The Pennsylvania Crime Survivor's Handbook

In the criminal justice system, the Commonwealth, represented by the District Attorney’s office, prosecutes the people who commit crimes. The purpose of the criminal justice system is to punish people who commit crimes and to deter them and others from committing future crimes. However, the criminal justice system has another, equally important purpose – to provide the crime survivor with an opportunity to be heard. Once a crime occurs, crime survivors face many challenges. Reporting a crime may be a challenge in and of itself. Concern that they will not be believed, shame, embarrassment, and fear of retaliation are some of the most common emotions a person may feel after being victimized by a crime. However, reporting the crime to law enforcement is the first step in obtaining justice in the criminal justice system.

What Happens in a Criminal Case?

After a crime is reported, law enforcement investigates the crime and often work directly with the District Attorney’s office where it is decided whether the case should be prosecuted or not. In some instances, a suspect might not be arrested, or a case may be declined for prosecution for lack of evidence.

To understand that term, “lack of evidence,” it is important to understand the burden of proof, or level of evidence, that is necessary to achieve a conviction in the criminal justice system. In the criminal justice system, a defendant must be proven guilty beyond a reasonable doubt. The decision about whether there is enough evidence to meet this very high burden rests with the District Attorney’s office.

Proving a crime beyond a reasonable doubt is the highest standard imposed by law and this means that in some cases there may not be enough evidence to meet the standard for criminal prosecution. That does not mean, however, that a crime survivor’s search for justice ends there. Crime survivors can bring civil cases against defendants and other who contributed to the crime or injury.

Once a case is accepted for prosecution, a crime survivor’s real journey through the criminal justice system begins. The criminal justice system has complex proceedings, procedures, rules, and laws. For a crime survivor, the experience can be frightening and overwhelming. However, many District Attorney’s now employ victim advocates, people who are assigned to offer support for crime survivors. In addition, many local government agencies and community groups offer emotional and financial support as well as counseling.

What kind of evidence does Law Enforcement look for when investigating a crime?

Criminal cases may involve a number of different types of evidence. Often times, especially when dealing with a personal injury crime, the first thing an investigator will do is interview the survivor. Depending on who the survivor is, this interview may take on many forms. For children, there is usually a forensic interview. This forensic interview is conducted by a highly trained professional. This could be done by specially trained law enforcement officers or by specially trained civilian forensic interviewers who work at child advocacy centers. For adult survivors, the interview is usually conducted by law enforcement officers.

Unfortunately, and especially for adult survivors, it may be necessary to conduct more than one interview during a criminal prosecution, where the survivor may have to recount the traumatic events surrounding the crime multiple times. Having to relive this trauma, even for the noble goal of holding the individual perpetrator accountable, can cause lasting damage.

After the survivor interview, law enforcement will conduct additional investigation that may include interviewing other witnesses, including interviewing people with whom the survivor may have shared their experiences. Law enforcement may also attempt to use other investigative tools like secret wiretaps to record incriminating statements by the perpetrator. Investigators may also ask the survivor for access to digital evidence, like social media content or data contained on the survivor’s phone, tablet, or computer. Some investigators, either because of a lack of experience or available technology, may want to search through all of the data contained on a device like a cell phone. This could provide access to private information and communications belonging to the survivor, that have nothing to do with the criminal investigation, to investigators and even, if charges are filed, the perpetrator.

Investigators may also rely on medical evidence. For personal injury crimes like physical or sexual assaults, this may include gathering medical records or having the survivor meet with a medical doctor for an evaluation and treatment. For cases involving sexual abuse, if the report is made close enough in time to the crime, this may also include examinations by specially trained medical personnel, referred to as Sexual Assault Nurse Examiners (or SANE nurses for short). This examination will attempt to find signs of injury (which are often not present even when a sexual assault has occurred) or forensic evidence like DNA.

As a part of almost any investigation, and usually after interviews and other evidence are gathered, law enforcement will attempt to interview the perpetrator. The perpetrator is not required to speak to law enforcement and if they refuse to speak to law enforcement this cannot be used against them in a future prosecution.

In sexual abuse cases, the public often hears or uses the term “he said, she said” to imply that there is little or no evidence of a crime beyond what the survivor has reported. This term suggests that if the survivor has one version of events, and the perpetrator a different version of events, that the case cannot proceed forward with charges. This is flat wrong. In Pennsylvania, when it comes to crimes of sexual violence, it is the law that the word of a survivor alone, if credible, is sufficient to meet the very high burden of proof beyond a reasonable doubt. That is to say that the account of a survivor by itself, if believed, can lead to criminal charges even if there is no other independent evidence of the crime.

It is well established in the United States that an accused person, the perpetrator, has a right to an attorney. In many cases an accused person may seek out legal representation before charges are even filed. The rights of a crime survivor are no different. A survivor of crime is equally entitled to representation by an attorney, including throughout a criminal investigation and prosecution. It is important to note that while a representative of the District Attorney’s office will be assigned to prosecute a case, they are not the crime survivor’s lawyer. The District Attorney’s office represents every person in the community but does not have a specific individual as their client. A crime survivor is entitled to sound legal advice from a qualified, independent crime survivor attorney; making sure that you have this type of representation early on in any process can be important to ensure your rights are protected and your concerns are heard.

How are Criminal Cases Resolved?

The vast majority of cases are resolved by way of plea agreement, in which a defendant agrees to plead guilty or no contest to one or more of the charges. If a plea agreement is not reached, the Assistant District Attorney will present evidence at trial. This usually includes the survivor’s testimony. For some crime survivors, testifying in court can be therapeutic or cathartic, while for others it can be extremely stressful and scary. The bottom line is that in most instances, in order for a trial to result in a guilty verdict, the survivor must step forward and testify. After the Commonwealth presents the evidence, the defendant has a right, but it is not required, to present a case. If a defendant chooses to present a case, the Commonwealth can rebut the case. At the end of the presentation of evidence, a jury or judge will render a verdict.

After a guilty verdict or plea, the defendant will be sentenced according to Pennsylvania’s sentencing guidelines. A sentence can include any combination of the following: a term of incarceration (i.e., serving a period of time in jail), probation, fines, fees, and restitution. Unfortunately for some crime survivors, their journey through the criminal justice system might not end at sentencing. A defendant may choose to appeal a conviction and, if successful and depending on the circumstances, a retrial may be necessary. The District Attorney’s office is equipped to handle appeals and retrials. In addition, victim advocates as well as community groups and government agencies offer support and assistance to survivors of crime.

The criminal justice system is designed to punish criminals and deter others from committing crimes in the future. In Pennsylvania, as in virtually all states, prosecution of criminals is the responsibility of law enforcement and the District Attorney’s office, which represents the Commonwealth of Pennsylvania. This chapter discusses the nuts and bolts of the criminal justice system.

Investigation

A crime must be reported to law enforcement in order to begin prosecution. Crimes can be reported by crime survivors and witnesses. In addition, certain individuals, called mandated reporters, must report crime regardless of whether a survivor steps forward or wants the crime to be reported. In Pennsylvania, mandated reporters, which include teachers, therapists, or other trusted professionals, must report suspicions or allegations of child physical abuse or child sexual abuse. After law enforcement is notified of the commission of a crime, an investigation takes place and generally includes some or all of the steps discussed in Chapter One.

Criminal Complaint

After the law enforcement investigation is complete, law enforcement initiates criminal proceedings by filing a Criminal Complaint with the local magistrate judge. In many counties in Pennsylvania, law enforcement investigators are required to submit the results of certain investigations to the District Attorney’s office to authorize charges (such as in cases of sexual assault or abuse). The purpose of the Criminal Complaint is to notify a defendant of the charges and summarize the facts as known to law enforcement. The summary of the facts is known as an Affidavit of Probable Cause. In some instances, law enforcement may initiate criminal proceedings by immediately arresting the perpetrator and then filing a Criminal Complaint. In rare occasions, a private party / citizen may file a Criminal Complaint which then must be approved by the District Attorney’s office.

Arrest or Summons

After a complaint is filed, a magistrate issues an arrest warrant or, for less serious crimes, a summons. Law enforcement then executes the warrant and arrests the defendant. If a summons is issued, it is usually mailed to the defendant and then the defendant must report to law enforcement or the courts to face the charges.

Preliminary Arraignment

This is the first judicial proceeding in the criminal justice process and is held before a magistrate judge. Here, a defendant is notified of the charges and given a copy of the Criminal Complaint. In addition, bail is set, and a preliminary hearing is scheduled.

Bail

A magistrate judge sets bail that may take many different forms. Sometimes a magistrate will set bail in a monetary amount. This could be a requirement that a defendant pay a certain amount of cash to be released pending trial. This could also be a requirement that a defendant pay a percentage of a certain amount of cash to be released pending trial. In other cases, a defendant may be released on their own recognizance (called “ROR” bail) where no money is required to be released pending trial. Finally, certain crimes, including homicide or other charges where the potential sentence is life in prison, allow a magistrate to not set bail at all and immediately send the defendant to jail pending trial. There may also be other non-monetary aspects of bail, including that the perpetrator does not have any contact with the survivor of the crime. If a defendant violates the terms and conditions of their bail during the criminal justice proceedings, they may have their bail revoked or modified.

In Pennsylvania, crime survivors have the right to be informed of any bail decisions, including whether the perpetrator was released on bail or not. Crime survivors also have the right to be immediately informed if a perpetrator who was detained in jail pending trial escapes.

If a defendant is in jail pending trial, there are important timing deadlines that are triggered. In Pennsylvania, Rule of Criminal Procedure 600 requires that if a person is in jail pending trial that the trial must start within 180 days of incarceration or else the perpetrator may be released. For cases where the defendant is released pending trial, the same Rule requires that the trial must start within 365 days of the arrest or the case could be dismissed.

Preliminary Hearing

The next judicial proceeding is the preliminary hearing. Here, the Commonwealth must make a prima facia case. This means that the Commonwealth must present evidence that a crime was committed and that it is more likely than not that the defendant committed the crime. Sufficient evidence usually includes testimony from a police officer or a crime survivor. Depending on the county, an Assistant District Attorney or a law enforcement officer will represent the Commonwealth at the preliminary hearing. If the Commonwealth presents a prima facia case, the case is held over for court.

Bill of Information

After a case is held over for court, the next step is the filing of a Bill of Information. The District Attorney’s office files this formal charging document with the clerk of the Court of Common Pleas. The Bill of Information specifies the counts or charges against the defendant.

Formal Arraignment

In this proceeding, the defendant is given a copy of the Bill of Information and advised of various Constitutional rights. In rare cases, the charges may be formally read out loud to the defendant before a judge. More often, a defendant will waive this formal reading and therefore not have to physically appear in court for the formal arraignment. Within thirty days of the formal arraignment, most pre-trial motions must be filed.

Pre-Trial Conference

After the formal arraignment and before trial, the defendant, his or her counsel, and an Assistant District Attorney will meet with a judge to discuss possible resolution of the case via plea agreement. If there is no resolution via plea agreement, the case will be scheduled for trial. If there is a plea agreement, that hearing will be scheduled. In many cases, there may be multiple pre-trial conferences. In Pennsylvania, survivors of crime have the right to be notified of any pre-trial conference and the right to be present at any pre-trial conferences. However, it is not always necessary for crime survivors to be present at all pre-trial hearings, which can sometimes lead to confusion on the part of a crime survivor about whether they need to be present. Sometimes crime survivors will need to change their schedule, by taking off of work for example, in order to be present. Knowing whether it is necessary to be present in court, either through notification of the District Attorney’s office or their own lawyer, is an important part of the process.

Guilty Plea

The majority of criminal cases are resolved by way of a plea agreement. At a plea hearing, a defendant, their lawyer, and an Assistant District Attorney will appear before a judge. Here, a defendant accepts guilt by pleading guilty to a given charge or may plead nolo contendere, meaning he or she does not contest the charges. This latter type of plea is not an admission of guilt. After the guilty plea or nolo contendere plea is entered and accepted by the court, sentencing may occur immediately or may be scheduled in the future.

In Pennsylvania, crime survivors in cases involving personal injury or burglary have the right to be advised by the District Attorney’s office of any plea offers and the right to speak to the District Attorney’s office regarding any plea offers.

Trial

If a defendant exercises the Constitutional right to trial, a jury trial or court trial may occur. Court trials, where the judge serves the role of both judge and jury, are often called “bench” trials. The process in both a jury and bench trial is, for the most part, the same. The difference is in who decides the verdict. In a jury trial, a jury decides the verdict. In a bench trial, the judge alone decides the verdict. While the choice between a jury trial or court trial is often made by the defendant, in Pennsylvania the District Attorney’s office also has a right to a jury trial even if the defendant requests a bench trial.

In Pennsylvania cases involving a number of different crimes, including crimes related to sexual assault and abuse, the crime survivor has the right to be present, and not excluded, from the trial proceedings. Sometimes, lawyers for a perpetrator may try to exclude crime survivors or their families from trial by asking for “sequestration” of witnesses. If a judge orders that witnesses be sequestered, it means that those witnesses, including potentially the crime survivor, will not be allowed in the courtroom to observe the trial until they testify.

Sentencing

At the sentencing hearing, the defendant, their lawyer, and the Assistant District Attorney are present. Prior to sentencing, the local probation office prepares a pre-sentence investigation or other reports for the court’s consideration. This pre-sentence investigation report details the crime and the defendant’s history. For certain cases involving sexual assault and abuse, the defendant may also be required to undergo a Sexually Violent Predator assessment which will help the judge determine if additional conditions of sentencing are necessary, like increased reporting requirements under Pennsylvania’s version of Megan’s Law, which involves registration as a sex offender.

In Pennsylvania, crime survivors have a right to submit prior comment at sentencing. Crime survivors have the right to have their statement considered by the judge during sentencing. The statement may be written and submitted to the judge or read aloud during the sentencing in the courtroom. The person reading the statement may be the crime survivor, the Assistant District Attorney, or another person chosen by the crime survivor. Depending on the crime, Pennsylvania law may impose mandatory minimum sentences. In most cases, the court imposes a sentence based upon sentencing guidelines set by law which take into account the nature of the offense and the defendant’s criminal record.

Post Sentencing

A defendant may be sentenced to jail, be placed on probation, or some combination of both. Common conditions of probation include completion of community service, restitution to the victim, and completion of counseling programs.

Restitution is an amount of money that a defendant may be ordered to pay to a crime survivor for financial losses they suffered up until the time of sentencing. This can include payment for damaged or stolen property or medical bills related to treatment for injuries related to the crime. There are two important things for crime survivors to understand about restitution. First, restitution can only be ordered to pay for past losses and not future expenses such as those related to ongoing therapy or other mental healthcare. Restitution will not be ordered to compensate the family of a victim of homicide for ongoing losses like future income that would have been earned by the homicide victim or the loss of companionship by a parent, child, or partner. Second, in many cases a convicted criminal may not have the realistic ability to pay restitution and so a crime survivor may not ultimately receive the restitution that is ordered. In some instances, if another person or institution (like a business, school, or church) was responsible, even in part, for the injuries suffered by a survivor of crime, the crime survivor or their family will have to turn to the civil justice system to recover compensation they are owed through restitution or for losses that will not be covered by an order of restitution at sentencing.

A defendant may choose to appeal his or her conviction and if successful, may be granted a retrial.

While criminal defendants are afforded Constitutional rights, so too are survivors of crime. Beginning in the 1980’s, states across the country began passing laws designed to aid survivors of crime as they made their way through the criminal justice system. In Pennsylvania, survivors of crime have many rights, some of which have been strengthened over time. As discussed in Chapter Two, a crime survivor has a right to present a written statement at sentencing. Twenty years ago, this right did not exist. In addition, many District Attorney’s now employ victim advocates, people who offer support to crime survivors.

One of the most important rights granted to crime survivors in Pennsylvania only came into effect in 2022. The legal term for this important right is called “standing.” It used to be the survivors of crime had certain “rights,” like to be present at proceedings or to comment on plea offers and sentencing. However, prior to 2022, crime survivors or their legal representative had no legal standing (i.e., legal ability) to enforce those rights in court or to ensure that participants in the criminal justice system (like the judge or the District Attorney’s office) honored them. That meant, for example, a crime survivor could have been prevented from actually being heard in a courtroom. Some argued that having a “right” but no legal ability to enforce that right, was like not having a right at all. In 2022, the legislature in Pennsylvania passed a law that made it clear that survivors of crime and their legal representative had legal standing to enforce their rights.

Under the Pennsylvania Crime Victims Act which can be found at 18 P.S. § 11.101, et. seq., survivors of crime have the following rights:

1. To receive basic information concerning services available;

2. To be notified of certain significant actions and proceedings within the criminal and juvenile justice systems pertaining to their case;

3. To be accompanied at all proceedings by a family member, a victim advocate, or other person providing assistance or support;

4. In cases involving a personal injury crime or burglary to submit prior comment to the prosecutor’s office or juvenile probation office about the outcome of the case;

5. To offer prior comment on the sentencing of a defendant, including a written and oral victim impact statement detailing the effects of the crime on the survivor and the survivor’s family;

6. To be restored to the pre-crime economic status through restitution and the speedy return of property which was seized as evidence in the case, so long as approved by the prosecutor;

7. In personal injury crimes where an adult defendant is sentenced to a State correctional facility, to be given the opportunity to provide prior comment on and receive post-sentencing release decisions and to be given immediate notice of the escape of the defendant;

8. In personal injury crimes where an adult defendant is sentenced to a local correctional facility, to receive notice of the release or escape of the defendant;

9. In cases where there is a Protection From Abuse Order, Protection from Intimidation Order, or Sexual Violence Protection Order in place and the defendant is arrested for violation of that Order, to receive notice that the defendant was released on bail;

10. In cases where the defendant is committed to a mental health facility, to receive notice of the defendant’s discharge, transfer, or escape;

11. To have assistance in the preparation of, submission of, and follow-up on financial assistance claims;

12. In personal injury crimes, upon request by the crime survivor, to be notified of the termination of the court’s jurisdiction.

Having support and assistance is crucial to recovering from the trauma of surviving crime or having a loved one killed from crime. From physical and emotional pain to financial consequences, the effects of crime can be devastating. However, there is help. While crime survivors may seek assistance from family, friends, or private health care providers, there are multiple state and local government agencies which provide different types of support and assistance to different types of crime survivors. In addition, support and assistance is available not only to the direct survivor of crime, but also to a crime survivor’s children and other family members.

The Crime Victims Compensation Fund

Pennsylvania’s Victims Compensation Assistance Program is administered through the Office of Victim Services. Crime survivors may be eligible for compensation for medical bills, counseling, lost wages, funeral expenses, crime scene clean up, and other financial costs. There are eligibility requirements and exclusions. For example, compensation for pain and suffering is not covered under this program. For more information please visit https://www.pa.gov/services/pcv/apply-for-victims-compensation.html.

Local Government and Nonprofit Services

There are multiple resources for crime survivors in each county in Pennsylvania. The Pennsylvania Office of Victim Advocate offers a helpful online database of victim services agencies throughout the Commonwealth. The database can be accessed by visiting https://www.pa.gov/agencies/ova/ova-search-hubs/victim-services.html#sortCriteria=%40copapwptitle%20ascending%2C%40title%20ascending.

Help for Victims of Sexual Assault and Abuse

There are special resources for survivors of sexual assault and abuse at both the state and national level. Some of the local services may be found by visiting the database offered by the Office of Victim Advocate (above). The Pennsylvania Coalition Against Rape (PCAR) is a statewide organization offering services and resources for sex abuse victims and their loved ones. PCAR works with local agencies in every county in Pennsylvania. For more information, please visit www.pcar.org or call (888) 772-7227. For survivors of sexual assault or abuse by priests, the Survivors Network of Those Abused by Priests (SNAP) offers assistance. It also works to promote change within the institutions in which abuse was ignored or even protected. For more information, please visit www.snapnetwork.org or call (800) 762-7432.

While the criminal justice system resolves only criminal cases, the civil justice system resolves all other types of cases. From property disputes to personal injury (or “tort”) claims, the civil justice system decides the rights, liabilities, and responsibilities of people and institutions that have caused injury to another person. Tort claims are claims brought by people who are hurt, physically or emotionally, by others. Survivors of crime are commonly mistaken about their rights and end their search for justice at the conclusion of a criminal case. If a criminal defendant is never arrested, never prosecuted, or even if a criminal defendant is acquitted, the crime survivor can still prevail in a civil lawsuit. The civil justice system can accomplish what the criminal justice system cannot – financial recovery for pain and suffering, emotional distress, and future damages such as future lost earnings and future medical expenses.

A crime survivor’s privacy can be protected in many ways throughout the civil justice process. Survivors can proceed anonymously so that their names and addresses are redacted from public court records, and all or part of a public court record may be sealed, including depositions and written discovery. Settlements can involve confidentiality agreements.

Filing a civil lawsuit is not easy, especially for crime survivors. On the one hand, filing a civil lawsuit may provide vindication and justice. Doing so sheds light on a particular perpetrator and gives the crime survivor an opportunity to be heard. On the other hand, factors such as the length of time it takes to conclude a civil case or having to discuss the crime and its effects can be discouraging. At the end of the day, the choice to file a lawsuit belongs solely to the crime survivor.

What Happens in a Civil Case?

Just like in a criminal prosecution, the first step in the civil justice system process involves careful investigation. It is crucial to determine who the responsible parties are. In many cases, the person who actually committed the crime is not the only person who bears legal responsibility for the crime and resulting injury. Others responsible may include school districts, religious institutions, residential and commercial landlords, bars, hotels, shopping centers, childcare centers, restaurants, hospitals, employers, and more.

The burden of proof in a civil case is very different than a criminal case. In Chapter One, the burden of proof in a criminal case, proof beyond a reasonable doubt, was discussed. In a civil case, the burden of proof is called a preponderance of the evidence. That means that the plaintiff only has to show it is more likely than not, that a defendant is liable. Think of the scales of justice: for the burden to be met under a preponderance of the evidence, those scales must tip ever so slightly in favor of the plaintiff for the plaintiff to be successful at trial.

Once the investigation is complete, the next step is filing a lawsuit. The lawsuit names the crime survivor or the survivor’s estate as the plaintiff. The criminal defendant and potentially others are civil defendants. In most cases a lawsuit begins with the filing of a Civil Complaint, a formal document which alleges the defendant(s) caused damage to the plaintiff. A Civil Complaint is similar to a Criminal Complaint, described in Chapter Two, in that it outlines the causes of action (like charges in the criminal justice system) and a summary of the facts (like the Affidavit of Probable Cause in the criminal justice process).

After the Civil Complaint is filed and the defendant(s) are served with a copy, the discovery phase begins. In this phase, the parties exchange any and all information related to the case, information about potential witnesses, and any documents or things related to the case. The parties may also subpoena documents from non-parties, such as medical providers or other witnesses. After discovery is complete, depositions take place. In a deposition, a party or witness testifies about their knowledge of facts related to the case.

How are Civil Cases Resolved?

After depositions are complete, the parties prepare their respective cases for trial. Like in the criminal justice system, the majority of civil cases are resolved by way of agreement, or settlement. Discussions related to the settlement of a civil case may happen at any time, whether before the civil case is formally filed in court, during the discovery process, or up to and including trial. If the parties cannot reach a settlement, then there usually will be a trial. Settlements in a civil case can happen during informal conversations between the lawyers for the plaintiff and defendant(s) or by going to a mediation. A mediation is a cost-effective alternative to trial and may be appropriate depending on the circumstances of the case. Mediations are done with the agreement of the parties and after the parties have agreed on a particular individual to serve as the mediator. Mediators may be retired judges or other individuals who are specially trained to try and assist the parties to find a settlement that everyone can agree upon.

A civil trial follows the same format as a criminal trial. The plaintiff presents their case first. After the conclusion of the plaintiff’s case, the defendant(s) presents their case and then the plaintiff may rebut. At the conclusion of all the evidence, a judge or jury will render a verdict. Either side can appeal a verdict and some cases may settle during the appeal process or afterwards.

Protective Orders

In Pennsylvania, protective orders are available to survivors of crime. These protective orders are considered quasi-criminal in nature because they have elements of both the criminal and civil justice system. In Pennsylvania, there are three types of Protective Orders available: Protection From Abuse Orders, Protection from Intimidation Orders, or Sexual Violence Protection Orders.

A Protection from Abuse Order is available to anyone who is 18 years of age or older and sometimes minors. Protection from Abuse Orders are available in cases of physical, sexual, or psychological violence where the survivor and perpetrator are: spouses or ex-spouses, current or former sexual or intimate partners, parents, persons related by blood or marriage, and children who reside in a home with any of the above individuals.

A Protection from Intimidation Order is available in cases of harassment and stalking where (1) the survivor and perpetrator do not have a family, household, or intimate partner relationship, (2) the survivor is under the age of 18, and (3) the perpetrator is over the age of 18.

A Sexual Violence Protection Order is available in cases of sexual violence where the survivor and perpetrator do not have, and have never had, a family, household, or intimate partner relationship. These Orders are available regardless of the ages of the survivor and perpetrator but if the survivor is under the age of 18 then a parent, guardian, or other adult household member must file for the Order on the minor’s behalf.

The key differences in these Orders are the nature of the abuse and the relationship between the survivor and the perpetrator. These Orders are designed to protect the survivor from further abuse and can prohibit the perpetrator from having any contact with the survivor or the survivor’s friends and/or family. These Orders are either temporary or final. A temporary order is effective for 10 days, whereas a final order is effective for 3 years and in certain circumstances can be extended. Either a temporary or final Order is obtained by filing a petition with the local court. After a hearing, the judge will decide whether to grant or deny the petition. In cases of emergency, after hours or on weekends, a local magistrate judge will hear emergency petitions. Violation of these Orders constitutes Indirect Criminal Contempt and may result in up to six months of incarceration and fines.

Crime Victim Right of Access

It used to be the survivors of crime were not allowed to have any access to investigative materials gathered during a criminal investigation or prosecution. In Pennsylvania, the Criminal History Record Information Act prohibited access to almost all investigative materials gathered during an investigation or prosecution except to law enforcement agencies or the criminal defendant (if they were charged with a crime and prosecuted). This meant that investigators could gather all sorts of information, like witness statements or other evidence of crime, but that the survivor or their family was never allowed to have access to these same materials. This meant that an individual perpetrator may have had far more access to important criminal investigative materials than the survivor. Institutional defendants, like schools, business, or churches, could hide behind the lack of information to delay or hamper a civil case.

When I first started representing crime survivor’s in private practice, I drafted legislation to fix this problem so that crime survivor’s and their families were on equal footing with everyone else involved in the process. In 2022, the legislation I drafted would eventually become the law in our Commonwealth in the form of a new statute called the Crime Victim Right of Access. This new law amended the Criminal History Record Information Act to allow crime survivors or their legal representatives to receive access to criminal investigative materials for the purposes of investigating or prosecuting a civil lawsuit. This ensures that crime survivors who wish to have access to investigative materials for the purposes of pursuing a civil lawsuit will be on equal footing with their abusers. While anyone contemplating a civil lawsuit may request these records, having a qualified crime survivor attorney at your side can make this process substantially easier.

The civil justice system can help crime survivors get the justice they deserve through financial compensation for their pain and suffering, emotional distress, economic damages such as past and future medical expenses or past and future lost earnings. Also, Pennsylvania law allows for punitive damages, or damages designed to punish behavior and deter others from similar conduct. This type of claim may be made when the defendant acts or fails to act in such a way that it shows conscious disregard or reckless indifference for the safety of others. Many crime survivors’ civil lawsuits include claims for punitive damages. This chapter discusses the nuts and bolts of the civil justice system.

While the civil justice system is primarily designed to try and make an injured person whole by awarding damages in the form of monetary or financial compensation, a crime survivor seeking justice may, rightfully, want more. While financial compensation aimed at making a person whole again is important, sometimes survivors of crime may desire to try and ensure that what happened to them never happens again. Trying to accomplish that usually takes the form of what are called non-monetary conditions. For institutions, like schools, businesses, or churches, this may mean insisting that any settlement include important non-monetary conditions like better screening for employees to catch abusers before they are hired, better training to ensure those who suspect abuse report it, or better policies requiring strict supervision of employees to ensure that there are no opportunities for abuse to occur in the first place. A settlement in a civil lawsuit can include not just financial compensation but also non-monetary conditions that will allow survivors of crime to make sure others are safe in the future.

Hiring an Attorney

The decision to hire an attorney for a crime survivor’s civil tort case is an important decision. It is of course, a deeply personal decision, given the sensitive nature of the case. Hiring an attorney with experience representing survivors of crime is crucial. Oftentimes, a criminal case and a civil case will occur at the same time and could overlap. Attorneys with experience representing crime survivors know how to conduct their civil cases so as to minimize issues in the criminal case, and they also know how to investigate the case to maximize recovery. Qualified crime survivor attorneys who have had experience in the criminal justice system as a prosecutor may also help the crime survivor by offering guidance, insight, advice, and support during a criminal investigation or prosecution, by knowing the process to ensure the rights of the crime survivor are protected during a criminal prosecution or investigation, by being a liaison between law enforcement and the crime survivor, and even by being a resource to the investigator or assigned prosecutors during the investigation and prosecution. Many lawyers who represent crime survivors work on what is called a contingency fee basis, meaning that they do not charge their client any legal fees unless and until there is a financial recovery in their case.

Investigation

It is essential that a crime survivor’s attorney conduct a careful and thorough investigation into the crime and circumstances related to the crime. In many situations, a crime occurs not only because of the actions of the perpetrator but because others knowingly or unknowingly aided the perpetrator in committing the crime. Other parties bear legal responsibility for the commission of a crime, such as a landlord who fails to provide sufficient locks on hallway doors even after learning of criminal activity on the premises, a school, business, or church who failed to properly supervise or discipline a perpetrator, or a bar or restaurant that over-serves alcohol leading to a drunk driving injury.

The Parties

The parties to a lawsuit are the plaintiff and the defendant(s). Crime survivors, their estates, and family members can all be plaintiffs. Defendants can include those whose actions or inactions contributed to the crime and injury, such as schools, school districts, religious institutions, residential and commercial landlords, bars, hotels, shopping centers, childcare centers, restaurants, employers and more.

Initiating a Lawsuit

 A lawsuit is usually initiated by filing a Civil Complaint with the county court where the incident(s) happened, called the Court of Common Pleas. A Civil Complaint is a formal document which lays out the parties and the facts, alleging the defendant(s) committed some action or inaction which led to the plaintiff’s injuries. On some occasions, when an attorney does not have enough information to file a complaint, a lawsuit can be initiated by filing a Writ of Summons. This document allows the attorney to subpoena documents and obtain information before filing a complaint.

Discovery

The discovery process begins after the lawsuit is filed and the defendant(s) has been served with the Civil Complaint. The parties will exchange information and documents by answering documents known as Interrogatories and Requests for Production. These are basically questions about the case and requests for any document or things related to the case. After the plaintiff receives initial discovery from the defendant(s), additional discovery may be necessary. For instance, the plaintiff’s attorney may subpoena documents from non-parties, such as government agencies, businesses, or individuals.

Depositions

 At a deposition, the person being deposed is known as the deponent. Depositions are usually held in attorneys’ offices, not in courtrooms. Generally, the only persons present are the attorneys for the parties, the deponent, and a court reporter. Any of the parties also have the right to be present. The deponent will testify under oath and answer questions about their knowledge of the facts related to the case. Generally, the only depositions needed are those of the parties and, in the case of business entities, their designees. Depending on the case, it will be necessary to take depositions of witnesses and other persons such as police officers and medical providers. It is important to note that cases are often won or lost in depositions. Therefore, it is vital to have an experienced crime survivor attorney who will adequately prepare the case for depositions and depose the necessary parties and witnesses.

As noted, each of the parties to a civil lawsuit have the right to be present during depositions. Usually, none of the parties are present (unless they are the person being deposed). It is important to understand, however, that if the perpetrator is named as a defendant, they will have the right to be present at any deposition, including the deposition of the crime survivor (who is the plaintiff). One thing the attorney for a crime survivor may do if a perpetrator wants to be present at the deposition of a survivor is to file a motion with the court to prevent this from happening. The law in Pennsylvania is clear that if the presence of any person at a deposition, including the perpetrator, may intimidate or cause harm to a survivor that they do not have the right to be present. This is yet another reason that it is critical to have a qualified and experienced crime survivor attorney so that they know the law and can protect you throughout the process.

Expert Reports

In most cases, experts write reports for the case, summarizing some aspect of liability or damages. Some reports may be from damage experts, such as the plaintiff’s physicians or mental healthcare providers or a physician or psychologist/psychiatrist that is hired by an attorney to evaluate the plaintiff and write an independent report. In these reports, the doctors summarize the extent of the injuries, diagnoses, treatment, and prognosis. Other reports may be supplied by liability experts who discuss the nature of a defendant’s negligence. For example, in a case where a residential landlord fails to provide proper security, an expert in security and residential apartment management may prepare a report summarizing the extent of the negligence of the defendant, the landlord. Both the plaintiff and defendant(s) may have liability and damages expert reports in a case.

Pre-Trial Motions

During discovery either side may file motions. A common example would be if a defendant is refusing to cooperate by providing documents or information, or refusing to answer questions during a deposition, the attorney for the plaintiff may file a motion asking that the court order the defendant to comply.

After discovery is complete, a common pre-trial motion is known as a summary judgment motion. This type of motion is most commonly filed by defendants, asking the court to dismiss the case for legal reasons. A summary judgment motion will be granted and the case dismissed if there are no issues of fact and if there is a rule of law which supports a finding in favor of the defendant(s). An attorney experienced in representing crime survivors will be prepared to defend against this type of motion.

Before trial, each side will file pre-trial motions regarding the evidence that they want to present at trial. This can include any number of issues. The sorts of issues involved in crime survivor cases are often unique and specialized. One example is Pennsylvania’s Rape Shield law. In Pennsylvania, the Rape Shield law prohibits evidence related to the survivor’s sexual activity, both before and after a crime, from being admitted at trial. In Pennsylvania, this law only applies to criminal cases and so defendants in civil cases may try and use this information improperly during a civil trial. A qualified and experienced crime survivor attorney will have the knowledge to defend against this and other improper tactics used by defendants to try and shame the survivor or distract from the truth.

Settlement

 The majority of civil cases settle prior to trial. Taking a case to trial is increasingly costly and can range from $10,000 to $100,000 or more, depending on the case. These costs include substantial expert fees, preparation of evidence, taking depositions, etc. Before scheduling a trial, courts in Pennsylvania generally require a settlement conference or the parties can agree to private mediation. Most cases will settle before trial. Only the plaintiff can make the decision to accept a settlement offer from the defendant(s). Settlements in crime survivor cases can be complex and involve unique issues related to non-monetary conditions, confidentiality, or taxes. Having an experienced, qualified crime survivor attorney will best protect you when it comes to these distinctive issues in crime survivor litigation.

Trial

 Just as in criminal trials, the process in both a jury and bench trials is the same in civil trials. In a bench trial, the judge alone decides the verdict. In civil cases, the choice between a bench trial or a jury trial is made by the parties. Either side can request a jury trial.

After a trial, either side may try to appeal the verdict. Depending on the circumstances, and just like in a criminal case, this can result in a retrial.

For crime survivors, coming forward can take years and unfortunately Pennsylvania’s Statute of Limitations limits the time a survivor has to file a lawsuit against responsible parties. Whether a crime survivor’s case is defeated by the Statute of Limitations is an important legal question. It is crucial to speak to an experienced crime survivor attorney as soon as possible.

The Two-Year Statute of Limitations

Like most states, Pennsylvania’s general personal injury Statute of Limitations is two years from the date of the injury. For many crime survivors, this means that the Statute of Limitations will expire two years from the date of the crime. In general, crime survivors must file civil lawsuits within two years of the date of the injury. For minors, the Statute of Limitations for physical abuse cases expires two years from the date they turn 18. So, in other words, if a crime survivor is under the age of 18 when a crime involving physical abuse occurred, the Statute of Limitations will expire two years after their 18^th birthday.

Statutes of Limitation in Sexual Abuse Cases

In Pennsylvania, the traditional two-year statute of limitations does not apply to every case involving sexual assault or abuse. There are different, and longer, statutes of limitations for children and young adults that were sexually abused. These special and extended statutes of limitations are discussed in Chapter Ten.

Exceptions to the Statute of Limitations

 There are some exceptions to the Statute of Limitations. For example, a defendant’s fraudulent conduct or fraudulent concealment may toll (or pause) the Statute of Limitations. Many defendants attempt to conceal their crimes or their knowledge of crimes committed by their employees. This can include threatening the survivor or giving the survivor false or misleading information about their knowledge. Such threats may be enough to constitute fraudulent concealment. Also, the survivor’s mental incompetence at the time of the injury may toll the Statute of Limitations. Another exception to the Statute of Limitations is the discovery rule. Under this rule, the Statute of Limitations expires not two years from the date of injury, but two years from the date a plaintiff discovered that he or she was injured when that injury was caused by the defendant.

Statute of Limitations issues are time sensitive and fact specific. Each case requires careful analysis by a qualified, experienced crime survivor attorney. It is important for a crime survivor to contact an attorney as soon as possible to discuss their case.

Many crime survivors are not fully informed about their civil rights. They simply do not know of their right to file a lawsuit against not only the perpetrator of crime, but any other person, business, school, or institution which unreasonably failed to prevent the crime and injury. The potential defendants in a crime survivor’s civil lawsuit can, and often do, include the following: schools, religious institutions, residential and commercial landlords, bars, hotels, shopping centers, childcare centers, babysitters, restaurants, youth centers, clubs, doctors, therapists, and hospitals. There are multiple types of claims, depending on the circumstances of a given cause.

Failure to Report or Prevent Sexual Abuse

We live in a culture of silence. We mind our own business. This culture of silence comes, however, at a cost. This is often the reason why child abuse continues, even when suspected by others. Sex abuse by clergy and teachers is a unique problem because of the extent of the abuse. In most situations of clergy and teacher sex abuse, the abuse continues for months, if not years. Many times, the abuser will abuse other children as well. In many cases, others within the religious institution or school come to suspect the abuse or observe signs of abuse, but nothing happens. In some cases, a religious institution or school takes active steps to hide the abuse, allowing the abuser to continue abusing the survivor and others. In these kinds of cases, religious institutions and schools may be legally responsible for sexual abuse happening under their roof.

Failure to Protect Others from Reasonably Foreseeable Criminal Activity

Pennsylvania law specifically recognizes liability of a landowner for foreseeable criminal activity on its premises, if the landowner fails to provide reasonable security measures or fails to warn its residents or guests. This principle extends to bars, hotels, shopping centers, restaurants, and other places of business. It also extends to companies hired by landowners to manage or police properties, such as apartment complex management companies or security companies. One of the most common examples is where a landlord fails to warn residents or fails to provide reasonable security after learning of break-ins in its apartment complex. Another common example is an apartment complex with faulty door locks or inadequate lighting which leads to access by criminals. If a resident, guest, or patron is injured as a result of foreseeable criminal activity, the landowner or property management company may be legally responsible.

Negligent Hiring / Negligent Retention

In some cases, liability of a business entity flows from a failure to conduct a reasonable security or background check of an employee or negligently retaining an employee who is violent. For example, an employer may hire or retain an abuser or someone with a criminal history. If a co-worker or business guest is injured by that individual, the employer may be liable.

Dram Shop Liability

Bars and restaurants may be liable for serving a patron who appeared to be intoxicated or for serving a minor. If an intoxicated person or minor later gets into an accident or commits a crime and injures another person, the survivor may be able to make a claim against the bar or restaurant which served the drunk driver. Individuals may also be liable, such as a social host who served a minor.

Human Trafficking

Over the past several years, the public has come to recognize the prevalence of human trafficking. Human trafficking has long existed and more recently, the public is finally becoming aware of the signs surrounding human trafficking, how frequently it occurs, and the significant trauma inflicted upon a victim of human trafficking. Human trafficking can occur whether the survivor is an adult or a child and can involve both commercial sex trafficking (where sexual and other abuses occur) and labor trafficking (where a person is forced to work under abusive conditions). In either circumstance, a person or business can be liable for human trafficking where force, fraud, or coercion is used against the survivor or, in the case of a child, simply when a commercial sex act is committed involving the child. Both criminal and civil litigation related to human trafficking is complex and evolving. When it comes to human trafficking, businesses that are aware of the existence of trafficking or financially benefit from the trafficking may be held liable. This includes hotels where survivors are trafficked.

Child Sexual Abuse Materials (Child Pornography)

Child Sexual Abuse Materials, once referred to as child pornography, are sexually explicit images of children often circulated and traded online by predators. These images can cause lasting harm to the survivors depicted. Once an image is distributed, every time that image is viewed it constitutes abuse of the child that is in the image. Civil causes of action against the individuals who create or distribute these images, or businesses and institutions that assist abusers in creating or distributing the images, have been created under both state and federal law. These civil causes of action have automatic restitution provisions that allow survivors to seek compensation for the abuse.

Social Media

Social Media is everywhere and the more that social media is studied, the more information emerges about how it harms people, especially children. Companies that allow social media platforms to harm children or that allow abusers to use their platforms to commit crimes related to child abuse may be liable for not designing the platforms to guard against these abuses.

Public Schools

It used to be that public institutions, like public schools, were immune from civil liability for allowing abuse to occur. For example, if a public school teacher sexually abused a child, and school staff or administrators failed to report the abuse or if the school failed to have appropriate safeguards in place to prevent the abuse from happening, the public school could not be sued. In 2019, Pennsylvania changed the law to allow survivors of abuse in public schools to seek justice through the civil justice system. Now public schools, just like private institutions, can be held accountable for their acts or failures that lead to child abuse.

Crime survivors have a right to be compensated for the damages caused by the crime. Financial recovery in civil cases compensates crime survivors for physical injury, pain and suffering, and economic damages. Criminal defendants may have the ability to satisfy at least part of a civil judgment or settlement. There is no way to be sure unless and until an attorney investigates the case. In many cases, parties other than the criminal defendant may bear responsibility for the crime and resulting injury. If so, one or more insurance policies are likely to provide coverage for the injury and offer a source of financial recovery for the crime survivor.

Commercial Insurance

Most businesses carry commercial liability insurance which may be a source of recovery in a crime survivors’ civil case. Such insurance policies provide coverage where an insured business acted negligently and therefore caused or contributed to the injury. For example, a commercial liability insurance policy for an apartment complex owner and management company will provide coverage for a crime committed at the apartment, if the apartment complex owner or management company committed some act of negligence, like failing to secure doors to the apartment buildings after having notice of criminal activity.

Another example is where a teacher sexually abuses a student. If the school failed to act after having discovered the abuse or unreasonably failed to discover the abuse, the school’s insurance policy will provide coverage for the student’s claim against the school.

Homeowner’s Insurance

Another type of insurance which may apply in a crime survivors’ lawsuit is homeowners insurance. Many people do not know that homeowners insurance usually works like a general liability policy, meaning that the policy provides coverage when the insured homeowner commits some act of negligence. If a homeowner with insurance commits an act of negligence which causes or contributes to a crime and injury, the homeowners insurance policy may apply. Therefore, it is vital to have a qualified crime survivor’s attorney review the case to determine liability of all responsible parties, including those with homeowners insurance coverage.

Pleadings and Insurance

Every insurance company writes their own policies differently, but the majority of commercial and homeowners insurance policies do not provide coverage for the intentional or criminal acts of their insured. This means that if an insured person or business commits a crime or intends to harm another, the resulting injury will not be covered by insurance. However, negligent acts are usually covered. For example, in a civil assault case, if the facts show that the defendant acted with specific intent to harm the survivor, then that defendant’s insurance policy will not apply. Instead, if the defendant acted negligently and injured the survivor, insurance in all likelihood will apply.

Whether an insurance company provides coverage for an incident depends in large part on whether the initial pleading, the Civil Complaint, lays a proper foundation for the insured / defendant’s negligence. If the Civil Complaint pleads a claim of intentional conduct, the insurance company may deny coverage. An experienced crime survivor’s attorney will draft the pleadings with skill, so as to trigger insurance coverage and maximize recovery for the survivor.

Even if a perpetrator was not arrested, not charged, or even if a perpetrator was acquitted, a survivor of abuse may still succeed in getting justice by filing a lawsuit. However, the vast majority of survivors of abuse do not file civil claims. The main reason for this is simply lack of knowledge. Survivors of abuse do not know of the civil right to obtain financial recovery for the physical, emotional, and financial damage caused by the abuse.

Financial Recovery in Sex Abuse Cases

Another misconception is that it is impossible to obtain financial recovery from an abuser. However, each case is unique and abusers may have funds to satisfy at least part of a judgment or settlement. There is simply no way to be sure unless and until an attorney investigates the case. Also, in many sexual abuse cases, other parties may bear liability for the abuse. Any person or business acting through its employees, which failed to report or prevent the abuse after suspecting the abuse, is a potential defendant. This includes religious institutions, schools, day care centers, hospitals, and businesses. Liability is usually based upon failing to report the abuse after having knowledge of the abuse, failing to prevent the abuse, failing to conduct reasonable background checks on employees, failing to conduct a reasonable investigation, or worse, hiding the abuse. Insurance policies will usually apply and will then be a source of financial recovery for the survivor of abuse.

The Statute of Limitations in Sex Abuse Cases

Pennsylvania has changed its statute of limitations for sexual abuse multiple times , making it easier for survivors of abuse to pursue civil justice with each change. Now, if a person was sexually abused as a child they have until the age of 55 to file a civil lawsuit. If an individual was sexually abused after they turned 18 but before they turned 24 they now have until age 30 to file a civil lawsuit. Analyzing the applicable statute of limitations in a civil case can be complex and so it is important to consult with a qualified crime survivor attorney as soon as possible so that your rights are not lost.

Sex Abuse in Schools and Churches

Sex abuse is often perpetrated by people in a position of power over others, such as priests, teachers, day care center employees, doctors, or therapists. The abuse usually has long-lasting, devastating effects on the survivor and their family. Many survivors turn to drugs and alcohol, suffer from nightmares or flashbacks, have difficulty with personal relationships, and much more. The survivor’s family often suffers alongside them, whether that is seeing the trauma affect the survivor, needing to dedicate financial resources to the survivor’s recovery, or experiencing trauma themselves. Sex abuse within schools, day care centers, churches, and other institutions like hospitals or group homes is particularly problematic. This is because others within the institution, others with the power to stop the abuse, do nothing.  When others do nothing but know of or suspect the abuse or fail to reasonably investigate allegations of abuse, the institution almost always bears legal responsibility for the abuse. More often than not, the institution’s insurance policy will apply to be a source of financial recovery for the survivor.

A qualified crime survivor attorney, one with experience representing survivors of abuse, will conduct a careful, thorough investigation to determine liability of others beyond the perpetrator. An abuse survivor’s civil lawsuit does not end with the perpetrator. It most certainly can and often does include institutions, like a church, diocese, school, or day care center, which allowed the abuse to happen or continue. Civil justice for the abuse survivor begins with accountability of those who negligently allowed the abuse to happen or continue.

Mandatory Reporting of Suspected Child Abuse

Sexual or physical abuse within institutions is an unfortunate but common problem. Teachers, coaches, principals, priests, doctors, and therapists, the very people who are required to report abuse, oftentimes are perpetrators. In other cases, those same people who are required to report abuse observe signs of the abuse or have suspicions of the abuse, but do nothing. Under Pennsylvania law, certain classes of professionals are required to report suspected child abuse, such as medical providers, teachers, school administrators, members of the clergy, and police officers. Section 6311 of Pennsylvania’s mandatory reporting law clearly states that any person who in the course of their work comes into contact with children and has any reasonable basis to suspect child abuse, must report the abuse.

In addition, the statute mandates that an employee who is required to report must report the abuse to a supervisor or manager, who then has a duty to report the abuse to child protective services. Failure to report suspected child abuse is a crime. This mandatory reporting law forms the standard of care which institutions must follow in situations of suspected abuse. If an institution like a hospital or school fails to report suspected child abuse and subsequent abuse occurs, then there is a strong case of liability against the institution in a civil suit by an abuse survivor.