Lawyers for #UsToo: An Analysis of the Challenges Posed by the Contingent Fee System in Tort Cases for Sexual Assault

Abstract

According to the National Sexual Violence Resource Center, one in five women will be raped at some point in their lives, and one in three women will experience some form of sexual violence. Despite the widespread prevalence of sexual assault, it is the country’s most under-reported crime. These illustrative statistics are alarming and suggest that current criminal law approaches to the sexual assault epidemic are inadequate, both in meeting the needs of survivors and in holding perpetrators accountable. These inadequacies have the potential to become even more widely experienced in light of movements like #MeToo, given that survivors may now be more willing to come forward, seek support, and engage with the legal system. Given these realities, scholars have begun to explore alternatives to criminal prosecutions for sexual assault, and many have identified tort law as a potential alternative path. However, tort law is generally underused, despite its potential to provide sexual assault survivors with a variety of benefits. This Note aims to provide a structural explanation for why more sexual assault claims are not successfully pursued in tort. Specifically, this Note explores how the contingent fee system and tort reform may affect the frequency and type of sexual assault cases plaintiff-side lawyers are willing to accept and bring to trial. This Note draws on both quantitative data and informal attorney interviews to demonstrate how tort reform statutes influence attorney decisionmaking in sexual assault cases, and how attorney screening decisions in the aggregate may foreclose legal recourse for survivors in a way that is normatively undesirable. This Note then proposes changes to existing systems of criminal restitution in order to address the compensatory, retributive, and deterrence gaps created by the current legal scheme.