National Indian Country Clearinghouse on Sexual Assault

left barChild CustodyOne of the biggest advantages a victim of sexual violence can gain through civil law is suing the perpetrator in civil court.  Part of the general practice of civil law includes a specialty called “torts.”  Although the legal term may sound strange, “torts” means “twisted” or “wrong.”  Thus, under civil law, perpetrators of sexual assault can be punished for their twisted and wrong acts. 


The money victims get from perpetrators under tort law is referred to as “damages.”  There are a wide variety of “damages” available to these victims.  For example, victims can collect for medical expenses they have incurred as a result of the assault and compensation for pain and suffering.  Basically, the victim can recover any money that she lost as a result of her sexual assault.  This includes money used to pay for traditional healing ceremonies.


Further, because society considers sexual assault so wrong and evil, the victim is also entitled to “punitive dam

ages” from the perpetrator. These are damages that are not related to any of the victim’s pain, suffering, hardship, or expenses. Rather, these are damages that are awarded to the victim just because the perpetrator did something considered very bad by the community.


The victim may recover services from the perpetrator in addition to or instead of money damages.   Under custom and tradition, many tribes ordered the perpetrator of a violent crime to perform certain services for the victim or for the community as part of the means of making up for his bad behavior.  For example, if the victim lives in a cold place, under custom and tradition the perpetrator may have been ordered to chop and carry firewood to the victim’s house throughout the winter.  Another example is that if the victim is unable to provide food for herself or her family because of the perpetrator’s violence, the tribal court can order the perpetrator to bring fish that he caught to the victim and her family.  


Because of high unemployment in many American Indian/Alaska Native communities, non-monetary damages in the form of services can be quite effective.  However, victims, advocates, legal counsel and the courts should ensure that any services rendered by the defendant do not compromise or negatively impact victim safety.


If the victim would like to recover non-monetary damages from the perpetrator, an elder can be consulted about the customs and traditions of the tribe.  The elder can then testify in court about how the community traditionally dealt with offenders and what types of punishment, restitution, and other consequences were given to perpetrators.
In addition to being able to recover monetary damages or services from the perpetrator, the victim may also be able to recover compensatory damages from responsible third parties, in certain situations.  For example, if the victim is attacked at a mall and the mall administrators know that there is a history and pattern of women being attacked upon the premises, the mall may be liable for damages to the victim.  If a third party, such as a shopping center, apartment complex, hotel, or a gym, is responsible for damages to the victim, the victim can recover damages for pain and suffering, medical expenses, traditional healing ceremonies, and other expenses the victim incurred as a result of the attack.


For more information about tort law and tort remedies, please refer to the National Crime Victim Bar Association at http://www.victimsofcrime.org/our-programs/national-crime-victim-bar-association

 

National Indian Country Clearinghouse on Sexual Assault, a project by the Southwest Center for Law and Policy © 2013

This project was supported by  Grant No. 2011-TA-AX-K045 awarded by the Office on Violence Against Women. Points of view in this document are those of the author and do not necessary represent the official position of the U.S. Department of Justice. All rights reserved. | Privacy policy