Sexual Assault: What to know and expect if (and when) you go to court

Published by Imani Benjamin on

Sexual Assault: What to Know and Expect When Going to Court

Editor’s Note: This story is the fourth part of our Sexual Assault Series, a place where victims, friends and families can learn more about the topic.

Surviving sexual assault does not end at the hospital, especially if a victim decides to press charges. To learn more about these cases and how they might proceed in the courtroom, I sat down with DeKalb county Magistrate Judge Claire Jason, who has sat on the bench for more than 15 years.

It must be duly noted that the venerable judge is strictly speaking from her experience and therefore sharing her collected opinions of these types of cases, and not the law itself.

What courts do sexual assault trials take place in?

“There are three classes of courts in each county… the magistrate court, which takes on the intake… The second level of court is the state court… handles any misdemeanor-level of sexual offenses, and then the more serious sexual offenses are handled by the superior courts, which is the highest court in each county, and they take care of the felony type of serious offenses.” 

How often do sexual assault trials make it to court?

“Sexual assault charges will go to court if the person who is accused of committing the offense, which we will call ‘the accused,’ if that person for some reason isn’t willing to admit [the charge of sexual assault]… Most cases in sexual assault offenses probably do end up in plea deals because: 

  1. the victim doesn’t necessarily want to relive the allegation of a sexual assault or
  2. the accused is willing to take responsibility for the act. And in order to negotiate a lesser sentence then they’re willing to go ahead, go forward and accept a plea instead of going to trial. 

So those are the two primary reasons, I would think that the offender or alleged offender wants to take accountability to some extent and try to receive a lesser charge and/or sentence… the victim doesn’t want to go through the torment of having to go to trial and accept the plea and be part of a plea deal.”

Are there other ways a victim could get justice?

“Other than a civil suit, no… There are civil remedies where you can sue a person in court. The burden of proof is lower, and it would be for monetary damages instead of punitive consequences [like jail time] for the action which would happen in criminal court.”

How can you press charges?

“So, let’s talk about two categories. Generally, a person can make an outcry. That generally happens when you have young children who have been molested or sexually assaulted in some way by someone in their household or a family friend or a stranger or whomever. They usually make an outcry to their teacher or their counsel or friend or family member… 

Secondly, is if a person feels as though they have been sexually assaulted, then they can certainly go to the authorities themselves and report it and an investigation will be started by an investigator.” 

Can you explain the parts of a trial and who a victim might come into contact within the courtroom?

“[I]n a courtroom, whenever there is a trial, of course, you have the judge presiding over the trial. Then you may have a jury [and] if it’s a felony, then it will be a 12-member jury. There will also always be a prosecutor… who is the one that presents the evidence to the judge or jury. Then there’s going to be the defense attorney who is going to represent the defendant’s best interests and try to present information regarding the defendant. Then there will also possibly be a victim’s advocate who may be a support system for the victim.

In addition to that, of course, you’ll have all the parties that have information about the case testifying. And that would be the police officer who may have written up the record. That would be the detective who did the investigation on the case. And then the state may call additional witnesses to testify to maybe build up their case against the accused. And then on the defense team, they will be able to call any witnesses that they choose as well. That’s generally all of the parties involved in the criminal proceedings.” 

Is it possible that they can have personal support or law enforcement support in the courtroom?

“That’s what they have the victim’s advocate for… When a victim is in court, our court system has a victim’s advocate. So if the victim sits in court, if they choose to with their family members, there will also be a victim’s advocate there to provide any resources or services that that victim may need.”  

[What is statutory rape?]

“There’s two types of rape. There’s a misdemeanor. There’s a statutory rape, which is a whole different offense… it’s most commonly seen in the court system where you have someone that engages in sexual intercourse with someone that’s under the age of sixteen that is not their spouse…” 

How is rape defined in Georgia?

Rape is when there is a forcible non-consensual act against another person. . .what we see can be non-consensual as well. We may have a rape case where two people go out and hang out in a club, and then they go home together. They have sexual intercourse, but the female doesn’t remember having sex, so she may report the next day like “I don’t remember consenting to sex”. . .It’s not consensual, sex with a person who is non-consenting because of their condition. And then rape is usually the act of a violent rape by force, having sexual intercourse and putting an individual in fear of their life and or liberty. . .”

Does Georgia follow along with the FBI’s gender-neutral definition?

“I think it would be gender-neutral. We haven’t had too many cases, but we do have cases that come out in the magistrate court. In our court we do the intake on cases. So there have been cases where sexual offenses can happen between same-sex, different sex, reverse where it’s male to female or female to male. They’re not that common where it’s female versus male for more  violent offenses…”

If a case goes to court and isn’t resolved through a plea bargain, what role does the victim take in court proceedings? 

“A victim can choose or not choose to testify depending on the evidence the state has. But generally, a victim would have to testify because they have to say what happened. They have to sit in front of the defendant and provide the information that is requested… And so, the victim plays a crucial role because, in most cases, the state will call the victim to testify or the public defender will call a victim to testify. So, they will have to participate in the hearing. I think that’s why many victims are OK with plea deals because they don’t want to go through testifying…”

What if the victim doesn’t testify?

“The state can still call witnesses… The state can go ahead and call anyone that they believe has sufficient testimony to convince the judge and jury that the offense actually did happen. They can also take statements… It depends on the circumstances and whether or not a judge will allow that to happen…”

What role would a victim expect to take in court?

“I think – I’m not in the superior court at the trial level, but I would imagine that they would be behind the scenes… They provide testimony and/or be in the courtroom if they want to be there… And that’s from my perspective in the proceedings… When it goes to sentencing, they can still testify about the impact the crime had on them before the judge and jury makes a binding decision…”

What kind of evidence is used?

“Sometimes there is no DNA. There may be injuries or scratches if the victim is trying to defend themselves. Sometimes there’s a condom used and there’s no DNA at all. Sometimes there may just be sweat or saliva, and when a victim goes to get a rape kit done, if there’s any other bodily fluids they will come up. 

When the GBI, the Georgia Bureau of Investigations, tests the sample and determines what the fluid was. If it’s not semen, then it’s going to be difficult because it’s going to be hard to establish whether or not the sex was consensual or not. Then they would have to look at other information like who did he or she tell whether or not they called the police… Other than injuries and statements, that is what the judge and jury have to rely on if they’re going to go forward with a rape charge.”

What are rules and laws pertaining to what can be presented as evidence? 

“The state can provide any information it deems is appropriate to establish the crime. Any crime has been committed and it’s up to the defense attorney to object and say no, that’s not admissible… And then the judge has to decide whether or not they’re going to admit it…”

Are there any laws concerning how long DNA evidence can be held?

“I think they keep DNA evidence on file once somebody is in the system… They can keep rape kits and DNA indefinitely as long as they are being preserved…”

What are statutes of limitations?

“A statute of limitations means that you have to prosecute a crime within a certain amount of time…”

What are Georgia’s Statutes of limitations?

“… If a person can be punished by death or life imprisonment has to be started within 7 years. If it is not, it has to be done within 4 years of the time the crime has allegedly been committed… Two years for most misdemeanors, the state has to start the case within four years for felonies and seven years if it’s a felony that can be ended with a charge of death or life in prison. 

For the crime of rape… it has to start within 15 years of when the crime was committed, or… it starts whenever the evidence is discovered. There are exceptions, like if the person was out of state or the defendant is unknown, which is why they can preserve DNA. It has to be a forcible rape, and they have to prosecute within 15 years.”

What are some legal protections for victims?

“They give them many resources. I’m sure it’s up to the person to go ahead and follow through with those programs. I know there are programs for victims of sexual assault, and they have nonprofit or other agencies that will be willing to assist somebody in getting therapy. If you’re a victim of rape, I think there’s a program in Fulton and most counties that gives you six months to one year of therapy…”

What is the biggest myth you’ve come across?

“I’ll tell you what’s very common, I think. There’s two things going on a lot. I can’t really say myths in those types of cases, but I would like to add this. If you asked me about what type of cases you see as an intake judge and magistrate court issuing warrants and what investigators are bringing in, a large amount of cases are child molestation cases, [from] blended families, neighbors, uncles, so many child molestation cases, which is a problem because a lot of juveniles are committing child molestation cases or aggravated child molestation cases and they’re very rampant…

And then the other type are these young girls, now that people are talking about trafficking, who are in the Department of Family and Children Services’ custody. Maybe they’ve been in foster homes, in and out, and they meet some guy. He says, ‘Oh you’re so pretty,’ and he’ll start taking them and pampering, getting their nails done, getting their hair done and transforming them from a 15 or 16 years old to making them look of age… And then that man takes over and he starts requiring them to prostitute them to maintain this lifestyle.”

What are some expectations people have when going to trial versus what actually happens?

“The expectation is that they believe that because they said it, then the alleged person, the accused, will be found guilty. In the worst-case scenario, they may not. They may not if there’s not sufficient or no evidence… One of the unpleasant results is that a person can actually be found not guilty of a sexual offense when a case goes to trial.”

How long do trials take?

“It takes a long time for a case to get to a trial. A person is arrested. They’re taken into custody. They still have the presumption of innocence. And so, then they’ll appear before a judge and that can take up to thirty days and then they’ll get a bond. The family has to post a bond to a bonding company. If they’re in custody, then they have to expedite the process if they can’t make a bond. If you’re out on bond, I think the state has up to that four-year period to initiate [a trial]. But I would think that it generally starts within a year to 18 months…” 

Amanda Funger | Avant-Youth

Who is protected by sexual assault laws in Georgia?

“Generally any victim is protected under the law. Victims can be any person who is the recipient of any type of sexual assault towards their person… any male or female that is the recipient of any type of sexual offense.” 

As April, Sexual Assault Awareness Month, comes to a close we hope we’ve been able to provide you with information to help those around you find the understanding, care and justice they deserve.  

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Imani Benjamin

Imani Benjamin-Wharton is a graduate from Georgia State University with a degree in English. She’s an aspiring novelist hoping to write the next great American novel. In her free time, she learns the secrets of survival from her favorite horror movies.


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