Earlier this month, Virginia Roberts Giuffre, 38, filed a civil complaint in a Manhattan federal court against Prince Andrew, 61, the Duke of York, claiming he sexually assaulted her when she was a minor.
Prince Andrew has not released a statement about the suit, but he has consistently denied Giuffre’s allegations, which she has made in previous court filings dating back to 2016 as well as in a 2019 BBC interview. In his own interview with BBC journalist Emily Maitlis in 2019, Prince Andrew refuted Giuffre’s allegations and claimed that he had never had sexual contact with Giuffre and had no memory of ever meeting her. He also questioned the authenticity of a widely shared photograph of the two of them from 2001 and implied it may have been manipulated. After the fallout from this interview—which has been referred to as “disastrous” and “noxious”—Prince Andrew stepped into private life and away from his official duties.
Here’s what the suit could mean for Giuffre, Prince Andrew and the #MeToo movement.
What does the lawsuit allege?
In her filing, Giuffre says Epstein, Ghislaine Maxwell—Epstein’s former girlfriend and longtime right hand—and Prince Andrew forced her to have sex with Prince Andrew three times when she was 17, a minor under New York law where the suit was filed. (Giuffre has previously alleged that she was sex-trafficked by Epstein, who died in prison while awaiting trial for sex trafficking charges in August 2019; Maxwell is currently in jail in the U.S. awaiting trial for conspiracy, perjury and sex trafficking charges. Giuffre was instrumental in lending her voice to support the charges faced by both.) The suit claims Giuffre feared death, physical injury or other repercussions for “disobeying Epstein, Maxwell and Prince Andrew due to their powerful connections, wealth and authority” and that Prince Andrew knew she was a “sex-trafficking victim being forced to engage in sexual acts with him.”
Giuffre is seeking unspecified monetary damages for “significant emotional and psychological distress and harm.”
The first challenge for Giuffre’s lawyers is to get Prince Andrew formally served with notice of the suit, says Carol Wilson, a lawyer specializing in family law based in Dallas.
This is expected to be done in person, but could be challenging as the Duke of York is reportedly holed up at Balmoral Castle in Scotland with the Queen. Prince Andrew could give his attorneys the right to accept service of the suit on his behalf, however, and while it’s not mandatory that he respond, Wilson thinks it would be wise for him not to ignore the suit as doing so could result in a default judgment against him. (It’s also worth nothing that this isn’t the first time Giuffre’s lawyers have attempted to communicate with Prince Andrew’s legal counsel. According to Forbes, they had previously sent a letter to Prince Andrew’s counsel that could have opened the door for a settlement as opposed to a trial. That letter reportedly went unanswered.)
After the notice is served, Wilson says the prince’s lawyers could begin to challenge the suit in a number of ways, including challenging any requests that may come from Giuffre’s lawyers for evidence he has that may confirm her allegations. In short, the prince’s lawyers could start a series of time-consuming pre-trial motions before a trial takes place, if one happens at all.
What’s the difference between a civil trial and a criminal trial?
There are a few important differences, says Wilson. First, there is no jail time associated with a civil claim and successful plaintiffs are awarded financial damages. Second, the burden of proof is different. In a criminal trial, the prosecution must prove guilt beyond a reasonable doubt. In a civil trial, liability (rather than guilt) is determined by a preponderance of the evidence—i.e. that what is being alleged more likely than not occurred. For example. after he was acquitted for their murders in his criminal trial in 1995, O.J. Simpson was subsequently deemed liable for the murders of Nicole Brown and Ron Goldman in a civil trial in 1997.
What’s different about dealing with cases of sexual assault in the civil court versus criminal court?
For one, not a lot of people know it’s a possible option, says Gillian Hnatiw, a civil litigator with experience in sexual assault claims and principal of Gillian Hnatiw & Co. Advocates, in Toronto.
There is a significant barrier to civil claims, however, and that is money. Civil suits award financial damages if liability is determined, which means pursuing a claim in civil court precludes those people who a) can’t afford to pay a lawyer if they are unsuccessful with their claim and b) who are pursuing a claim against someone who doesn’t have any money.
For survivors who have the means to pursue a claim or who have a reasonable chance of compensation, however, there are significant differences that may make the process preferable. One of those benefits is representation. In a criminal case, a sexual assault complainant is a witness serving the state (or the Crown in Canada) and the state is working for the government—not the complainant. In a civil trial, the complainant is a plaintiff, and their interests are represented by a lawyer. This has a lot of appeal for survivors who often claim feeling undefended and exposed during criminal trials.
“Sexual assault is a crime of power and being assaulted is about a very traumatic loss of power,” says Hnatiw. “To be put through a process where you have no power or agency over what happens can be retraumatizing.”
And unlike criminal trials, in a civil suit both sides are permitted to ask for significant evidentiary material from the other party.
There is “reciprocal disclosure,” so you can request a lot of documents that you can’t make in a criminal case, says Hnatiw. “If he has got phone records, etc., all sorts of things that might help corroborate her allegations, she can get them through the discovery process and after that her lawyers can sit down and ask him questions.”
In February, singer FKA twigs filed a civil suit against Shia LaBoeuf, citing sexual battery and abuse. The actor has denied all the allegations. (That claim appears to be in the process of negotiation, according to a June report from the New York Daily News, though a trial could still happen.)
On the flip side, the gloves are off in civil cases. Certain legal protections that attempt to protect survivors from sexist myths and stereotypes related to women claiming assault aren’t present in the civil system, says Farrah Khan, a gender justice advocate and manager of Consent Comes First in Toronto.
Wilson agrees that civil suits can go places criminal suits are sometimes barred from going.
“In criminal cases there are statutes that say you can’t pick on a rape victim, but there are no such similar statutes in civil cases. They’ll be looking for every rock they can turn over.”
Why is the suit being filed now?
In Giuffre’s case, and in many thousands of others in the U.S., a civil suit may be the plaintiff’s last chance at seeing someone held accountable for their alleged abuse. In the U.S. the statute of limitations on sex crimes often runs out before many survivors feel able to seek redress within the justice system, if they do at all. (In Canada, there is no statute of limitations when it comes to pursuing claims of sexual assault.)
Giuffre filed her suit under New York State’s Child Victims Act, which extended the statute of limitations on childhood sexual abuse in 2019 and granted survivors a short window for suing their alleged abusers in civil and criminal courts, even if the statute of limitations for criminal charges had passed. Giuffre filed her claim just before that deadline ended earlier this month.
What’s the cultural significance of seeing a member of the royal family called to account?
Giuffre’s lawyer, David Boies, told ABC News that for Giuffre the suit is an opportunity to “set an example.”
Said Boies: “People, no matter how rich or powerful, no matter who their family is or what their connections are, can’t avoid be calling to account in a court of law for allegations of sexual abuse.”
The Epstein case is a sordid one and as Julie Brown’s new book, Perversion of Justice: The Jeffrey Epstein Story reveals, it implicates more than just two people.
“Oftentimes we see sexual violence and trafficking as an individual act,” says Khan. “We don’t see how systems, communities and families can all participate and uphold this violence. I think it’s important for people to understand how many people it takes to cause this kind of harm.”
Julie Lalonde, a women’s rights activist and author of Resilience is Futile: The Life and Death of Julie S. Lalonde, says the last few years have taught her it’s not a great idea to get hung up on the value of one case or one legal judgment.
“I think #MeToo has shown us that we overestimate how much a legal decision will change the cultural understanding of an issue,” she says. Lalonde is more encouraged by the progress that has been made in the past few years and by the fact that we are even talking about such allegations and their complications publicly.
“Ten years ago, it seemed incomprehensible that someone like Peter Nygaard or Harvey Weinstein would ever have been held accountable. Prince Andrew? Ten years ago, if someone had said that [would be the case now] I would have laughed in your face and said, ‘Cool, invite me on your magic carpet.’”
What’s the likeliest outcome of the suit?
Hnatiw tells her clients that a civil case can take up to a minimum of two and a half years before trial. But in her experience, 95 percent of civil suits never make it to trial, but instead resolve in settlement.
“I’ve been practising for 20 years and had hundreds of clients and I’ve only had two wind up before a judge.”