What’s Next for Jeffrey Epstein’s Victims?

Civil litigation and potentially money damages.
by Kim Wehle
August 13, 2019
Featured Image
A New York Medical Examiner's car is parked outside the Metropolitan Correctional Center where financier Jeffrey Epstein was being held, on August 10, 2019, in New York. - (Photo by DON EMMERT/AFP/Getty Images)

The media storm over the apparent suicide of convicted sex offender, financier, connected jet-setter, and overall Mephistophelean trope of a man, Jeffrey Epstein, is an important one. 

Accountability for wrongdoing by the rich and powerful is hard to come by. Epstein’s case thrusts that unfairness onto the national stage in horrifying detail. After decades of legal evasions and financial swindling, he slipped through the cracks at a federal Bureau of Prisons-run detention facility in New York City. His own misery thereby ended. Questions swirl. Was his death the ultimate manifestation of his signature chicanery? Or was it a case of pure bureaucratic incompetence?

Attorney General William Barr has already rebuked the “serious irregularities” by the Manhattan correctional facility that housed Epstein. Barr pledged to pursue justice for the victims through the criminal courts, which means continued investigation and possible charges stemming from a conspiracy that the U.S. Attorney’s Office for the Southern District of New York is already tracking.

But what does this mean for Epstein’s victims?

The difference between criminal justice and civil justice is simple: jail time. A criminal charge can be brought only by the government because only the government can deprive a person of liberty by putting them in prison (so long as the system provides constitutional due process, that is). When people talk about victims “pressing charges,” therefore, what they really mean is that the victim is willing to cooperate with the government’s decision to press charges. Without that key witness, the government might not have enough evidence to bring a criminal case. 

Victims of crimes cooperate for many reasons, including that they may achieve a measure of psychological closure by seeing perpetrators held accountable through the criminal justice system. But assisting in the government’s efforts to throw someone else in jail—or even to execute him—does not make a victim “whole.”

Making people whole is instead the elusive task of the civil litigation system. Civil cases can be brought by regular people seeking money damages or an injunction, that is, a court order directing the defendant to stop certain bad behavior. Because a person’s freedom from incarceration is not at stake in a civil lawsuit, the metric for winning a civil case is much lower than that of a criminal case—generally, plaintiffs must prove their case by a preponderance of evidence versus the robust beyond a reasonable doubt standard that binds prosecutors.

For Epstein’s victims, there is good news and bad news. The good news is that the government estimates that his estate is worth more than $500 million. Some of that money will go to his immediate heirs. It’s unclear whether he left a will; he had no spouse or known children but the Miami Herald reports that he has a brother. Some will go to secured creditors, e.g., people or entities that loaned him money. The assets must be hunted down and tallied up first, of course.

In the payment line, unsecured creditors fall behind heirs and secured creditors. Those would include people with civil money judgments against Epstein that remain unpaid. So far, lawyers for Epstein’s victims have vowed to pursue litigation with the hopes of obtaining judgments in the future. Lawyers are also expected to ask the probate court—which will likely oversee the disbursement of his estate, depending on where his legal primary residence was—to freeze his assets pending that litigation. The entire process will likely take many years, which is part of the bad news for his victims.

The other bad news for victims is the possibility that Epstein’s estate—or whomever administers it—will put up a serious fight. Unlike Epstein, those folks don’t have a personal bank account to protect, or jail to avoid, or an island on which to gallivant, but they are required to follow any instructions left by Epstein within the limits of the law. The location of some of Epstein’s assets, and the data needed to find them, might have died with him. Epstein reportedly wanted his brain and genitals frozen for a future lifetime. No doubt he anticipated the legitimate feeding frenzy on his estate after his death. He may have taken pains to “take it with him,” so to speak.

There are a number of legal theories Epstein’s victims could pursue in seeking civil judgments against his estate. Under Florida law, for example, rape victims can file civil actions for damages. This past June, a woman who was allegedly raped in her apartment by a maintenance worker won $900,000 in civil damages. The defendant’s prior plea to separate criminal charges resulted in a five-year prison sentence. Just this week, a new law will go into effect in New York that extends the statute of limitations by affording child sexual abuse victims a one-year window to sue an abuser or a responsible institution, regardless of how long ago the incident occurred, among other measures. Epstein retained residences in both Florida and New York.

The impetus behind the New York law suggests that public and legal accountability for the Roman Catholic Church’s widespread sex abuse cases—which primarily involved young boys—has operated to raise awareness about the insidious of pedophilia and child abuse. Too often, when the victim is female, perpetrators and their supporters cry foul and make baseless accusations of misremembering, lying, or even “asking for it” (despite the legal impossibility of asking to be raped). Not so much with boys. Let’s hope the attorney general’s somber and serious take on justice for Epstein’s victims carries the day—not just in court, but in the halls of social tolerance, too.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is also a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation and author of How to Read the Constitution and Why (Harper Collins).