Victim Rights and Courses of Action

[Brian Dexter]

NY State
I don't really know if this is the proper forum for this question but here goes.
Recently my son and another student were attacked and severely beaten by a group of students from the same college. This is a small college in a small town. My son and this other student are certainly going to file charges and they would like to have this prosecuted as gang assault since that is exactly what happened.
If the local authorities refuse to prosecute this as such is there any way to force them?
The college certainly has some power locally as they are the areas largest employer. And , like all colleges, they don't like this sort of thing to get out. They could bring pressure to bear.
I guess the real question here is, is there a way to force prosecution when a local DA doesn't want to?
ThanksWhat is the name of your state (only U.S. law)?

[CdwJava]

Originally Posted by Brian Dexter

My son and this other student are certainly going to file charges and they would like to have this prosecuted as gang assault since that is exactly what happened.

This is not a decision that they can make, and it is also subject to the definition of a "gang" in NY state. If these folks are not part of an identified gang bearing a common symbol and together for the purpose of committing specific and enumerated crimes, they may not fall under your state's definition of a "gang". Even if they do, this act may not be a gang-related act ... unless, of course, your son and the other student are associated with a rival gang.

They may have to settle for battery charges against all of them without the enhancement.

If the local authorities refuse to prosecute this as such is there any way to force them?

Nope. You can go to the media, but the media can't change the law.

Your son and his friend are free to sue their attackers for whatever money they think they can squeeze out of them. But, if the attackers have no money, it may be a hollow and expensive victory at court.

I guess the real question here is, is there a way to force prosecution when a local DA doesn't want to?

No. The DA has almost absolute discretion. The charges filed also have to meet statutory elements, and a "gang" is something that is defined specifically under the law. A group of people that beat someone else up are not inherently a "gang" under the law. They might be, but the fact that many beat up a few does not make it a "gang" activity.

So, the last time you posted (in September) you were a student ... today you are the parent ... which is it?

- Carl

[Brian Dexter]

Originally Posted by CdwJava

So, the last time you posted (in September) you were a student ... today you are the parent ... which is it?

- Carl

No offense what does my status as a parent or student have to do with my question? And why are you so interested!!!

[CdwJava]

Originally Posted by Brian Dexter

No offense what does my status as a parent or student have to do with my question? And why are you so interested!!!

Because people that pretend to be someone else really muddies up the works. Plus, it makes a difference whether you are a participant who has first hand info or are a parent or friend who only has second hand info filtered through the lens of someone looking for sympathy or aid.

It doesn't change the answer I provided, but depending on who you are will effect the credibility of any response you make. The father won't know what happened out there with any real certainty because he wasn't there ... the son would.

- Carl

[You Are Guilty]

Carl is right on the DA = absolute discretion part of his answer, however, NY has a weird quirk when it comes to gang laws. A gang, at least for purposes of assault, is simply any group of people engaged in the same assault. The only difference in the two charges is the intent of the attackers (usually determined by whether they brought weapon(s) or just used their fists).

Originally Posted by PL §120.06

Gang assault in the second degree.
A person is guilty of gang assault in the second degree when, with
intent to cause physical injury to another person and when aided by two
or more other persons actually present, he causes serious physical
injury to such person or to a third person.
Gang assault in the second degree is a class C felony.

Originally Posted by PL §120.07

Gang assault in the first degree.
A person is guilty of gang assault in the first degree when, with
intent to cause serious physical injury to another person and when aided
by two or more other persons actually present, he causes serious
physical injury to such person or to a third person.
Gang assault in the first degree is a class B felony.

There is no civil "gang assault" charge, it's just regular assault/battery. Normally, you have one year from the date of the attack to institute such a suit. However, if the attackers get convicted, you may be entitled to an extension of the SOL to 7 years (or even 10). You should speak to a PI lawyer if that is your intent.

[CdwJava]

Huh, my bad on the "gang assault" thing. Out here we use the term a tad differently, I guess.

- Carl

[You Are Guilty]

Originally Posted by CdwJava

Huh, my bad on the "gang assault" thing. Out here we use the term a tad differently, I guess.

- Carl

CA definitely has "better" gangs than we do. (Although that's changing as of late). Doesn't change the OP's answer though.