Sexual Assault Awareness Month and Things You Should Know About Consent

April is a month to reach out to the public and educate the public about sexual violence. This is also known as the Sexual Assault Awareness Month or “SAAM.” This years theme is “I Ask” and is focused on asking to obtain consent before engaging in sexual activity. The National Sexual Violence Resource Center notes “The Campaign theme, I Ask, champions the message that asking for consent is a healthy, normal, and necessary part of everyday actions.”

Ross Law is doing our part to get out the word. As a law firm that represents sexual assault survivors, it is imperative to us to do what we can to prevent or deter sexual violence by holding people and entities responsible for their actions and failures. Here are some useful tips and resources:

Consent and Sex:

What is it: Someone giving permission for something to happen or to do something.

When to Ask for Consent Obtain consent before engaging in sexual conduct: Ask for consent before beginning in sexual activity. This includes kissing, cuddling and any kind of sex. Remember to continually ask for consent as the sexual contact increases or changes. This ensures you are not putting the other person in a situation where they are feeling pressured or you are taking advantage of them by escalating the situation.

How to Ask: Ensure that when you are communicating with the other person that you make it clear that it is perfectly fine if they say “no.” You do not want to be pressuring the person. If you are not clear if the other person has consented ask again in a different way.

Click Here for More Tips on obtaining consent prior to engaging in sexual activity.

Consent, Sex, and Digital Technology

Why is This Important: Technology has brought things that used to happen behind closed doors out into the open. People do things and say things through their phones or computers that they would never do or say to another person if they were in front of them. That is why it is important to understand there are boundaries that must be respected when communicating with another.

How often to text: You don’t want to be considered a creeper by the other person. Fifty texts a day for some people is great, while for others it is overwhelming. Talking about how often to text in general terms may help you understand your partner’s preferences. This may also help you understand how often they prefer to respond to texts. This conversation may save the anxiety from thinking “am I texting too much” or “why haven’t they responded yet?”

What to Text-Sexting: Obviously not everyone is comfortable with “sexting.” Sexting means sending sexual photos, videos, or messages. Sexting can be extremely disturbing to the recipients if the recipient hasn’t given the sender express consent to send them. Imagine being at work when someone sends a nude person of themselves. Some people would be embarrassed or horrified upon receipt of this photograph. Others, may be fine with it. This is why is is critical to obtain another’s consent before sexting with another.

Consent Violations: If someone sends a nude photo, DO NOT share it with others. It is a breach of their trust, but you may get sued or prosecuted if you do. Also, remember that it is a crime to store or share sexual photos of someone under 18, even if you are also under 18. Parents need to ensure their kids understand this.

Click Here for more information.

Consent and Intoxication:

Consent and an Intoxicated or Impaired Person This is an area where people should simply steer clear of. Engaging in sexual activity with a person that is intoxicated, mentally defective, mentally incapacitated, or physically helpless will put you at risk or being arrested and prosecuted and being sued in civil court for hundreds of thousands or millions of dollars. You do not want to be the person claiming that you thought the other person was sober enough to consent, so you thought it was OK. This is a time when simply asking for consent is not enough, because the other person doesn’t have the mental capacity to give consent.

Talk to Your Kids About Consent:

Credit: Rainn.org

This is also a good month to discuss consent with your children. The Rainn Group has some good tips regarding “safe dating” for teens, college students, and kids. The idea is to get kids comfortable with the idea that they are in charge of their own body, and that they have the power to say no, even, if they change their mind. Click here for more tips.

If you or someone you know has been a victim of sexual violence please contact Oregon crime victim lawyer Jeremiah Ross and Ross Law PDX for your free case evaluation at 503.224.1658. Here at Ross Law we have represented people that have been sexually assaulted and abused in various cases throughout Oregon. Please call us to discuss your rights and your options. Please also remember to not solely rely on this post for guidance or information regarding obtaining consent and sexual violence.

Victim of a Crime? Know Your Rights...

The Criminal Justice system can be a confusing, intimidating, and scary place for crime victims. Many victims do not know what is expected from them, who the lawyers are that are involved, and more importantly they don't know their rights.  Many times the District Attorney's office does their best to keep victims involved in the case, but DA's and victim advocates are often overworked and simply do not have the time or resources to ensure every victim's rights are understood and honored. This post is meant to provide you some information to assist you in asserting your rights.   Below is a list of things you should know if you were a crime victim:

Who Is The District Attorney:  The District Attorney is an attorney that represents the State of Oregon in criminal matters.  They are also called prosecutors, DAs, or DDAs.  Basically each county has a District Attorney (DA).  That person has an office that employs deputy DA's to hold people responsible that have been accused of breaking the law.  

Is the DA the Victim's Attorney:  No, the DA represents the State of Oregon.  The victim is a citizen of the State and has unique rights under the law, but the DA is not the victim's lawyer.  If you believe you the defendant should be responsible for paying for your harms and losses you should seek a "civil lawyer" such as myself to represent you.  The criminal justice system and the Civil Justice System are not the same.  For example, the District Attorney cannot obtain damages for emotional harm, but a civil lawyer can. For more information click here.

Who are "Victim Advocates:"   District Attorneys offices have persons that are victims and advocates that do their best to ensure victims rights are honored.  In Multnomah County the DA has a Victim Assistance Program or VAP.  To learn more click here.

What are Oregon Crime Victim's Rights:  Oregon Victims have numerous rights.  I have posted some, but not all, of the rights below.   Please remember the law is constantly changing and it is best to consult with an attorney or the District Attorney to ensure the law has not changed.  Do not rely solely on this post.  With that said, see the rights below:

1. Crime Victims Must Be Informed of Their Rights:  A “law enforcement agency” shall notify a crime victim about his or her rights as soon as reasonably practicable. Or Const, Art I, § 42(1)(g); ORS 147.417(1). 
2. If You Request, Then You Must Be Informed of All Critical Stages of the Proceedings: A crime victim has, upon specific request, the right to be informed in advance of any critical stage of the proceedings held in open court when the defendant or alleged youth offender will be present and to be present at any such stage of the proceedings. Or Const, Art I, § 42(1)(a) 
3. The DA Must Account for Your Schedule when Setting a Trial Date: “When resetting any trial date or setting any court hearing requiring the presence of the victim, the court shall take the victim into consideration. The court shall inquire of the district attorney as to whether the victim has been informed of the prospective date and whether that date is convenient for the victim.” ORS 136.145
4. If Requested, You Have a Right to Be informed if The Defendant's Probation May be Revoked: Right to Notice of Probation Violation/Revocation Hearings Upon request, a crime victim has the right “to be notified of any hearing before the court that may result in the revocation of the defendant’s probation for a felony or person Class A misdemeanor.” ORS 137.545(11). 
5. You Have a Right to Be Present at Critical-Stage Proceedings if Requested: A crime victim has, upon specific request, the right to be present at any critical stage of the proceedings held in open court when the defendant or alleged youth offender will be present and to be present at any such stage of the proceedings. Or Const, Art I, § 42(1)(a).
6. You Right to Have a Person with you (with some exceptions): The victim of a person crime who was at least 15 years old when the crime is committed, may select a personal representative to accompany the victim to phases of the investigation and prosecution of the crime except for grand jury proceedings and certain child-abuse assessments. ORS 147.425. 
7. If English is Your Second Language You Have a Right to Court Appointed Interpreter “In any criminal proceeding, the court shall appoint a qualified interpreter and make available appropriate assistive communication devices whenever it is necessary to interpret the proceedings to a victim who is a person with a disability and who seeks to exercise in open court a right that is granted by Article I, section 42 or 43, of the Oregon Constitution, including the right to be present at a critical stage of the proceeding.” 
8. You Have a Right to Be Heard at a Pretrial Release Hearings if Requested: Under the Oregon Constitution a crime victim has, upon specific request, the right to “be heard at the pretrial release hearing.” Or Const, Art I, § 42(1)(a). 
9. You Have a Right to Be Heard at Sentencing A crime victim has the constitutional right to be heard “at the sentencing or juvenile court delinquency disposition.” Or Const, Art I, § 42(1)(a). Under statute, a crime victim has the right at sentencing “to reasonably
   express any views concerning the crime, the person responsible, the impact of the
   crime on the victim, and the need for restitution and compensatory fine.” ORS
   137.013. A trial court must inquire whether the victim wishes to be heard before
   imposing sentence. ORS 147.512(3). 
10. You Have a Right to Be Heard at DUII Diversion Hearing: If a DUII offense involves damage to property of a person other than the defendant, the victim of the property damage has a right to be present and to be heard at any hearing on a petition for a diversion agreement. ORS 813.222(1). 
11. You Have a Right to Consult with the DA in any Plea Negotiation involving a Violent Felony: A crime victim has the constitutional right “to be consulted, upon request, regarding plea negotiations involving any violent felony.” Or Const, Art I, § 42(1)(f). In prosecutions involving violent felonies, a prosecutor must—if requested by the victim—make “reasonable efforts to consult the victim before making a plea offer and before entering into a final plea agreement.” ORS 147.512(2)(a).
12. You Have a Right to a Speedy Disposition: By law, crime victims have the rights to “have the trial or adjudication, including the imposition and execution of the sentence or disposition, conducted with all practicable speed” and “to the prompt and final conclusion of the criminal or juvenile delinquency proceeding in any related appellate or post-judgment proceeding.” ORS 147.430(a)-(b); see also ORS 138.627(1)(a) (victims have the right to have their “schedule taken into account [by the trial court] in scheduling . . . post-conviction proceedings”).  T
13. You Have a Right to Records of Proceedings: A crime victim has a statutory and constitutional right to a copy of the record of a criminal proceeding. See Or Const, Art I, § 42(1)(e) (a crime victim has “[t]he right to have a copy of a transcript of any court proceeding in open court, if one is otherwise prepared”); ORS 147.419 (a crime victim may obtain a copy of a transcript or audio or videotape of criminal proceeding held in open court at the victim’s expense).
14. You Have a Right to Information about the Defendant: Under the Oregon Constitution, a crime victim has “[t]he right, upon request, to obtain information about the conviction, sentence, imprisonment, criminal history and future release from physical custody of the criminal defendant or convicted criminal and equivalent information regarding the alleged youth offender or youth offender[.]” Or Const, Art I, § 42(1)(b).
15. You Have Right to Information about HIV or Other Communicable Diseases: A victim of a crime involving “the transmission of bodily fluids from one person to another” can request that defendant submit to “a test for HIV and any other communicable disease.” ORS 135.139(1).
16. You Have a Right to Information about Emergency Contraception: A sexual assault victim has the right to “unbiased, medically and factually accurate written and oral information about emergency contraception” from the hospital providing the victim care. ORS 435.254(1). 
17. Right to Information in DUII Proceedings Where You Were in a Crash with a DUII Driver:  In any prosecution arising from an automobile collision in which the defendant is alleged to have been DUII, the prosecuting attorney shall make available to a victim, upon request, reports and information disclosed to the defendant. ORS 135.857. That requirement applies to juvenile proceedings. ORS 419C.270 
18. You Have a Right to Refuse to Speak or Communicate with Anyone Representing the Defendant: Under the Oregon Constitution, crime victims have “[t]he right to refuse an interview, deposition or other discovery request by the criminal defendant or other person acting on behalf of the criminal defendant provided, however, that nothing in this paragraph shall restrict any other constitutional right of the defendant to discovery against the state.” Or Const, Art I, § 42(1)(c). Under statute, crime victims “may not be required to be interviewed or deposed by or give discovery to the defendant or the defendant’s attorney unless the victim consents.” ORS 135.970(3). A defense attorney must inform victims of the identity and capacity of persons contacting the victim on behalf of the defense and the victim’s right to have “a district attorney, assistant attorney general or other attorney or advocate present during any interview or other contact,” ORS 135.970(2). 
19. If You Were Raped, You Have the Legal Protection to Prevent the Defense From Asking about Your Reputation or Opinion of Past Sexual Behavior. This is called the Rape-Shield Law. In a prosecution for rape, sodomy, unlawful sexual penetration, or sexual abuse, or in a prosecution for an attempt to commit one of these crimes, the following evidence is not admissible: Reputation or opinion evidence of the past sexual behavior of an alleged victim; or reputation or opinion evidence presented for the purpose of showing that the manner of dress of an alleged victim incited the crime or indicated consent. In a prosecution for these crimes or attempt to commit one of these crimes, evidence of a victim’s past sexual behavior other than reputation or opinion evidence is also inadmissible unless admitted in accordance with the Oregon Evidence Code and is evidence that relates to the motive or bias of the alleged victim, is necessary to rebut or explain scientific, medical or testimonial evidence offered by the state, is necessary to establish the identity of the victim or is otherwise constitutionally required to be admitted. ORS 40.210. Oregon Evidence Code (OEC) Rule 412
20. You Have a Right to Be Safe and Protected from the Defendant: Under the Oregon Constitution, a crime victim has “[t]he right to be reasonably protected from the criminal defendant or the convicted criminal throughout the criminal justice process” and “[t]he right to have decisions by the court regarding the pretrial release of a criminal defendant based upon the principle of reasonable protection of the victim and the public, as well as the likelihood that the criminal defendant will appear for trial.” Or. Const. art I, § 43(1). 
21. The Court Must Order No Contact with the Victim at Pre-Trial Release Hearing: When a defendant is released pretrial, the trial court or releasing authority must include a condition that defendant have no contact with the victim. See ORS 135.970 (4)(a) 
22. You Have a Right to Restitution (Money), but it is limited to out of pocket expenses: Under the Oregon Constitution, a crime victim has “[t]he right to receive prompt restitution from the criminal convicted criminal who caused the victim’s loss or injury.” Or Const, Art I, § 42(1)(d). Upon proof of “nature and amount of damages,” a victim is entitled to full restitution for “economic damages” caused by a defendant’s criminal conduct unless the victim consents to a lesser amount. ORS 137.106(1). Economic damages are: objectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services, burial and memorial expenses, loss of income and past * * * impairment of earning capacity, reasonable and necessary expenses incurred for substitute domestic services, recurring loss to an estate, damage to reputation that is economically verifiable, reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less. ORS 137.103(2); ORS 31.710(2)(a). 
23. You May Have a Right to a Compensatory Fine:  A court may order compensatory fines payable to a crime victim, which may be imposed in addition to statutory restitution, “as a penalty for the commission of a crime resulting in an injury for which the person injured by the act constituting the crime has a remedy by civil action[.]” ORS 137.101. This is a convoluted area of the law in which the statute arguably allows the judge to impose a fine and instead of the fine being paid to the State of Oregon the fine is paid directly to the Victim.  Their are nuances regarding how this is done, and a District Attorney or Civil Lawyer such as myself should be contacted.  Feel free to call me at 503.224.1658.
24. The Crime Victim Compensation Fund May Pay for Medical Bills, Counseling, but it is limited: A crime victim may be eligible for compensation through the Criminal Injuries Compensation Account administered by the Department of Justice. See ORS 147.035 (discussing compensable losses). An emergency award granted “pending a final decision in [a compensation] claim” may be available. ORS 147.055. Oregon law specifically provides for compensation for HIV testing and counseling when a crime involves the transmission of bodily fluids, ORS 135.139(8), and for a sexual-assault medical assessment. ORS 147.395. 

The bottom line is if you are a crime victim you have rights.  You should assert them.  Too often defendant's rights appear to trump victim's rights.   That should not occur if you assert your rights and the District Attorney and the Court honors your rights.  If you have any questions about your rights, call me for a free crime victim consultation at 503.224.1658.   PLEASE REMEMBER THE LAW IS CONSTANTLY CHANGING AND THESE RIGHTS ALSO CHANGE.   Please consult with a lawyer or District Attorney to learn your actual rights.   This post, this blog, and this web-site may be considered attorney advertising.  

What is the Difference Between a Civil Case and a Criminal Case?-15 Things Oregon Crime Victims Should Know

As a former prosecutor I rejected or "no complainted" various criminal cases.   Many of these cases lacked evidence to prove beyond a reasonable doubt that the suspect had committed a a crime.   Sometimes these were big cases that involved sexual assault, rape, assault, battery, or wrongful death caused by a negligent or DUII driver.   Those cases were always difficult to reject, because there was a victim that had been harmed, but there just wasn't enough evidence to support pursuing a conviction.   That meant that the wrongdoer would never be punished for the harm that they caused.  However, many of those cases would have been great Civil Cases.  That means the injured person or their estate could have received compensation (money) for the harms that the wrongdoer inflicted, even if the wrongdoer was never charged with a crime. 

Civil cases are much different than criminal cases. It is very important for a person that has been the victim of a crime to understand the difference between the two, so they can know all of their legal rights. Below are some of the main differences between Civil Law and Criminal Law in Oregon: 

1. What is The Main Difference Between a Civil Case and a Criminal Case In Oregon? Civil cases are about holding the wrongdoer(s) accountable by compensating the victim.  Basically the wrongdoer(s) are ordered to pay the victim for the harms and losses they caused the victim.  In Criminal Cases the case is about holding the wrongdoer accountable by punishing the wrongdoer.  Basically the wrongdoer goes to jail, is on probation, or is put in prison.  In a Civil Case the focus is on the harms and losses the wrongdoer caused the victim.  In a Criminal Case the focus is on the acts the defendant committed that violated the law. 
2. Is There A Civil Case If The Person Is Being Charged With A Crime?  In a civil case an injured person files a lawsuit against the person(s) or entities (government organizations or corporations) that caused the harm.  Being charged with a crime does not trigger a civil lawsuit.   In a Criminal Case the DA files documents to attempt to convict the wrong doer of a crime.  That does not trigger a civil lawsuit.  To Trigger a Civil lawsuit a person, usually a civil lawyer, files a complaint on behalf of the victim who is called the Plaintiff.
3. Is The DA My Lawyer If I Was A Crime Victim?  In a Civil Case the injured person has their own lawyer that represents only the injured person(s).  In a criminal case the State of Oregon has a "prosecutor" (sometimes called a DA) that represents the State.  The Prosecutor may take the victim's wishes into account regarding plea bargains and other issues, but at the end of the day the Prosecutor does not represent the victim.  In a civil case the civil lawyer only looks out for the crime victim's interest.
4. Who Is the Victim's Advocate in a Criminal Case?  In Oregon the Victim's Witness Advocate is an employee of the District Attorney's office.  They do a great job of attempting to keep victims informed of what is going on in the Criminal Case, and trying to create a dialogue between the victim and the prosecutor handling the case.  Victim Witness Advocates often will advise victims of criminal court dates (bail hearings, trial dates, sentencing dates), and will often inform the victim of their rights in the criminal proceedings.  However, this does not always happen with every case.  
5. Do I Get A Victim's Advocate in a Civil Case?  Yes.  In a civil case your lawyer is your advocate.   There is not an employee of the government that will advocate on your behalf.  You will have a lawyer that is pursuing your case for you and asserting your rights. 
6. Can I Get A Civil Lawyer To Be My Victim's Advocate In A Criminal Case?  Yes, as the victim of a crime you have a right to have a civil lawyer as your representative.   This is strongly encouraged to ensure the victim's rights are honored.   However, 
7. The DA "No Complainted" My Case, Will A Civil Lawyer Take The Case?  It depends, it maybe that there is not enough evidence to hold the wrong doer(s) accountable in a civil case.  It may also be that none of the wrongdoers has any money, so it would not be worth pursuing a lawsuit because at the end of the day no one would receive any compensation.  It is best to call a lawyer like myself at 503.224.1658 to discuss your civil case.
8. The DA Said There Wasn't Enough Evidence To Prove My Criminal Case, So How Would We Win a Civil Case?  One of the main differences between a civil case and a criminal case is the burden of proof.  In a criminal case the state must prove the wrongdoer committed a crime beyond a reasonable doubt.  That is the highest standard of proof.  In a civil case the standard is typically much lower.   To win your civil case you only have to prove your allegations by a preponderance of the evidence.   What this means is that you only have to show that more likely than not a person or entity caused your harm.  This is much easier, and you don't need the same amount of evidence to prove the case. 
9. Can I Collect Money From The Criminal Defendant To Compensate Me For My Harm?  It Depends.  First, most DA's will only pursue out of pocket losses (think property damage, hospital bills, therapy bills) once their is a conviction.  What this means is that a crime victim typically cannot receive money for the hell the event has caused them (think: pain, anxiety, embarrassment, shame, humiliation, and interference with daily activities).  In a civil case you can be awarded money for all the hell the person put you through.   In limited circumstances the DA may be able to get an award of a "compensatory fine" that allows the victim to collect money for non-out of pocket losses.  However this is rarely done.  You should speak to a Civil Crime Victim's lawyer, such as myself, if you are interested in pursuing this.  Call 503.224.1658.
10. Can I Have A Civil Case While the DA Is Prosecuting the Criminal Case, Or Do I have to Wait?   A crime victim in Oregon can have a civil case and a criminal case in the court at the same time.  However, that doesn't mean the cases will be on the same track.  Lawyers would be different, dates and hearings would be different, and judges may be different in the civil and criminal case.   There are numerous strategies that people consider regarding when to file a civil case, so you should consult with a Civil Crime Victim's lawyer. 
11. Can A Civil Lawyer Get a Settlement With the Person Being Charged with a Crime Before Filing a Lawsuit?  Yes!  It is often very helpful to have a civil lawyer  representing the crime victim, so the Civil Lawyer can attempt to resolve the case before filing a Civil Lawsuit.  Sometimes this can occur while the DA is still prosecuting the wrongdoer in the criminal case.  
12. I Believe A Corporation or Government Entity Caused Some of My Harm, Can I File A Civil Lawsuit Against Them Even if an Actual Person Committed the Crime?  Yes, if the evidence merits it.  This happens all of the time.   As a Civil Crime Victim's Lawyer I have filed a lawsuit against multiple corporations and a rapist in the same lawsuit.   We sued the corporations because they negligently hired the rapist and my client was raped while he was on the clock.   This scenario can come up with teachers sexually assaulting or molesting children, DHS failing to protect children, Hospitals allowing physicians to work after receiving complaints the physician had sexually assaulted a person, a bar that hired a bouncer that beat a person senseless, and a bar or social host that over-served a DUII Driver that caused a crash.   These are just a few of the countless examples.  
13.  Can I File A Civil Lawsuit After The Wrongdoer Is Convicted of A Crime?  Yes!  In fact most of the time that is when most civil lawsuits are filed against the wrong doer.  Just because a person is convicted doesn't mean you can't still pursue a civil lawsuit against them to seek money to compensate you for the hell they put you through. 
14. The DA Said The Statute Of Limitations  Ran on The Case, Can I Still File A Civil Lawsuit?  It depends.  Sometimes the criminal statute of limitations for a misdemeanor in Oregon may be as short as a year.  Most Civil Personal Injury lawsuits must be filed in two years.   Therefore a Civil Lawyer may have an extra year to hold the wrong doer accountable.  Other statute of limitations involving sexual assault, molestation, sexual abuse are very complicated and a Civil Lawyer should be consulted with.
15. If I Receive Money From The Oregon Crime Victim's Compensation Fund Can I File a Civil Case Against the Defendant(s)?  Yes.  Oregon has a fund that will pay medical bills and therapy bills for crime victims in some circumstances.  If a person receives benefits from the Crime Victim's Compensation Fund, and later collects money from the defendant in a civil lawsuit or settlement then the Fund must be repaid. 

If you or someone you know has been the victim of a crime and want to file a civil lawsuit call Oregon Crime Victim Lawyer Jeremiah Ross at 503.224.1658 for your free consultation.  Ross Law LLC is happy to assist crime victim.    Please note there are numerous differences between civil law and criminal law, and the law is constantly changing.  

Uber Sexual Assault Survivor Fights Back and Sues Uber

I have previously posted about safety issues with Uber, Lyft, and other ride shares.  These ride share programs market themselves as a safe alternative to getting around town. However, that is not always the case.  A Los Angeles woman was brutally raped by an Uber driver that picked her up.

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She is fighting back and filed a lawsuit against Uber for its failure to conduct a background check.  Currently Uber simply has an on-line application process and hires a company to run cursory criminal record checks.  Therefore, if for whatever reason the criminal records check doesn't pick up an issue then passengers are put at risk of being assaulted, raped, or drugged by a ride-share driver.  These lawsuits are necessary to force the ride-share programs to take pro-active steps to discover any possible issue with their drivers.   For more information about the Los Angeles case click here:  LA Times Article.

If you or someone you know has been assaulted, sexually assaulted, or raped by a ride share driver then please call the police immediately.  If you have questions about your civil rights and your rights as a crime victim, please call Jeremiah Ross at 503.224.1658.  It won't cost you anything and you should know your rights.