual abuse survivors. To better understand the impact, let’s explore how this case fits in the criminal and civil context.

The criminal case. A criminal sexual assault case is handled as a crime against the state and brought to court by the state rather than by the accuser. Therefore, the accuser rarely has a say in the direction of the case, and instead only appears as a witness for the prosecution. The accuser cannot control the direction of the case or veto any settlement negotiations with the accused.

As with most penal matters, the primary purpose of a criminal sexual assault case is to determine the guilt or innocence of the defendant of a particular crime, and the prosecution must prove “beyond a reasonable doubt” that the defendant is guilty. The defendant is presumed innocent until proven guilty, and the state has the burden of proof that the defendant is guilty.

As to money damages, the sexual assault defendant in criminal court can be ordered to pay the accuser, but only to compensate for financial costs incurred by the accuser. In other words, there is no way to measure medical costs, pain and suffering, psychological treatment, emotional rehabilitation, and damages to relationship’s. If a defendant is found guilty, outcomes can include incarceration or probation. If a person is found guilty of a sex-related crime in criminal court, it is virtually impossible to prove during a civil case based on the same incidents that no damages occurred. This is good news for a prospective civil plaintiff. But if a defendant is found innocent of the crime, he or she can’t be tried again for the same crime in criminal court. The civil system is the only remaining recourse.

So because of the way the criminal system works, civil litigation is often the only way a sex-abuse victim can have justice. While a prosecutor must prove her case beyond a “reasonable doubt,” a plaintiff in a civil suit has a much lower burden. This “preponderance of evidence” standard means that the evidence is just barely greater than 50%.

The civil case. In a civil case, most often the institution employing the perpetrator is sued for negligence, or doing something (or not doing something) that allowed a lady to be sexually abused. The accuser may also sue formally for charges such as assault, battery, intentional infliction of emotional distress, or false imprisonment.

While laws vary state-by-state, in general, when courts consider a civil action, they look to whether a crime was foreseeable or reasonably foreseeable such that the institution knew or should have known that the abuser was dangerous. A plaintiff can hold an assaulter directly responsible for the pain that they have caused, and a survivor can receive compensation for harm done by the accused. A plaintiff can also hold other negligent parties accountable, such as schools or employers that should have kept him or her safe. And, as added fortunate, a plaintiff can make an impact for future cases brought on by other men and women traumatized by sexual misconduct.

If a civil sexual assault trial results in confirmation of liability of the accused, he or she may have to pay the accuser and/or their family damages, including legal fees, compensation for medical expenses, psychological damage, damage to relationships, lost wages, and so on, far more than that which would be available at a criminal trial.

Civil sexual assault cases can be easier to prosecute than criminal cases, in some ways, because sexual assault attorneys in civil cases are required to prove only a preponderance of the evidence, as discussed above. For the same reason, sexual assault cases in civil court can be more difficult to defend. When an accused is wealthy or famous, like Harvey Weinstein, accusers often are especially determined to reach a settlement or ask for court-ordered damages because the defendant has the resources to pay them. This and other factors can put many accused at risk for false accusations, which may be difficult to disprove. For example, there are seventy women who have accused Weinstein of deplorable conduct. There only needs to be one which is patently false to cast doubt on the validity of the other women.

But perhaps most importantly for cases involving the likes of Harvey Weinstein, a sexual assault defendant can be tried in civil court by an accuser even if a criminal court declared the defendant not guilty of a crime, and an accused person can be charged criminally regardless of the outcome of a civil case. Civil cases will not result in a criminal record.

The Noble lawsuit is a bellwether case in this area of law. Last November, I helped aspiring British actress Kadian Noble sue Harvey Weinstein, his brother Bob Weinstein, and The Weinstein Company injuries arising out of an alleged sexual assault in Cannes, France that took place in February 2014. It is now well known that Harvey recruits, solicits and entices young female actresses with promises of film roles and other financially beneficial entertainment projects. In this case, I filed civil suit under 18 U.S.C. Sections 1591 and 1595, the federals sex trafficking statutes. Weinstein used the promise of a file role and other benefits to lure Ms. Noble into her hotel room and, despite her protests, took advantage of her sexually. No rule ever materialized.

In denying a motion to dismiss Harvey (his brother Bob was let go from the case), the judge confirmed that this would be the first instance in which a plaintiff asked for the Trafficking Victims Protections Act to be applied to conduct like that alleged in the lawsuit: “While the instant case is not an archetypal sex trafficking action, the allegations plausibly establish that (Harvey’s) 2014 conduct in Cannes, France, violated (federal law).” Things are quiet with The Weinstein Company because they are involved in Chapter 11 bankruptcy proceedings, and there is an automatic stay again all litigation against them, including Ms. Noble’s case.

It’s hard for to comment any further beyond what’s in the court documents because the case is ongoing. Nevertheless, my team and I thrilled that the district court judge made the right decisions by allowing the case against Harvey and his company to proceed to a jury trial. This really is a turning point in my area of practice, and I’m honored I can play a small role in Ms. Noble’s larger success stories. Because as it is in any case — whether it be against a famous Hollywood mogul or a local office manager — sexual assault is a serious charge with complex issues that requires the knowledge and experience of dedicated sexual assault attorneys who know the nuances of such cases and can provide skillful defenses that protect the rights of the accused. I’m glad to see that these issues are becoming news of national importance, but it still pains me to see that it’s due to the pain and suffering of some brave and courageous women who have chosen to speak out.

Jeff Herman is a nationally recognized trial lawyer and advocate for survivors of rape, sexual abuse and sexual exploitation. His law firm, Herman Law, is dedicated to helping victims of horrible crimes heal the wounds of their abuse by empowering them through the legal process. Over his career he has represented one thousand brave men, women and children.

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