These four pardons were all granted without advance warning to the families of the victims.  The pardons were granted on Friday, the victims were notified on Saturday, and the inmates were released on Sunday.  Governors are typically given complete discretion in granting pardons, without requiring input from any outside sources.

These pardons are an insult to many.  Needless to say, the victims now have to deal with a new set of issues.  Previously, they felt safe knowing that these killers were locked behind bars. Now, they must face the reality that the killers are free men.  The pardons are also an insult to the investigators, prosecutors, judges, and juries that worked hard to see that these inmates were brought to justice in the first place.

Perhaps it is time to abolish the pardon authority of our leaders.  It is unfair that the unchecked decision of a single person can undo the hard work of many.  Further, it is unfair and cowardly for someone to make this decision without consulting those who have been impacted the most, the crime victims themselves.

Read the official pardon documents here.

The real tragedy about this abuse is that several people had knowledge of it, but they never spoke up.  For instance, The Second Mile knew about suspected abuse in 1998. Despite this, they continued to give Sandusky one-on-one time with multiple minor boys.  By looking the other way, they helped facilitate the ongoing sexual abuse.  Also, they did not have an effective procedure for monitoring adult / child relationships that would have brought these actions to light sooner.

Penn State might also share the blame for this abuse.  Employees of the university had notice of questionable and inappropriate activity as early as 1998.  However, employees of Penn State failed to notify police about the situation.  By burying this matter, it allowed Sandusky to continue to lure young boys into vulnerable situations, including a specific instance of abuse which allegedly occurred in a Penn State locker room in 2002.

The victims of this sexual abuse need to seek both criminal and civil justice.  Obviously, a criminal conviction will lead to incarceration for Sandusky.  This will protect other children from future sexual abuse.

However, these sexual abuse victims also need to seek a financial recovery from third parties, such as The Second Mile and Penn State. This will provide them with funds for counseling and compensation for significant emotional abuse.

By looking the other way, these entities fostered an environment that allowed abuse to continue.   A civil lawsuit against these institutions will put other organizations on notice that they cannot simply turn a blind eye to the existence of improper behavior. Forcing these entities to financially deal with these situations will lead to better policies, which will protect other children in the future.

Strauss-Kahn was the chief of the International Monetary Fund who was charged with sexually assaulting a hotel maid while on a visit to Manhattan, New York.  Prosecutors filed the charge on May 18^th.  After further investigating the matter, the prosecution reversed course and dismissed all charges against Strauss-Kahn just 3 months later.  Prosecutors stated that, after acquiring new evidence, they were not convinced that a crime had been committed.  Victim advocates complained that this action was abandonment of the victim, and it would discourage future victims from filing complaints against influential parties.

Prior to this dismissal, the victim had filed a civil lawsuit against Strauss-Kahn, seeking damages for the sexual assault.  Despite the dismissal of the criminal case, the civil case remains active.  It can only be dismissed directly by the victim.

This case highlights a key difference between a criminal and a civil case.  In a criminal matter, the prosecuting attorney is responsible for the direction of the case.  Although they will consult with the victim, the ultimate decision on how to proceed rests with the prosecutor.  A civil case is different, in that the crime victim is the actual party to the case.  As such, the victim gets to decide the direction of the civil case.

Although Strauss-Kahn has escaped criminal prosecution, he is not off of the hook completely.  He still will be responsible for defending the civil case.  The crime victim will still be able to seek answers via discovery, and she will still be able to present her case to a jury.

1.  The differences between civil and criminal law;

2.  A civil case timeline;

3.  Explanation of damages;

4.  The importance of third party liability. 

Download a free electronic version here.  (If you would like us to mail you a printed copy, send an e-mail to cgaddie@missourivictimlaw.com)

If this right to silence extended to an accompanying civil case, it could create problems for crime victims.  Criminal defendants could essentially stonewall victims by asserting their Fifth Amendment right.  In refusing to testify, criminal defendants would deny crime victims important information about the civil claim.  This would be information that a regular civil plaintiff would normally be entitled to receive.

Fortunately, the Fifth Amendment is treated differently in the civil context.  Although criminal defendants can still assert their right not to testify, this action is not without negative consequences.  For instance, if a criminal defendant refuses to answer questions during the discovery phase of a civil case, the judge can prohibit that defendant from later testifying at the civil trial.  (You can imagine what a disadvantage this would be for the defendant.)

Additionally, the law allows negative inferences to be drawn from the fact that a defendant refuses to testify.  Judges and juries can infer from a defendant’s silence that, had they provided testimony, it would have been unfavorable to them.  Essentially, in a civil case, a defendant’s silence can be held against them.

Criminal defendants walk a fine line when it comes to testifying in civil cases.  If they choose to testify, anything they say can be used against them in the criminal matter.  They can remain silent, but the silence can significantly hurt their chances of success in the civil case.

Criminal cases are filed by the prosecuting attorney on behalf of the State of Missouri.  The victim is most often a primary witness for the prosecution, but they are not considered a true party to the case.  The prosecuting attorney is required to keep the victim advised about the status of the case, and quite often seeks the victim’s input.  However, the ultimate decision making authority about the direction of the criminal case rests with the prosecuting attorney.

On the other hand, a victim is an actual party in a civil case.  They are responsible for hiring the lawyer and initiating the civil action.  Further, in a civil action, the victim makes the specific decisions regarding the direction of the case, with the advice of their lawyer.  The decisions to be made by the victim might include: 1) whether or not to file a lawsuit, 2) who to file a lawsuit against, and 3) whether the case should be settled or a trial should be held.

The civil case and the criminal case are independent of each other.  As such, there is no particular order in which they must proceed.  They can even occur simultaneously.   Although the criminal prosecution often occurs shortly after the criminal event, it is sometimes delayed.  Further, it can often take several months for a criminal prosecution to be resolved.  These delays do not have to hinder the start of a recovery in civil court.

Further, a civil case can be pursued even if criminal prosecution does not occur.  Sometimes a prosecuting attorney does not believe that he or she has enough evidence to proceed with a criminal charge.  This does not stop the crime victim from seeking a civil recovery.  This condition can exist because the burden of proof in a criminal case is “beyond a reasonable doubt” and the burden of proof in a civil case is the lower “preponderance of the evidence.”

Additionally, civil cases can proceed even if the specific criminal actor is not apprehended.  For instance, imagine an individual that is assaulted in a convenience store parking lot.  Even if the person who commits the actual assault is never caught, the victim might still have a civil claim against the convenience store operator for providing inadequate security.

I recommend that crime victims call us soon after the criminal activity in order to determine the best strategy for their case.

For the next 10 weeks, I will begin a series of posts titled, “The Top 10 Things That Crime Victims Need to Know About Civil Law.”  Each week I will address one particular issue, and explain how it relates to crime victims.  This information will guide crime victims, victim advocates, and anyone else that deals with the consequences of crime.  (If you would like me to address a specific topic, send an e-mail to cgaddie@missourivictimlaw.com.)