Civil Justice For Crime Victims in Texas
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Civil Justice For Crime Victims in Texas

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A presentation by former Chief of Police and Prosecutor ATTORNEY KEVIN R. MADISON on Civil Causes of Action for Crime Victims against their attackers and a list of crime victim rights and agencies in ...

A presentation by former Chief of Police and Prosecutor ATTORNEY KEVIN R. MADISON on Civil Causes of Action for Crime Victims against their attackers and a list of crime victim rights and agencies in Texas.

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  • For more information on protective orders, see the 10-minute mentor presentation on “Protective Orders in Family Violence Cases” by Charles Geilich
  • Usually the Sexual Assault Forensic Examination is performed by a Sexual Assault Nurse Examiner (S.A.N.E.) rather than a physician.
  • The three offenses that qualify are: sexual assault, agg sexual assault of an adult or child, or indecency with a child by contact CODIS is a nationwide DNA database used to identify offenders.
  • See Ten-Minute Mentor program on “Crime Victims’ Compensation” by Suzanne McDaniel for more information. If victim is in Section 8 housing, the Section 8 administrators may also help with victim relocation – this is apart from the crime victims’ compensation fund. Victims must cooperate with prosecution to be eligible for CVC funds. If the victim becomes uncooperative during the proceedings, any CVC funds must be reimbursed. Relocation expenses may be available if the sexual assault occurred in the victim’s residence.

Civil Justice For Crime Victims in Texas Civil Justice For Crime Victims in Texas Presentation Transcript

  • JUSTICE FOR CRIME VICTIMS IN TEXAS: CIVIL ACTIONS AGAINST CRIMINAL PREDATORS © Attorney Kevin R. Madison Austin, Texas (512) 708-1650 www.kevinmadison.com
  • Criminal Process
    • Report to Law Enforcement
    • Police Investigate Case
    • Presentation to Grand Jury
    • Grand Jury Indicts
    • Criminal Trial Process Begins
    • Months of Time or Years Pass
    • Court Re-sets and Continuances
    • Trial or Plea Bargain Agreement
    • Dismissal of Hard to Prove Cases
  • Civil Litigation...Why?
    • Catharsis- Regaining Control for Victim
    • Public awareness of Perpetrator
    • Possibility of Settlement or Judgment
    • Faster Track than Criminal Case
    • Easier Burden of Proof: Preponderance of the Evidence
    • Monetary Damages
  • SIMPLE ASSAULT Texas Penal Code, Section 22.01
    • Defendant Intentionally, Knowingly, or Recklessly made offensive or provocative contact with Victim
    • Statute of Limitations: Two (2) Years TCPRC, Sec. 16.003(a)
    • Actual Damages: Medical Bills
    • Mental Health Counseling Bills
    • Mental Anguish and Physical pain
    • Physical Impairment
    • Lost Wages
    • Punitive Damages: The greater of: (1) 2x economic Damages award + non-economic damages award or $200,000.
  • SIMPLE ASSAULT Texas Penal Code, Section 22.01
    • Groping Case Against U.T. Graduate Student filed in October 2008
  •  
  • INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
    • Elements:
    • Defendant Acted Intentionally or Recklessly
    • Conduct “EXTREME & OUTRAGEOUS”
    • Conduct Caused Pl’s Emotional Distress &
    • Plaintiff’s Emotional Distress was “SEVERE”
  • Intentional Infliction of Emotional Distress
    • Statute of Limitations: Two (2) Years
    • TCPRC, Sec. 16.003(a)
    • Actual Damages: Medical Bills
    • Mental Health Counseling Bills
    • Mental Anguish & Physical pain
    • Physical Impairment
    • Lost Wages
    • +
    • Punitive Damages
  • Intentional Infliction of Emotional Distress
    • Defendant sexually propositioned motorist who was stranded with disabled car and continued to harass her on roadway. MORGAN 27 SW 3d 928
    • Employee Job Recruiter locked door to interview room and sexually harassed prospective female employee
    • Employer commented on employee’s breasts and buttocks B.T. vs. Dr. Carlton Newman
    • Uncle of victim wrote letters to victim proposing to continue sexual relations with her that he initiated when she was only 14 years old. Confidential case settled by Mr. Madison against wealthy Pedophile.
  • ASSAULT WITH BODILY INJURY Texas Penal Code, Section 22.01
    • Defendant Intentionally, Knowingly, or Recklessly made contact with
    • Victim and Caused Bodily Injury
    • Statute of Limitations: Two (2) Years TCPRC, Sec. 16.003(a)
    • Actual Damages: Medical Bills
    • Mental Health Counseling Bills
    • Mental Anguish and Physical pain
    • Physical Impairment
    • Lost Wages
    • Punitive Damages: The greater of: (1) 2x economic Damages + non-economic damages award: or
    • $200,000.
  •  
  • AGGRAVATED ASSAULT Texas Penal Code, Section 22.02
    • Defendant Intentionally, Knowingly, or Recklessly
    • Made Contact with Victim and:
    • Caused Serious Bodily Injury or
    • Displayed Deadly Weapon
    • Statute of Limitations: Two (2) Years
    • TCPRC, Sec. 16.003(a)
    • Same damages as Assault with Bodily Injury
    • Punitive Damages: NO LIMITATION
    • TCPRC, Sec. 41.008(c)
  • SEXUAL ASSAULT Texas Penal Code, Section 22.011
    • Defendant Intentionally or Knowingly
    • Causes penetration of anus or vagina without consent
    • Penetrates mouth of another by Sexual Organ; or
    • Causes Sexual organ of victim to penetrate mouth, anus or sexual organ of Defendant or another Person.
  • SEXUAL ASSAULT Texas Penal Code, Section 22.011
    • Statute of Limitations: Five (5) Years
    • TCPRC, Sec. 16.0045
    • Actual Damages: Medical Bills
    • Mental Health Counseling Bills
    • Mental Anguish & Physical Pain
    • Physical Impairment
    • Lost Wages
    • Punitive Damages:NO LIMITATION
    • TCPRC, Sec. 41.008(c)
  • SEXUAL ASSAULT BY DOCTOR
  • AGGRAVATED SEXUAL ASSAULT Texas Penal Code, Section 22.021
    • Sexual Assault of a “Child” under 14 y.o.
    • Sexual Assault of Elderly Person (65 y.o.)
    • Sexual Assault of a Disabled Person
    • Causes Serious Bodily Injury or Attempts to Kill Victim
    • Threatens to kill, injure or kidnap any person
    • Uses a Deadly Weapon
    • Administers “Rohypnol” to Victim
  • Sexual Exploitation of Patient by a Mental Health Provider
    • TCPRC, Chapter 81:
    • Mental Health Service Providers such as Licensed Social Workers, Chemical Dependency Counselors, Licensed Professional Counselors, Licensed Marriage and Family Therapists, Clergy, Physicians, and Psychologists are Liable to patients and former patients for damages for sexual exploitation if the patient or former patient suffers a physical, mental, or emotional injury caused by, resulting from, or arising out of:
  • SEXUAL EXPLOITATION BY MENTAL HEALTH CARE PROVIDER TCPRC, Chapter 81
    • (a) Sexual Contact Between patient and Provider;
    • (b) Sexual Exploitation of patient by Provider; or
    • (c) Therapeutic Deception of patient by Provider.
  • Sexual Exploitation of Patient by a Mental Health Care Provider
    • Actual Damages : Medical Bills
    • Mental Health Counseling Bills
    • Mental Anguish & Physical Pain
    • Physical Impairment
    • Lost Wages
    • + Attorney’s Fees
    • + Punitive Damages
    • Statute of Limitations: Three (3) Years TCPRC 81.009
  • Sexual Exploitation of Patient by a Mental Health Care Provider
    • TCPRC, Section 81.004:
    • A Plaintiff who prevails may recover actual damages, including damages for mental anguish even if an injury other than mental anguish is NOT shown.
  • Sexual Exploitation of Patient by a Mental Health Care Provider
    • TCPRC, Section 81.005(a):
    • It is NOT a defense that the sexual exploitation of the patient or former patient occurred:
    • (1) with the consent of the patient;
    • (2) outside the therapy or treatment sessions; or
    • (3) off the premises regularly used by the mental health services provider for therapy or treatment.
  • Stalking
    • STALKING
    • TCPRC, Section 85.002:
    • Defendant is liable to victim for damages arising from “Stalking” of the claimant by the defendant.
  • Sexual Harassment
    • Consider thinking outside “the box”
    • Consider filing suit under common law causes of action
    • Intentional Infliction of Emotional Distress
    • If there is improper touching, think about filing “Assault by Contact” claim
  • NON-DISCHARGEABILITY IN BANKRUPTCY PROCEEDINGS
    • 11 USCS § 523(a)(6)
    • §523.  Exceptions to discharge
    • (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title [11 USCS § 727 , 1141 , 1228(a) , 1228(b) , or 1328(b) ] does not discharge an individual debtor from any debt--   
    • (6) for willful and malicious injury by the debtor to another entity or to the property of another entity;
  • Tips to Help Sexual Assault Victims
    • This is a list of top legal rights that can assist Sexual Assault Victims.
    • This list is not meant to be comprehensive, but rather is a list of legal rights that most crime victim attorneys feel are important to help our crime victim clients.
    • Magistrate’s Order for Emergency Protection, TCCP Article 17.292.
    • Originally for family violence victims, but now includes victims of sexual assaults , dating violence, and stalking
    • Order valid for 31-61 days, unless deadly weapon used then order extends to 91 days.
    • Judge can issue on own motion or request by victim or police officer.
    Emergency Protective Orders Texas Code of Criminal Procedure, Article 17.292
    • Prohibit a defendant from:
      • Committing further acts of violence against victim
      • Communicating with victim in threatening or harassing manner
      • Going near victim’s home, school, or place of employment
      • Possessing a firearm
      • Punishable by up to year in jail + $4,000 fine
  • Sexual Assault Exams Texas Code of Criminal Procedure, Article 56.045
    • Victims have right to sexual assault examination that is paid for by the state.
    • Victims have the right to have an advocate from a sexual assault program with them during the sexual assault forensic medical examination.
  • Sexual Assault HIV Testing Texas Code of Criminal Procedure, Article 21.31
    • If requested by victim or ordered by the court, testing is mandatory for anyone indicted for sexual offense.
    • Results are released to local health authority
      • Health authority reports the results to victim
    • Results of the test cannot be used in prosecution
    • This testing is different from CODIS database testing for offenders.
  • Pseudonyms
    • Texas Code of Criminal Procedure, Article 57.02
    • A victim of an alleged sexual assault can use a pseudonym in public court documents. Police officers required to offer forms to sexual assault victims to use a pseudonym.
    • Pseudonym means a set of initials or fictitious name that designates the victim in all public records of a criminal proceeding. e.g. “JRD” or “Jane Doe”
    • The pseudonym is used in police report, indictment, and during trial to protect true identity of sexual assault victim.
  • Address Confidentiality
    • Texas Code of Criminal Procedure, Article 56.82
    • The Office of the Attorney General of Texas has established an address confidentiality program for victims of sexual assault, stalking, and family violence.
    • The OAG designates a P.O. box address for victims to use and then forwards all mail to victims.
    • The OAG serves as agent for service of process.
  • Crime Victims’ Compensation Texas Code of Criminal Procedure, Article 56.31 – 56.64
    • Victims of sexual assaults and other violent crimes are entitled to apply for crime victims’ compensation benefits through the Attorney General’s office. Financial benefits may include assistance with:
    • medical treatment
    • mental health counseling
    • relocation expenses
  • Victim Information and Notification Everyday – V.I.N.E.
    • Free service that notifies registered users of court settings and changes in custody status.
    • Allows crime victims to be notified if a defendant is released on bond or when they transfer to TDC.
  • Victim Information and Notification Everyday – V.I.N.E.
    • Call 1.877.TX4.VINE from a touchtone phone
    • Once you register, VINE will automatically notify you of court settings or custody status changes by telephone or by email.
    • Available in both English and Spanish
  • Crime Victim Bill of Rights Texas Code of Criminal Procedure, Article 56.02
    • Crime Victim Rights include:
    • Protection from threats
    • Notification of all court proceedings
    • Information on victim compensation fund
    • Right to provide information on pre-sentence report
    • Right to make victim impact statement to court
    • Separate waiting area during court proceedings
  • Victim Rights Letter to Prosecutor
    • My office sends out a notice letter to the prosecutor invoking the Crime Victim Rights Act
    • A copy of this letter is filed with the Court
    • TCCP, Art. 56.02 Texas Crime Victims’ Act
  • Additional Resources
    • State Bar of Texas Crime Victims’ Committee webpage
    • www.texasbar.com/crimevictims
    • www.peopleagainstviolentcrime.org/home.html
    • www.taasa.org
    • www.texasadvocacyproject.org
    • www.oag.state.tx.us /victims
    • www.mencanstoprape.org
    • www.rainn.org Rape, Abuse & Incest Network
    • www.vaw.umn.edu Violence Against Women Online Resources
    • www.nsvrc.org National Sexual Violence Resource Center
    • National Sexual Assault Hotline 800.656.HOPE
    • Private Civil Attorneys who represent Crime Victims
  •  
  • Contact Information:
    • Attorney Kevin R. Madison
    • Austin, TX 78709-1059
    • (512) 784-5237 Cell
    • (512) 708-1650 Office
    • [email_address]
    • www.kevinmadison.com