Commentary Sexuality

West Virginia Sexting Law Likely to Harm Already-Victimized Girls

Amanda Marcotte

The outcome of the law is likely to be that girls who are already suffering from a public shaming will be charged with delinquency, all for sending a picture to a boy.

While I suspect most teen sexting is relatively harmless, most of us are rightly concerned about incidents in which naked pictures of teenagers get forwarded and distributed without their consent. In most cases, a girl shares a nude photo of herself with a boy (or man, in some cases) whom she trusts will behave appropriately with this vulnerable image, only to have him show it off to others, post it online, or otherwise try to shame her for it. In a couple of sad cases, the humiliated girl has even committed suicide. It’s a problem that needs fixing. Unfortunately, West Virginia’s approach—to outlaw sexting and charge those found “possessing, distributing or producing sexually inappropriate photos, videos or other media” with delinquency—is exactly the wrong way to go about this.

This law may be well-intentioned, but it will almost certainly serve mainly or even entirely to punish victims who are already enduring a public humiliation. After all, the only way that a “sext” will come to the government’s attention is if it’s being disseminated, usually without the person in the photograph’s permission. Private text messages that are kept private will, for obvious reasons, not draw legal attention.

I can confidently predict how the enforcement of this law will turn out most of the time: A girl will send a nude picture to a boy. He will forward it, publish it, and share it generally. Once it becomes known that the picture is out there, the girl, who is already suffering from a public shaming, will be charged with delinquency. The boy who originally forwarded the message may get charged, but in many or most cases, probably not. After all, it’s easier to prove that she was engaged in sexting, because of the image, than to bother to figure out who forwarded it first. They can’t charge everyone who shared the image, right? So she, the victim of this hateful behavior, will be the one punished. It’s tailor made for victim-blaming and abuse.

How do I know that’s how it will go down? Well, common sense should be good enough, but we also have actual real-world evidence. High schools have already experimented with punishing students for sexting, and the punishments often fall more heavily on the girl whose only crime was trusting too much, and not the boys who violated her trust. Jezebel reported in April about a teenage girl who sent a topless photo of herself to her male friends, and sure enough, she was the one who got expelled while the boys weren’t punished.

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The American Civil Liberties Union shared a similar story from 2010 in which the girls in the sexts were charged with child pornography, even though the photos didn’t show nudity:

Only the girls who appeared in the photos were threatened with child porn charges. If the DA did in fact regard these photos as pornographic, why not file distribution charges against the boys? A clue may be found in their argument before the 3rd Circuit. In narrating the case, their attorney explained how, after the girls were photographed, “high school boys did as high school boys will do, and traded the photos among themselves.”

We have no reason to believe this law won’t be handled in a similar fashion, where girls are punished for creating sexts, but boys aren’t for sharing them. You could try to justify this by saying that the fear of legal consequences might make girls a little more cautious about who they trust with nude images of themselves, but that argument falls apart when you examine it at all. After all, the girls already know the risks of being humiliated if the image gets out there. If they didn’t already have misplaced trust in the recipients of the nude images, they wouldn’t be sending them. So adding more risks won’t likely change the calculation there.

The problem here is that adults all too frequently focus on the “sex” part of sexting, when the real issue is not sex, but misogyny and a violation of trust. It’s only natural that girls will be tempted to use digital technology to take nude photographs. Sexual experimentation is a normal part of adolescence, and human beings have used every kind of media technology throughout history to make erotic representations. It’s just what we do. The issue here is not that girls are experimenting with sex, but that so many boys think so little of girls’ humanity that they would subject girls to a massive public shaming just for the hell of it.

To be clear, most boys are not engaging in this shaming behavior. Preliminary research shows that only 11 to 12 percent of boys have shared private images with people who weren’t meant to see them. Still, that number is alarmingly high, suggesting that this kind of disrespect and misogynist belief that a woman deserves to be abused for daring be sexual is really widespread. This is the problem that needs to be dealt with. Boys need to be explicitly taught to respect girls’ privacy, and if they violate trust someone put in them to keep private images private, then they are the ones who need to be punished, not the girls.

After the Steubenville case, where boys filmed and photographed themselves raping a girl, you would think people would understand what the problem is: So many boys feel not only that it’s OK to humiliate and bully girls in this way, but that it makes them a hero in the eyes of their friends. Unfortunately, our massive cultural hang-ups about female sexuality make it hard to see this. Which is why laws like this one in West Virginia will absolutely be used to abuse already-victimized girls, while not doing anything productive to prevent the real problem, people forwarding sexual messages without permission.

Culture & Conversation Human Rights

‘I’m Not Slow’: Black Girls Tell Their Experiences of School ‘Pushout’ in New Book

Cynthia Greenlee

If Dr. Monique W. Morris makes anything plain in this book, it's this: Black girls shouldn’t have to rely on their own resilience to stay in school.

This piece is published in collaboration with Echoing Ida, a Forward Together project.

For Black girls, the very schools charged with educating them reinforce and reproduce a dangerous, though often invisible, form of racial and gendered inequality, explains Dr. Monique W. Morris in her new book, Pushout: The Criminalization of Black Girls in Schools.

Among the young girls the reader meets in Pushout, there’s “Mia” (not her real name, as Morris used pseudonyms for all girls interviewed). Mia talked about how a “juvie” teacher assumed that when she asked for other tasks in class, that the girl didn’t complete her work. But Mia told Morris that she had raced through the assignment. Said Mia: “Then I’m like, ‘Can I write or draw?’ Something? I mean, it’s a whole hour to go.’ She was like, ‘No, you can’t do anything. You’re always getting done before the whole class. You know what, get out.’ …. I’m like, ‘Because I do my work, I’m actually trying to do my work now, and now you want me to get out? Hella shit.’”

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What Mia wanted was positive recognition. Instead, she got written up.

Though Morris did not coin the term, the word “pushout” is an intentional reframing of the word “dropout.” It acknowledges that young people leaving school do so for a variety of reasons, many not of their own making. Poverty demands they work. Predatory “boyfriends” induct underage girls into selling sex with promises of love, clothes, and cash. Chaotic schools can make a motivated student dread going to class. LGBTQ teens who don’t conform to gender norms get bullied by peers and labeled “distracting” by adults.

The reasons abound, but each year, millions of U.S. students face expulsion or suspension. According to research from the Department of Education Civil Rights Data Collection, seven million of the almost 50 million U.S. students faced in-school or out-of-school suspension in 2011-2012, the most recent year for which data is available. About 130,000 were expelled.

An education scholar and co-founder of the National Black Women’s Justice Institute, Morris focuses on implicit bias—a term from experimental psychology for the unconscious ideas that influence how we think and interact. Implicit bias can affect when police officers shoot, how managers making hiring decisions, and as Morris demonstrates with devastating clarity, when educators suspend students.

Teachers and administrators often bring racialized and gendered assumptions about what it means to be a “good” girl to the classroom, Morris explains in her book. Notions of appropriate girlhood—nonsexualized though heterosexual, compliant, and quiet—are often the opposite of historical stereotypes that have cast Black girls as sexually precocious, uncooperative, and disrespectful. If a person believes the idea that every Black girl is a Jezebel-in-training or hates school, it’s hard for them to see beyond that.

And, in many cases, affected girls understand this.

Largely absent throughout much of Pushout are Black girls’ parents or guardians. Morris departs from the long tradition of punditry and social science that churns out study after study about what’s “wrong” with this mythical, monolithic, and immutable Black family. It’s a refreshing absence that will make some readers ask about parental involvement. That’s a fair question—but an easy and familiar default that inevitably veers into talk about personal responsibility without taking structural inequality into account.

Interviewing almost 40 pushed-out girls in urban areas, including Mia, Morris uses their own words to assert that Black girls are worth study, attention, and equity in education.

“Shai” from Chicago noted different responses to her and white peers that she calls “little Suzie”: “When little Suzie gets the question wrong, it’s like, ‘Aww, you got the question wrong.’ It’s funny.” In contrast, when Shai made an error, “it’s like, ‘Oh, she’s slow.’ … I get so angry, number one, because I already told them I’m bad at math. Number two, because I’m not slow.”

Girls can be tossed from schools for fighting or so-called “status offenses”—actions such as skipping school that are punishable only for a certain class (in this case, minors).

But pushout occurs all too often when Black girls are labeled unruly. They talk too loud and too often, according to a teacher. Maybe a girl is wearing the “wrong” clothes to school (which might have to do as much with fashion, size, gender identity, or access to the right clothes as a desire to thumb a nose at authority). An authority figure says they have an “attitude.”

On any given day, girls of all races push boundaries on their way to adulthood. But white girls’ behaviors, interviewees said, are seen as temporary actions, not inevitable or part of their identities.

In high school, I too was guilty of these bogus offenses: cursing, wearing my older sisters’ too-grown-for-me clothes, occasionally sassing teachers. On the first day of my senior year of high school, my history teacher stopped me at the door and said, “I know you’re used to getting A’s. But that won’t happen in my class.” In the subsequent yearlong tug of war, I blatantly ignored his lectures—uninspired regurgitations of the textbook—by reading dusty classroom encyclopedias. He’d ask, “Why don’t you listen?” My response: “Why don’t you make it interesting?”

I was a “good kid”: straight A’s and well-rounded, with professional parents and from a neighborhood where more kids were college-bound than not. If I failed, my parents and other teachers at my 99 percent Black high school would cry foul. They expected me to succeed, just as my teacher—who sometimes mused aloud about his dreams to work at a high-performing school—expected me to struggle under his sad, uncreative teaching.

As Morris points out through this book, talking back, simply asking genuine questions, or expecting a teacher to teach can set a girl on a short path to school separation. She could face suspension, expulsion, being moved to an alternative school for troubled youth, house arrest, and even detention or incarceration in juvenile hall (and sometimes adult corrections facilities).

Department of Education statistics from 2011 show that Black girls are six times more likely than white girls to be suspended, even higher than the disparity between Black boys and their white counterparts.

Pushout can have long-term consequences. As Morris points out, many girls struggle to return to school, and others land in the juvenile justice system due to an incident that began in a place of learning. Today, Black girls make up the fastest growing population in the juvenile justice system.

Concerns about Black girls and school discipline have not risen as quickly as the statistics, though groups such as the African American Policy Forum and many Black women scholar-activists are persistently sounding the alarm. Otherwise, it’s a quiet crisis silenced by Akeelah and the Bee logic that Black families don’t value education and are continually falling down on their most important job: raising well-adjusted, healthy children. Or it’s muffled by a comfortable patriarchy that, whenever attention focuses on Black children in education, centers on Black boys like the White House’s My Brother’s Keeper initiative.

While Morris sounds the alarm that Black girls experience different racial and gender biases, she writes compellingly about the persistence of segregation after legal segregation supposedly ended. There are many segregations described in Pushout: the segregation of higher-performing students from those considered at risk in almost every school in the nation; the separation of “troubled” girls in juvenile facilities; and the concentration of Black and brown children in schools with few whites and few resources. Morris’ account raises the question of whether school demographics make a difference in this era of school resegregation. If teachers, administrators, and the broader society is disinterested in schools where students of color predominate, the picture doesn’t look much better for Black girls in majority-white schools.

I should note that Pushout largely focuses on urban girls in cities such as Chicago, Milwaukee, and San Francisco. What happens to girls in the rural South? Where there may be one high school in a county, alternative schools are rarely an option; if they are options, they may be in an adjacent county or farther, separating detained youth from their family and support network.

Despite this omission, Pushout pushes us to think about different kinds of personal, professional, and social responsibility. “Implicit bias” may sound like a more benign cousin to racism or “racism light” (and to be clear, implicit bias is not merely about race or gender, and it’s not confined to any one race or ethnicity).

If we accept that implicit bias lies at the root of pushout, how do we root out the bias at the levels of the self, the individual teacher, the school, and the educational and criminal justice systems? In a final addendum to the book, Morris points to two models: positive behavioral intervention systems (an approach that many educational institutions use to modify behavior and increase positive feedback) and restorative justice, which stresses communication and healing between the person who committed an offense and those affected. In the right circumstances, each approach can lead to change.

If Morris makes anything plain, it’s this: Black girls shouldn’t have to rely on their own resilience to stay in school. We need a sophisticated toolbox with multiple programs that doesn’t blame low-performing schools for their problems, that invests in Black girls specifically, and that takes aim at implicit bias.

But that’s easier said than done. We can spot the people wearing Klan hoods at Trump rallies, but implicit bias is a sneakier opponent that looks like and dresses like us.

Investigations Violence

Victims of Rape and Sexual Assault, Failed by Criminal Justice System, Increasingly Seek Civil Remedies

Sofia Resnick

Unlike criminal trials, which require the prosecution to prove the defendant’s guilt “beyond a reasonable doubt,” civil trials have a much lower bar, requiring only that a plaintiff persuade a judge or jury that it is more likely than not that the events occurred.

This article contains graphic descriptions of sexual assault.

Alfredo Simón, a former pitcher for the Detroit Tigers who is now a free agent, is big for a baseball player.

The 34-year-old stands 6 feet 6 inches tall and weighs 265 pounds, according to his official stats. Simón’s stature may be imposing on the field, but it seems even more so when reading through a civil complaint lodged in 2014 that accuses him of rape.

According to his accuser, the assault occurred when Simón was in Washington, D.C., playing with his old team, the Cincinnati Reds, in a game against the Washington Nationals. The 29-year-old woman, who in court documents is named Jane Doe, says she met Simón at a club, where she consumed several drinks and became intoxicated. Doe left with Simón in the early morning hours of April 28, 2013, and they started making out in his hotel room.

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But then things turned.

Simón, she says, held her down despite her resistance, and anally raped her. Each time she tried to flee, she says, he would push her back onto the bed. Doe says he eventually yanked her by her hair and ejaculated in her face.

A forensic nurse examiner recorded Doe’s injuries in the sexual assault exam she took at the hospital later that day. Four days later, Doe reported the assault to police. According to the court documents, the rape kit detailed vaginal and anal abrasions and anal tears—injuries that, forensic medical experts would later testify in the civil case, corroborated her story. These injuries were not, however, recorded in photographs. Doe declined the nurse’s offer to snap images of her injuries, perhaps not understanding their potential value in bolstering her version of events.

Instead, an image that did make it into Doe’s police file was a photocopy of her cell phone exchange with the friend she had gone out with that night. Doe told her friend she was leaving the club to go “fuck the baseball player.” In her initial interview with police, Doe explained that she had intended to have sex with Simón. But, as noted in her civil complaint, she withdrew her consent once Simón “started to get rough with her.”

Police did not interview Simón, according to court records.

Ultimately, the evidence gathered wasn’t enough for the U.S. Attorney’s Office for the District of Columbia, which prosecutes crimes that occur in D.C. The prosecutors presented this case to a grand jury, but notes from Doe’s police file indicate it was the U.S. Attorney’s Office that made the decision not to file charges against Simón, citing “insufficient evidence” and “good defense.”

Historically, that would have been the end of the matter, at least from the defendant’s perspective.

But Doe did not accept the state’s view as the final say on her case. Instead, she filed a civil lawsuit against Simón, claiming $10 million in punitive damages for assault, battery, and intentional infliction of emotional distress, and $5 million to compensate her for medical expenses and lost wages. The case ultimately settled for a fraction of that amount—$150,000, Simón’s attorneys told USA Today—and Simón did not admit any wrongdoing.

William Miller, a spokesperson for the U.S. Attorney’s Office for D.C., would not comment on Doe’s case. “We are legally barred from providing information about confidential grand jury proceedings,” he said in an email.

Legal experts told Rewire that by suing her alleged attacker in civil court, Jane Doe joined the ranks of a growing movement in the field of sexual assault.

Though there is no comprehensive national database that tracks the number of civil cases brought against alleged perpetrators of sexual assault, anecdotal evidence suggests a trend in the United States for victims to seek civil redress.

Every year, thousands of cases involving allegations of sexual assault are abandoned in the United States due to a range of reasons. These include lackluster police investigations, lack of forensic evidence, a victim’s unwillingness to testify, and, according to a recent White House report, because “law enforcement officers and prosecutors are not fully trained on the nature of these crimes or how best to investigate and prosecute them.”

Indeed, rape is notoriously difficult to prosecute and harder to prove. Even after decades of criminal justice reform and dedicated efforts from survivors and advocates, prosecutors are generally reluctant to go after alleged persecutors aggressively, often fearing they won’t win a conviction. Trials can also be traumatic for victims, who frequently face juries biased by cultural assumptions about rape.

“We [in society] generally don’t second-guess people who say that they were burglarized or say that their car was stolen or who say that they were assaulted, but we absolutely second-guess people that claim that they were sexually assaulted,” former special victims prosecutor Roger Canaff told Rewire in a phone interview. “We either are skeptical of the truth of the allegation or we look to blame that person.”

Unlike criminal trials, which require the prosecution to prove the defendant’s guilt “beyond a reasonable doubt,” civil trials have a much lower bar, requiring only that a plaintiff persuade a judge or jury that it is more likely than not that the events occurred.

For many victims, it is easy to see the appeal of choosing a venue where they are at least held to a more attainable burden of proof than in a criminal court. Sometimes they file a civil suit in addition to pursuing criminal charges, or they only make a civil complaint.

Civil rights attorney Gloria Allred, whose Los Angeles-based firm has specialized in representing women who have been victims of various types of sexual abuse and harassment, says she is seeing increasing numbers of women consider civil remedies as a form of justice after they have been sexually attacked.

“More and more, I think victims are very seriously considering the civil option, because it’s empowering,” Allred told Rewire in a phone interview. “You’re moving from being a victim to a survivor to a fighter for change.”

This shift in mentality is especially apparent in the civil claims against Bill Cosby, who has become the face of one of the most high-profile cases of sexual assault allegations in the past decade. Allred’s firm—Allred, Maroko & Goldberg—represents about half of the nearly 60 women who have so far come forward with claims, reaching as far back as the ’60s, against the man formerly known as “America’s Dad.” Coverage of the claims against Cosby has intensified over the past two years, but the fact remains that the fallen Hollywood star has yet to serve time for any of the allegations against him. Cosby faced his first criminal charges in one of these cases only very recently. Prosecutors in Pennsylvania charged him with sexual assault in late December for allegedly drugging and sexually assaulting a woman in 2004.

For his accusers, Allred says civil court offers women another opportunity for justice. And she says the civil route is empowering because, unlike criminal prosecutions where the state is in charge, civil cases enable victims to decide whether and how to proceed in their case.

“It’s the case of the victim, not the case of the people of that state,” Allred said. “As [people] see women standing up and not being afraid to fight back, it does have a ripple effect, and it does inspire other survivors to think, ‘Well, if she can do it, maybe I can do it, too.’”

Suing to Change the System

The trend of rape-related civil lawsuits has been building over time, as University of Arizona law professor Ellen Bublick documented in 2006. In recent years, increased recoveries from plaintiffs have stemmed from sexual abuse lawsuits against Catholic priests and on college campuses, with settlements for rape-related lawsuits often averaging half a million dollars.

Rewire’s review of dozens of federal civil lawsuits involving sexual assault filed since 2012—available in public court databases and the National Crime Victim Bar Association’s civil case database—indicate that outside of a handful of deep-pocketed athletes and celebrities, most sexual assault survivors are seeking damages from third parties. The trend appears to be especially apparent with complainants at schools and in institutions, particularly correctional facilities, where prisoners are vulnerable to sexual assaults at the hands of prison guards and fellow inmates, and often have little recourse outside of civil redress.

Perhaps the most prominent use of civil laws to win justice for sexual assault victims has been by college students, who have forced universities to take campus sexual assault more seriously via cases filed under a 1972 civil rights law known as Title IX. The law requires educational institutions to take proactive action to ensure that students are not subject to sexual discrimination, including rape or other forms of sexual assault, such as harassment and sexual touching—or groping—that falls short of penetration.

Over the past few decades, survivors and advocates have leveraged the law’s requirements in order to build awareness of the problem of assaults on college campuses and in public high schools. A glowing reception at the Sundance Film Festival of the documentary The Hunting Ground, about on-campus rape, has only propelled momentum for solutions to combat attacks at universities.

And student advocates are explicit about the advantages that Title IX can have over criminal prosecutions.

The group Know Your IX, started in 2013 by a group of sexual assault survivors and their supporters, explains on its website that “many victims of sexual violence don’t want to turn to the criminal justice system.”

The group states: “[Victims] may fear skepticism and abuse from police, prosecutors, or juries; they may not want to go through the ordeal of a long trial; they may fear retaliation from their assailant, who will most likely not end up prosecuted, let alone convicted; and they may be hesitant to send their assailants to prison. But even survivors who do report to the police are often abandoned by the system.”

By contrast, Title IX requires schools to investigate every report of sexual assault. And as with all other civil claims, the victim must prove that it is more likely than not that the alleged assault occurred, rather than that the crime occurred “beyond a reasonable doubt.”

Like Title IX activists seeking cultural change in the way institutions manage sexual assault cases, some victims have used a similar approach to spur action on the processing of rape kits.

Between 2012 and 2014, seven anonymous women from Harvey, Illinois, sued the Chicago suburb for the county’s failure to process and test rape kits that had been collected after they reported rapes between 1999 and 2008.

Like many jurisdictions in the United States, Harvey’s police had not begun testing the kits, even though they contained evidence collected from victims who had endured forensic exams that often last hours and can be invasive and distressing.

One of the victims, known as Jane Doe I, first reported being raped by her stepfather in 1997, when she was 11 years old. She submitted to a rape kit exam, which found semen in her vagina.

According to court records, Doe I’s mother reunited with the stepfather, Robert Buchanan, early into the police investigation, and asked her daughter to blame the assault on a schoolmate. Doe I recanted, as is common in sexual assault cases involving minors and family members, and police closed the investigation without attempting to match the DNA sample to Buchanan or to conduct further investigation, according to the complaint and subsequent court records.

In the civil case, Doe I testified that Buchanan went on to assault her for several years. She estimated that he raped her more than 100 times between 1998 and 2004, but her previous experience deterred her from reporting the crimes to police. Police tested her rape kit in 2007 and found a match to Buchanan’s DNA. City attorneys finally convicted Buchanan of sexually assaulting a minor in 2012 and sentenced him to six years in prison.

The City of Harvey awarded Jane Doe I $1.2 million and awarded the remaining six plaintiffs a combined $241,250, according to the Chicago Tribune. Together, these women, many of whom were minors at the time of their assaults, filed a total of three class action lawsuits that centered in part on the county’s failing to process or preserve more than 200 rape kits. Cook County prosecutors discovered these abandoned kits after raiding Harvey Police Department headquarters. Of these kits, only 50 were deemed viable for testing—including those of the anonymous plaintiffs in these cases—and led to charges against 14 individuals.

Monetary Justice

Toward the end of 2014, Mattie Bright desperately searched for a new high school for her daughter.

In November 2014, Bright’s then-15-year-old said three boys raped her in the middle of the school day in an abandoned classroom at Rosa Fort High School, in rural Tunica, Mississippi. Though police apprehended the alleged perpetrators, they returned to school two days later. One of the boys continued to ride the same bus as Bright’s daughter for months.

The criminal case is still pending, but last summer Bright sued the Tunica County School District in civil court, seeking damages to compensate her daughter’s psychological and emotional distress. Tunica is a rural town, and Bright cannot afford the hefty tuition of an all-girls private school, one of the closer options, said Stephanie Morris, the civil attorney representing Bright and her daughter.

The costs associated with this traumatic event continue to swell, Morris told Rewire.

“She has been severely depressed and having chest pains,” she said, of Bright’s daughter. “She needs counseling, extensive counseling. Quite naturally, this is something that affects women for years and years to come. Some people need counseling for the rest of their lives.”

While many states do offer some form of compensation to victims of violent crimes following a criminal conviction, they tend to only cover a limited range of expenses.

However, civil lawsuits allow victims to fight for compensation for the full range of their injuries—medical and psychological—and in that way, these suits can better reflect the true damage inflicted by rape and sexual assault.

According to the complaint Bright filed in August, she is suing the Tunica County School District and school officials for not taking proper action after the alleged rape occurred and for acting indifferently to the verbal and online sexual harassment her daughter allegedly experienced following the assault. The complaint claims that only when local media began reporting on the alleged attack four months later did the school take any independent action, firing two teachers and expelling the students implicated in the attack.

Katherine Kerby, the attorney representing the Tunica County School District and other school officials, declined to comment on the case.

Bright is also seeking punitive damages, as well as a requirement that the school district implement steps to prevent sex-based discrimination and harassment and to fully investigate these incidents as they occur. The amount of damages sought is unspecified.

“The school district was so indifferent to what had happened to this child,” Morris said. “So, punitive damages would be appropriate just to deter them from this type of response, or non-response, in the future.”

Entrenching Inequalities

While the civil route offers some advantages, legal experts warn that it cannot take the place of robust criminal prosecution. Not only does it fail to remove dangerous individuals from society, but it also only works against defendants or institutions with deep pockets, a reality that excludes the majority of sexual assault cases.

After all, civil lawsuits are only an option for those whose perpetrators happen to have enough money to make them worth suing, a glaring inequality that lawyers and experts say will limit the extent to which civil action can be used to combat sexual assault.

University of Oregon law professor Tom Lininger in his 2008 Duke Law Journal article “Is It Wrong to Sue for Rape?” argues that lower-income defendants are more likely to serve time than rich defendants, who are more likely to pay for their crimes in civil courts.

Allred says that inequality is simply an unfortunate reality of an imperfect system.

“As the old saying goes, ‘You can’t get blood out of a stone,’” she said. “You know, is it worth it to spend hundreds of hours in a civil lawsuit against a perpetrator who has no assets? Where is the justice in the end?”

For LW, a resident of Washington, D.C., the fact that her alleged attacker did not have substantial assets was just one of the factors that ruled out civil proceedings in her case.

In an interview with Rewire, LW, who asked to be identified by her initials, said she was drugged and raped by a man she met at a concert in October 2012. She said the man, a friend of a friend, offered her a vodka and Red Bull, which, she said, knocked her out almost immediately.

LW said she awoke the next morning to a bed covered in vomit and blood, faded memories, and the realization that she was no longer a virgin. LW was convinced she had a solid case, a prime piece of evidence being that her rape kit matched the offender’s semen.

LW’s victims’ rights attorney, Bridgette Stumpf, confirmed the facts LW laid out about her case with Rewire but said she could not reveal any privileged information about her client’s case. Stumpf is the co-founder and co-executive director of the Network for Victim Recovery of DC, a nonprofit that since 2012 has offered free legal, case-management, and advocacy services to all victims of crimes in the District.

LW said the U.S. Attorney’s Office told her in July 2014 that her case was not strong enough to go trial. Months later, after filing a Freedom of Information Act request for LW’s police file, Stumpf and LW learned that her alleged rapist had changed his story. Initially, he denied raping LW and claimed he had simply brought her home. But when told his semen was found in a rape kit, LW said, he shifted his story, claiming they had had consensual sex. The U.S. Attorney’s Office declined to comment on LW’s case.

LW seriously considered filing a civil lawsuit against the alleged attacker but ultimately decided against it.

“I decided it wasn’t for me,” LW said in a recent email. “It may seem that civil suits are ‘easier’ to win and are better at getting justice, but that comes with a price tag. The cases can be dragged out for a long time, the victim is put through intense questioning, sometimes even psych evals, and you have to re-live the whole experience. Plus, in a civil case, it is all about punitive damages. Most perpetrators don’t have money to pay to the victim, let alone anything else that you could sue for.”

And on top of that, even a successful civil suit would have failed to deliver the results LW said she most wanted. LW, like other rape survivors who spoke to Rewire, believes her alleged attacker has likely assaulted other women, or will again. LW is not alone in this thinking. Sexual assault researchers have found that many rapists, including so-called date or acquaintance rapists, are repeat offenders.

“For me, I realized that what I wanted most was for my perpetrator to face criminal charges,” she said. “I wanted him to get jail time and be registered as a sex offender, and have his DNA in CODIS [the FBI’s national criminal database]. The statute in DC for criminal charges in rape cases is 15 years. I have hope that one day, my perpetrator will face criminal charges for the rapes he has committed, but civil charges wouldn’t help me sleep at night.”