About one third of sexual assaults are reported to the police. of those less than half will be prosecuted. At the end of it all, only 3 out of every 100 perpetrators will ever spend a night in jail (RAINN). I would have liked to think that once a woman has the courage to report the crime, her experience is taken seriously. However, prosecutors shy away unless their is an overwhelming amount of evidence. Abusers do most of their abuse behind closed doors. Evidence is scarce, leaving many women without justice.

When it comes to prosecuting sexual assault cases, one factor sways a criminal or civil charge – it’s the burden of evidence required to secure a conviction. AS Annie Seifullah, put it, “Unfortunately these cases are hard criminally.  Because abusers do most of their abuse when no one is watching, the worst happens when no one is there.”

A reasonable assumption is often that it is the type of assault that matters. Was it a violent, clear-cut assault or a more complex and coercive one? However, when talking to annie (A LEGAL EXPERT, ADVOCATE, AND ONE OF MY ROLE MODELS) I learned it is more about the type of charge sought. 

Criminal vs. Civil Cases:

Criminal Cases: the burden of evidence for this charge is called beyond a reasonable doubt. In this scenario, a detective would investigate and determine if an attorney could bring a charge. Overall does all evidence prove without reasonable doubt? Because a conviction could result in jail time, criminal record, etc, there is a high standard in terms of evidence. 

Civil Cases: the burden of evidence for these cases is called the preponderance. No one is going to jail; these cases often end with an order of protection (aka a restraining order) or money compensation. Due to the lower stakes, this burden is lower than a criminal one. 

In simple terms, criminally the evidence needs to allude to as close to 100% certainty; on the contrary, civically “you need to show your story makes more sense than the defendant. Just a fraction higher. Think of this as 51%.” 

In a system where “any tiny doubt that the incident didn’t occur invalidates a criminal charge,” proving a case beyond a reasonable doubt is difficult. As Annie mentioned, “At that point, it is one word against another.” And again, because abuse often happens behind closed doors, eyewitnesses and explicit evidence is often scarce. 

“My client’s credible testimony will get them across in a civil context but rarely a criminal one because the burden is so high.”

“It’s less about the type of evidence and more about building a story.” Regardless of whether the case is criminal or civil, useful evidence includes: 

→ screenshots and digital exchanges

→ victim testimony

→ eyewitness accounts

→ anything sent to mutuals/friends that could be read as an admission (the first-person witness must go under oath to authenticate the evidence so it does not risk being dismissed as hearsay).

→ anything else that supports the survivor’s narrative credible

The Role of Prosecutors—and the Public

What can be done? One key issue is the unwillingness of prosecutors to take on a case that they might lose. “I just wish prosecutors would be more willing to take on cases even if they’re afraid they’ll lose,” Annie stated.

Historically, in Manhattan for example, district attorneys were notorious for turning a blind eye to these cases. The consequence? A culture where wealthy abusers could afford to escape consequences. Consequence? Predators like Harvey Weinstein and Jeffrey Epstein evading justice for years. Even if these cases rarely do translate to a charge, “[Annie wishes] there were more prosecutors willing to prosecute because it would send a message even if they lose.” The message: these crimes matter and survivors deserve to be heard. 

If your local district attorney consistently refuses to prosecute abusers, use your power. DAs are elected by the public. And part of the reason the Manhattan DA was elected was due to their promise to reform these systems. Continued public awareness CAN reform the justice system. As Annie mentioned, if officials are not prosecuting domestic violence and sexual assault cases; “We vote. We vote people out if they are not doing the things that keep people safe.”

Even if the worst happens behind closed doors, survivors can still hold the power with the support of the public. Holding these officials accountable is the key to ensuring these survivor’s get the justice they deserve wholeheartedly.