The Time for Change is Now: Using Civil Legal Remedies to End Sexual Violence in Louisiana

October 28, 2015

By Brittanie Wagnon, Senior Editor

Introduction

One in six women are rape or attempted rape survivors.[1] At the same time, an estimated 68% of sexual assaults go unreported,[2] making sexual assault the most underreported crime.[3] Louisiana has recently taken a stand against sexual violence. In the newly passed Protection for Victims of Sexual Assault Act, the legislature declared, “sexual assault is a major public health problem and a violation of human rights.”[4] The legislature further declared: “The ripple effect of sexual assault threatens the peace, order, health, safety, and general welfare of the state and its residents.”[5] Because of the prevalence of sexual assault and the strong public policy in Louisiana against such a heinous act, an attorney must know all of the possible available remedies in Louisiana for survivors to fulfill the legislative intent.

I. Public Policy: End Sexual Violence in Louisiana

Sexual assault is not an area of the law that is confined to one part of the Civil Code or one section of the Revised Statutes. Instead, the relevant laws are scattered throughout many bodies of Louisiana law. Other than the recently enacted Sexual Assault Protection Order, which is part of the Protection for Victims of Sexual Assault Act,[6] there are several additional statutes that support the strong public policy in Louisiana against sexual violence. One such statute, created in 2007, allows victims to keep their address confidential.[7] Another statute ensures that survivors who want a medical examination may get one for free and without being required to report to law enforcement.[8] In 2011, Louisiana formed a Sexual Assault Task Force to address the needs of survivors in the criminal justice system.[9] Under Louisiana’s Code of Evidence, evidence of a victim’s prior sexual behavior and attire at the time of the assault is inadmissible.[10] In tort, the prescriptive period is extended from one to two years for crimes of violence.[11] The legislature has also provided certain evidentiary privileges for survivors and employees of sexual assault centers.[12]

Taken together, all of these statutes and articles, along with others, evince an intent by the legislature to eradicate sexual violence in Louisiana. To fulfill this intent, attorneys must understand the truth about myths regarding sexual assault, engage in trauma-informed interviewing, and know the available remedies for survivors.

II. Dispelling Myths For Effective Advocacy

Myths are the most prevalent issue behind a lack of legal representation for survivors. To help attorneys become effective advocates for survivors, it is of the utmost importance to dispel these myths before discussing legal remedies. Originally, perpetrators were thought to be strangers, but statistics show that 82% of survivors know their assailants.[13] When survivors know their assailant, they act in ways that seem counterintuitive to societal expectations. For example, a survivor may not want to report an act because she[14] does not want to classify the act as a rape or she does not want the perpetrator to go to jail.

Likewise, there are certain scientific responses to trauma that must be explained to dispel myths that place the blame on rape victims. Because of hormonal responses to fear, often a victim will “freeze.”[15] The scientific name for this response is “tonic immobility,” meaning that the brain signals the body into a complete shutdown.[16] This reaction is also referred to as “rape-induced paralysis.”[17] Afterward, if a survivor does tell someone about her experience, high levels of stress hormones cause a survivor’s memory recall to be slow and disoriented, which can lead to others questioning her credibility.[18] However, even though a survivor’s memories will be disjointed and nonlinear, but if an attorney will give her time to recount what has happened without interruption, she will be more able to recall memories.[19]

The way to help victims’ memory recall is through trauma informed interviewing, which requires that the interviewer recognize disclosure is a process, not an event, and the survivor needs space to recall the traumatic memories. If an attorney needs to clarify a particular question, then it is better to ask later instead of interrupting the victim’s recall.[20] Trauma-informed interviewing is needed to prevent “secondary victimization.”[21] Secondary victimization means the “attitudes, beliefs, and behaviors . . . that victims experience as victim blaming and insensitive.”[22] This victim blaming intensifies a survivor’s trauma, making her feel as if she is experiencing a “second rape.”[23] To complete a trauma-informed interview, an attorney must consciously avoid victim-blaming attitudes by utilizing the research behind victim reactions.

III. Available Remedies for Survivors

Critics argue that a survivor’s only remedy should be a criminal report; however, with the high burden of proof required in criminal trials, victims are often left without a remedy should the police refuse to investigate or the District Attorney decide not to prosecute.[24] Moreover, 98% of rapists will never spend even a single day in jail or prison.[25] As such, it is important to know that there are several civil remedies available for survivors.

Civil remedies are not meant to create tension with the criminal justice system but instead are meant to completely address survivors’ needs. Even if a perpetrator is not prosecuted, civil remedies can be utilized to ensure survivor safety. As a reaction to this realization that survivors need more remedies, the legislature created a special civil restraining order for survivors. Effective August 1, 2015, Louisiana now has a specific Sexual Assault Protection Order (“SAPO”), which is a civil restraining order meant to provide victims of sexual assault with “immediate and easily accessible protection.”[26] Other remedies include civil restraining orders,[27] educational remedies through administrative process under Title IX,[28] employment remedies under Title VII,[29] landlord–tenant contract negotiations, and private civil suit in tort.[30] Finally, an attorney can also send survivors to Sexual Trauma Awareness and Response (“STAR”), which is the only place in Louisiana that provides survivors of sexual assault with civil legal remedies.[31]

Conclusion

Because victims of sexual assault are not always aware of the legal resources available to them when recovering from sexual trauma, it is Louisiana attorneys’ job to inform survivors. The legislature has indicated a public policy against sexual violence, and as such, it is time that all attorneys join in the fight and use the tools of the law to change attitudes, dispel myths, and end sexual violence in Louisiana.

[1] Statistics, STAR, http://www.brstar.org/#!statistics-/cglm [http://perma.cc/9HBJ-89XU] (last visited Oct. 12, 2015). For more statistics regarding sexual assault survivors, see Who are the Victims?, RAINN, https://rainn.org/statistics [https://perma.cc/ELL6-ZJAL] (last visited Oct. 12, 2015). But see, La. Rev. Stat. Ann. § 46:2181(A) (Supp. 2015) (stating that one in five women are victims of rape).

[2] Statistics, supra note 1.

[3] La. Rev. Stat. Ann. § 46:2181(A) (Supp. 2015).

[4] Id.

[5] Id.

[6] Id. §§ 46:2181 to 46:2188.

[7] Id. § 44:52.

[8] La. Rev. Stat. Ann. § 15:622 (Supp. 2015).

[9] La. Rev. Stat. Ann. § 15:556 (Supp. 2015).

[10] La. Code. Evid. Ann. arts. 412, 412.1 (Supp. 2015).

[11] La. Civ. Code art. 3493.10 (2015).

[12] La. Rev. Stat. Ann. § 46:2187 (Supp. 2015); La. Code Evid. Ann. art. 510 (2014).

[13] The Offenders, RAINN, https://rainn.org/get-information/statistics/sexual-assault-offenders [https://perma.cc/D6DU-GYPA] (last visited Oct. 12, 2015).

[14] Although this post uses female pronouns to describe survivors, it should be noted that 1 in 71 men are also victims of sexual assault. La. Rev. Stat. Ann. § 46:2181(B) (Supp. 2015).

[15] Rebecca Campbell, The Neurobiology of Sexual Assault, Nat’l Inst. For Just. (Dec. 3, 2012), http://nij.gov/multimedia/presenter/presenter-campbell/Pages/welcome.aspx [http://perma.cc/2UK8-JN5V] (last visited Oc. 12, 2015).

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Trauma-Informed Victim Interviewing, OVCTTAC, https://www.ovcttac.gov/taskforceguide/eguide/5-building-strong-cases/53-victim-interview-preparation/trauma-informed-victim-interviewing/ [https://perma.cc/L8WG-2K7R] (last visited Oct. 12, 2015).

[21] Campbell, supra note 15.

[22] Id.

[23] Id.

[24] La. Rev. Stat. Ann. § 46:2181(B) (Supp. 2015) (“[I]n some cases the rape or other sexual assault is reported but not prosecuted, as the nature of such allegations are sometimes not easily substantiated to meet the prosecution’s burden of . . . beyond a reasonable doubt. In such cases, the victims of sexual assault are left without protection.”).

[25] Statistics, RAINN, https://rainn.org/statistics [https://perma.cc/ELL6-ZJAL] (last visited Oct. 12, 2015).

[26] La. Rev. Stat. Ann. § 46:2181(D) (Supp. 2015).

[27] See La. Rev. Stat. Ann. ch. 28 (2014 & Supp. 2015). It should be noted that the attorney will likely need to present expert testimony to educate judges about the neurological effects of trauma. See Patricia Frazier & Eugene Borgida, Juror Common Understanding and the Admissibility of Rape Trauma Syndrome Evidence in Court, 12 Law & Hum. Behav. 101 (1988).

[28] 42 U.S.C. § 1681 (2012).

[29] 42 U.S.C. § 2000e-2(a)(1) (2012).

[30] See generally Miles v. Louisiana Landscape Specialty, Inc., 697 So. 2d 348 (La. Ct. App. 5 Cir. 1997); see also La. Civ. Code art. 2315 (2015).

[31] Legal Representation, STAR, http://www.brstar.org/#!legal-representation-/c21bn [http://perma.cc/34X2-2T7Q] (last visited October 12, 2015). There are other places in Louisiana that provide survivors with resources to engage in recovery, although they may not be solely for survivors of sexual assault. For a complete list, see Resources, STAR, http://www.brstar.org/#!resources/c3rq [http://perma.cc/845B-K478] (last visited October 12, 2015).

One thought on “The Time for Change is Now: Using Civil Legal Remedies to End Sexual Violence in Louisiana

Leave a Reply

Your email address will not be published. Required fields are marked *