Victims of sexual harassment and assault face trauma that will affect them for years, and often for the rest of their lives. A trauma is not as simple as an injury; it impacts the brain and body in ways that those who have never suffered from it cannot understand. As a lawyer who has represented many victims of sexual assault and harassment in court, I have witnessed how the civil justice system can help them get the resources they need for professional help. essential and hold the perpetrator accountable to prevent other victims from falling prey to them in the future.
In Colorado, survivors pursuing civil justice also face the real possibility of personal bankruptcy. This claim may seem far-fetched in the age of the #MeToo movement, but it is true. A statutory rule in Colorado – unique to Colorado – allows authors to recover their attorneys’ fees if the case is dismissed. Judges have no discretion and are automatically required to award attorney fees to defendants who win these motions, regardless of the reasons for the dismissal. While some cases will result in a survivor’s bankruptcy, in others the perpetrator may offer to waive their right to collect fees in exchange for the survivor agreeing not to appeal the termination, forcing survivors to make a choice that will change their lives.
In these cases, if the victim ultimately chooses to appeal the decision because they believe they have a valid legal case for redress, they may have to pay up to hundreds of thousands of dollars through the appeals process. if she continues. If they choose not to appeal, they lose their chance to seek justice, hold their abuser accountable, and ensure good laws are made for future survivors. I know from experience that almost no survivor can cope with possible financial ruin of this magnitude. And yet, this “Sophie’s choice” hampers survivors’ access to civil justice, because the risk of bankruptcy almost always outweighs the hope of justice.
Sexual harassment and assault is already underreported at an alarming rate due to the challenges and public scrutiny survivors endure through law enforcement and justice systems. Allowing the re-traumatization and silence of people who have been sexually assaulted for fear of financial ruin – and at the hands of their abusers to boot – is not justice.
To be clear, all civil lawsuits are subject to this Colorado statutory rule that encourages survivors to drop their cases instead of holding their perpetrators accountable. From my practice, I am acutely aware of the fundamental injustice of this rule for victims of sexual harassment and assault. Forcing victims to choose between pursuing legal action, including refusing to appeal a wrongful dismissal of their case, or paying the legal costs of their attacker is an undeniable injustice.
A new law proposed in the Colorado General Assembly – the Access to Justice Act (HB22-1272) – would eliminate this unfair rule that forces survivors to pay their perpetrators’ legal fees. It is important to note that no rule like this exists in both form and practice in any other state in the country.
Companies, government entities and others are fighting against this change, as it allows them to escape responsibility for the misconduct of their officers and employees. They say this law is necessary to weed out frivolous lawsuits, but state and federal laws provide many mechanisms for courts to award attorneys’ fees and costs to parties bringing frivolous lawsuits.
At a fundamental level, we must protect the right of survivors to access our civil justice system without risk of personal financial ruin, at the hands of their perpetrators, no less. Those who have the financial means should not be the only ones to obtain civil justice. A system that only works for the rich and privileged is a broken system that needs to be fixed.
Laura Wolf is a Denver attorney who defends the civil rights of individuals.
To send a letter to the editor about this article, submit it online or see our guidelines for how to submit by email or mail.