What 3 Lawyers Want Women To Know About Accusing Powerful Men

Photo: Sara D. Davis/Getty Images.
After The Washington Post released a 2005 video wherein Donald Trump made lewd comments about sexually assaulting women, many women have come forward to claim that the candidate harassed them, made inappropriate comments around them, and even assaulted them, and that he walked into the dressing area at the Miss Teen USA pageant in 1997. Trump has vehemently denied these allegations and has attacked Hillary Clinton on the same issue: Just hours before the second presidential debate, he held a press conference with women who’ve accused President Bill Clinton of sexual misconduct in the past, and he even brought up the allegations against President Clinton during the debate. Late last week, Trump’s campaign CEO Steve Bannon promised the campaign would continue the attacks on the former president, claiming they’d be turning Clinton into Bill Cosby. For better or for worse, the 2016 Presidential election has shined a bright light on the harshest realities of sexual misconduct. Sexual harassment and assault are crimes, as many have noted, and although we know that they are prosecutable by law in the abstract, the realities of actually bringing a case against someone is mostly a mystery — until the day we find ourselves in a situation in need of legal advice. And sadly, odds are that a lot of women will face sexual harassment and/or assault. One out of every six American women is sexually assaulted in her lifetime (and the term “sexual assault” includes rape, but also attempted rape and non-consensual sexual touching), according to the Rape, Abuse, & Incest National Network, and one in three are sexually harassed at work, per a Cosmopolitan survey. While stats aren’t available about how many of these perpetrators are high-profile men in positions of power, it’s safe to say that this dynamic can add yet another layer to the challenging process of dealing with something like this. Coming forward is rarely easy (just scroll through #Whywomendontreport), but it is an option, even if it’s been years since the incident. And whether you’ve been harassed or assaulted or not — and if you have, whether you choose to pursue a case or not — you deserve to know your rights, and what to expect if you do pursue legal action. To get some answers, we turned to three attorneys who have represented victims of sexual harassment and survivors of sexual assault in high-profile cases: John Clune (who represented the accusers of Kobe Bryant and Jameis Winston), Calvin Dunlap (who represented the accuser of Ben Roethlisberger) and Judd Burstein (who’s representing Andrea Tantaros, a former Fox News Host who filed suit against the news corporation in August). Their answers provide some guidance from a legal perspective, which, we have to warn you, is different from what you need to know to heal from a traumatic episode. This advice is focused on the challenges you might face in not only bringing a case against someone, but also proving it in a court of law. Some of it may read judgmental — i.e., “This is what victims and survivors should do, and it’s unhelpful if they don’t” — so please take care and stop reading if this might be triggering for you. Also, remember: Just because you don’t have a “perfect” case doesn’t mean you are not telling the truth, or that your experience is invalid. It might just mean that you will have a more of a challenge in pursuing legal action specifically. It definitely doesn’t mean you should be silenced. In the end, it’s important to know what, realistically, to expect so you can choose the right path for you. Here’s what our experts had to say. Is there a statute of limitations on sexual harassment?

Calvin Dunlap: “Well, every jurisdiction has their own statutes, and one of the problems or issues...is — and Bill Cosby’s case is an example — where things happened long ago, and sometimes the law allows leeway on the statute because the person has been unable to deal with it. In the civil area, the general statute of limitations is two years. But there are exceptions that can extend that, like where the person was so traumatized and the result was [they were] incapable of [coming forward].” [Editor’s note: The statute of limitations for sexual assault also varies by state.] What makes a high-profile case different?

Judd Burstein: “If you’re dealing with a powerful person, you’re also dealing with powerful people on the other side, so you have to expect there’s going to be pushback. There [might] be an immediate settlement because people don’t want to find themselves the subject of that kind of lawsuit. I have seen what happens when powerful organizations and people try and come down hard on someone as retaliation. It’s a scary thing. You have to have a lot of self-resolution to withstand that.” Is there an extra layer of emotional trauma in a high-profile case?

John Clune: “I’ll tell you I try to give women as much advice as possible as what it’s going to look like. I don’t tell them why it’s worth it to pursue because that’s a very personal decision because...whether it’s recent or something that happened a while ago, you’re working with people who are dealing with one of the most (if not the most) traumatic thing that’s happened to them in their life and so, deciding whether or not they should subject themselves to the suspected abuse and kind of scorched-earth tactics you expect in these high-profile cases is something that they need to decide on their own or with the people they care about, rely on, and trust.” How does the media factor in?

CD: “I advise all clients to stay away from news...those of us who are ethical do not try our cases in the media. We do our legal stuff and win or lose based on the merits of the evidence, not based on what’s in the media.” JC: “Having the media scrutinizing your account of sexual assault is something that can be challenging. I [advise my clients that] the less media they read, the less traumatized they’re going to be. I really encourage survivors of sexual abuse to not read comments of stories because those can be purely attacking and victim-blaming, and you get other people fighting back and it’s this ugliness that can be re-traumatizing.” How do things change if you’re accusing an employer?

JB: “It’s a different situation once you’re an employee because you have all sorts of rights under both federal law and state law. The first thing you do is you go to the HR department…you can complain about a hostile work environment, you can claim sexual harassment. It’s important to exercise those rights because that’s what stops people from engaging in this predatory behavior. Depending on the industry, you may find yourself unemployable…the result of that is that if you make a stink, it’ll be much more difficult to get a job because it’s still a man’s world, unfortunately.”

More of this is coming out and women feel more empowered and are speaking up.

Calvin Dunlap
What’s the first thing you should do when you’re considering speaking up in a legal way?

JC: “Honestly, there’s not a blueprint for stuff to do, but...if there’s a recent sexual assault, there’s evidence collection that needs to happen. [There’s] a process now where women can undergo a rape-kit examination without reporting if they’re not ready to make that decision yet.” [This is an option nationwide — by law, you can receive a sexual-assault forensic exam without being required to report your assault to law enforcement.] CD: “The problem is that these cases arrive at the police department or the DA’s office or the attorney’s office...sometimes long after the evidence is compromised or lost or unavailable, so my advice to women in general is if they’re inclined to report something, they have to do it promptly.” Should survivors of harassment or assault who are pursuing legal action avoid social media?

JC: “One of the things defendants do a lot is that they look to social media to show how [the survivor] isn’t really that damaged, because when a woman is curled up in a ball at 8am because she can’t get out of bed, she doesn’t take a selfie and put it on Facebook. But we put [up] the moments that we want to share, things that feel good and look good. If you look at a survivor’s Facebook account, you wouldn’t be able to tell the trauma that they’re going through. So we try not to give the defendant easy access to what should be a relatively private social-media account. The other thing is that when you have big media, you get a lot of kind of crazies out there who start googling the individual and find them, so a lot of times, you can just change your last name [on your social profile], which gives you another level of privacy. This way the random people who don’t know you who might be wanting to send messages to you to harass you can’t do it.” How long does a sexual-assault case take to be complete?

JC: “You’re generally looking at roughly a year once it’s filed. Most cases are to trial within a year to a little longer.” What sorts of legal fees are involved?

JC: “If you report it criminally, [in a criminal case, the state or federal government prosecutes the defendant, while a civil case involves a dispute between two private parties or entities] there’s no fee to do that. Sometimes people will hire us on an hourly basis just to make sure their rights are protected in a criminal case, but there’s no requirement to do that. As far as a civil case, most attorneys take these cases on a contingency basis so there are no fees up front. Attorneys take a percentage of whatever money is taken from settlement or trial, which takes a lot of pressure off of the fees because if someone was paying an attorney hourly for one of these cases, it’d be well over a million dollars in fees.”

What are the risks of coming forward years after harassment or an assault once other women have spoken up about the same person?
JB: “People need to speak out about these things because when you don’t, you lose credibility as time goes on… It doesn’t mean they’re not telling the truth, it’s just much harder to advance their interest.” CD: “Most attorneys would like to have others who had experience with that individual come forward because that lends credence to the claims. You have to be very cautious, though, because credibility of [the first] victim can be undermined by using someone who later turns out to not be credible. But the delay is always used against the person and can be detrimental to a case, for sure. That’s always the first thing that comes up: 'Why didn’t you talk about this sooner?' Most often people don’t talk to anyone about this.” Are there any reasons why women don’t speak up about harassment, specifically, that differ from why they don’t speak up about sexual assault?

CD: “It’s really hard to generalize on these things, but traditionally, and up until more recently in the last five [or] 10 years maybe, women would just kind of blow off the harassment thing, whereas if someone was really touchy feely that’s a whole different thing. I think there [are] a lot of women that just ignore or blow off those kinds of harassment...activities or comments. It’s a matter of a level of tolerance, and the tolerance was much greater 10-15 years ago than it is now because women feel more empowered [to speak up]. I’m very pleased that more of this is coming out and women feel more empowered and are speaking up…there might be some good that comes out what’s happening in the political arena.”

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