Yes, you can file a civil sexual assault lawsuit while your attacker’s criminal case is still pending. The catch is timing. A judge may pause, or “stay,” your civil case until the criminal case ends, and what happens in the criminal case can shape your lawsuit.
Every case is different. Here is what usually happens and why.
Why a Civil Sexual Assault Case May Be Paused
There are a few reasons a court may put your lawsuit on hold while the criminal case is pending. Each one also affects what you can use to prove your case.
- The Fifth Amendment. Your attacker has a constitutional right to refuse to answer questions that could be used against them in the criminal case. You may know this as “taking the Fifth.” Defendants often argue they shouldn’t have to give a civil deposition while criminal charges are pending, and many judges accept that argument.
- Police evidence. Evidence the police collect can be shared with your attorney in the civil case and used to help prove your claim against your attacker.
- A criminal conviction. If your attacker pleads guilty or is convicted of sexual assault, that result can be used against them in your civil case. They are very likely to be barred from arguing that the assault didn’t happen after a criminal court found that it did. With a guilty or no contest plea, the admitted facts need a careful look, because they may not match everything in your lawsuit.
Civil vs. Criminal Burdens of Proof
The civil burden of proof is much lower than the one prosecutors face. A criminal conviction requires proof “beyond a reasonable doubt,” which is a high bar. In a civil case, a jury can find the defendant liable if it believes it is more likely than not that the defendant committed the assault. That standard is called “preponderance of the evidence.”
For a side-by-side comparison, read Civil vs. Criminal Sexual Assault Cases in Colorado. To see what you will need to show, read What Evidence Is Needed for a Civil Sexual Assault Lawsuit? Timing also matters for your filing deadline, which is covered in Colorado Civil Sexual Assault Statute of Limitations.
Deciding When to Sue Your Attacker
Every case is different, and so is every survivor. Some of our clients are wary of suing their attacker even after a successful prosecution. There is no single right answer.
We will give you clear guidance on what to expect in your civil case, including what could happen if we file while the criminal case is still going. You decide when you’re ready. Our job is to make sure you have what you need to make that call.
The first step is a free case evaluation. Call Greer Law at 303-331-6460 or contact us online. We’ll talk through what happened, answer your questions and give you the time you need to decide.
