Information
Proving Injuries from the Sexual Abuse of Both Minors and Adults
John D. Winer, San Francisco
A. Who Can Bring a Lawsuit for Being Sexually Abused?
In California anyone can bring a lawsuit if her or she has
been sexually abused by another person. This would include
both genders, adults and children. Sexual abuse cases can
involve a child molested by an adult (the case can be brought
while the child is still a minor by a guardian or sometimes,
if the statute of limitations has not run, by an adult who had
been molested as a child), a child molested by another child,
and an adult sexually abused another adult. Again, the gender
of the perpetrator and victim is irrelevant
There are both criminal and civil statutes prohibiting
sexual abuse and if a plaintiff can prove a violation of
either a criminal or a civil statute, they are entitled to
recover monetary damages.
The spouse of the injured plaintiff can also bring their
own lawsuit for loss of consortium damages; that is, damages
for the loss of society, comfort and care of the injured
plaintiff. See the section on Damages in this article.
B. Specially Protected Classes of People.
In most sexual abuse cases, a plaintiff must prove that
the sexual contact with him or her was offensive, unwanted and
non-consensual.
i. Minors and incompetents.
However, there are several classes of people who are
protected against any type of sexual touching regardless of
whether or not the plaintiff consented to the conduct and
regardless of whether or not the conduct was offensive or
unwelcome.
The largest class of people protected under these laws are
minors who, in California, are children under the age of 18.
It is absolutely prohibited for an adult to have any sexual
contact with a minor, welcomed or unwelcomed. The same rule
is true for people who are found to be so mentally incompetent
that they are unable to give consent, as long as the
perpetrator knew of the level of the plaintiff’s incompetency.
ii. Patients and clients of health care providers.
The other major category of victims who have been found to
be unable to consent to sexual contact are patients and
clients of health care providers. It is prohibited under the
law for any health care provider to have any sexual contact
with his or her patient. This would include psychiatrists,
psychologists, social workers, marriage family and child
counselors, medical doctors, physical therapists,
chiropractors and virtually anyone else who is licensed to
provide health care in the State of California.
When a therapist or doctor has any type of sexual contact
with a patient, it is an automatic violation of the law. The
fact that the patient consents to the sexual contact is
irrelevant. If the patient can prove that they have been
damaged by the sexual contact, then they are entitled to a
monetary recovery.
In the case of psychotherapists, it is actually illegal
for a psychotherapist to have sexual contact with a patient
for two years after the therapy is terminated. Further, there
are situations in which it would be considered improper for a
psychotherapist to have sex with a patient even if he or she
waits more than two years after the psychotherapy has
terminated; it would not be a violation of statute, but could
be a violation of the standard of care.
C. What Is a Sexual Touching?
Although the definitions of sexual touching vary somewhat
depending upon the statute that is being considered, it would
generally be considered to be a touching of or the touching by
an “intimate part” which includes “the sex organ, anus, groin,
or buttocks of any person, or the breasts of a female.”
D. Can You Sue Somebody Besides the Perpetrator for
Sexual Abuse.
It has become increasingly difficult under California law
to sue someone other than the perpetrator for sexual abuse.
This has become a real problem for victims because rarely can
a perpetrator afford to pay a plaintiff significant damages,
even if he or she is found liable under the law.
However, there are a number of situations in which a
plaintiff may be able to sue someone other than the
perpetrator.
i. Employee can sue employer for sexual harassment.
First of all, if the abuse involves sexual harassment in
the workplace perpetrated by a supervisor of an employee, then
the employee can sue the employer and if he or she can prove
the harassment/abuse occurred, then he or she will
automatically win against the employer.
In the employment setting, if a plaintiff can prove that
there was prior sexual abuse/harassment by a co-employee, and
the employer knew of it or should have known of it, then the
plaintiff will also be able to prevail against the employer.
ii. Victim may be able to sue employer of
perpetrator.
In situations in which a plaintiff is sexually abused by a
person while the perpetrator is in the course and scope of his
employment, the plaintiff can prevail if he or she can prove
that the employer knew or should have known that the employee
was a danger to the public and failed to take protective
action or the employer negligently hired the employee. This
type of case most frequently comes up in a setting such as a
hospital, where a patient is sexually abused by somebody such
as an orderly. If the patient can establish that the employer
negligently hired the perpetrator or knew or should have known
that he or she was a danger to patients, then the plaintiff
can prevail in the case. This is true even if the patient is
sexually abused by another patient, and the hospital knew or
should have known the other patient was dangerous.
Another common situation in which an employer may be
responsible for sexual abuse of an employee is in the school
setting. Generally speaking, the school will only be held
responsible for sexual molestation performed by a school
teacher if it knew or should have known the school teacher was
a danger to the children or the school teacher was negligently
hired.
However, there are situations in which an employer will be
held responsible for the sexual abuse of an employee even if
it did not have notice of any prior problems. These are
situations in which there is a special relationship between
the perpetrator and the victim. Although the law in
California is in flux on this very important issue, there is a
strong implication under the law that in situations such as a
police officer pulling over a vehicle driver, a psychiatrist
in a clinic having sex with a patient, or any situation in
which there is a close relationship between the perpetrator
and the victim, the employer of the perpetrator may be found
responsible even if the employer had no knowledge of any prior
problems.
iii. People in charge of safety of children.
There are situations, particularly involving the safety of
minors, in which a person may be found responsible for sexual
abuse committed by another, even if there is no
employee/employer relationship. Liability can come merely
from being aware the perpetrator was a danger to children and
not acting properly to protect them. This kind of case may
arise out of a family day care setting in which the owner of
the day care may be aware that, for instance, her husband or
teenage child is a danger to the small children or in a
situation in which a grandparent or neighbor’s parent is known
to be a molester, yet the spouse of that known molester takes
inadequate steps to protect the children visiting the house.
E. Statute of Limitations in Sexual Abuse Cases --
Adults.
i. Different time periods for different cases.
The legal causes of action that one might sue for in a
sexual abuse case carry different statute of limitations,
i.e., time periods, within which one must bring a lawsuit.
When a sexual abuse suit is filed, an attorney will
normally want to plead causes of action for battery, sexual
battery, violation of the particular statute (such as one of
the Penal Code statutes prohibiting sexual abuse), negligence
(this may help achieve insurance coverage; see insurance
coverage section below) and on some occasions fraud if
appropriate. Further, if the attorney is trying to hold
someone responsible other than the perpetrator, he or she will
sometimes plead causes of action for negligence against the
employer or supervisor for negligent supervision and/or
negligent hiring. Sometimes attorneys will plead theories of
premises liability alleging that the unsafe maintenance of a
premises or building led to the sexual assault.
ii. Generally one-year statute of limitations.
In cases of professional sex abuse, the attorney will also
plead causes of action for professional negligence, sexual
harassment, breach of fiduciary duty and violation of one of
the professional statues that prohibit professionals from
abusing patients.
iii. Six-month statute of limitations against
public entity.
In the case of a public entity, a claim must be brought
within six months of the wrongful act or it may very well be
lost.
iv. Statute of limitations may be extended for late
discovery.
There are different statute of limitations considerations
for all of these causes of action; however, to be absolutely
safe, the case should be brought within one year of the date
of the wrongful act, or at least the last wrongful act.
There are a number of situations in which a court may find
that a plaintiff is excused for not bringing a lawsuit within
one year. First, plaintiff might not be injured by the
wrongful act until more than one year after the act occurred.
Further, the plaintiff might not discover that an act was
wrongful until more than one year after the act occurred.
This is called the late discovery doctrine and it has been
upheld in a number of different sexual abuse cases.
However, when applying the late discovery doctrine, the
standard is not that the statute of limitations begins to run
when the plaintiff definitely realizes there was wrongful
conduct and he or she was injured by it; rather, it begins to
run when a plaintiff is aware of sufficient information to
indicate that there might have been wrongful conduct and he or
she might have been injured by that conduct. Thus, a
statement from a friend, spouse, lover or therapist to the
plaintiff that “what happened to you is wrong” or “that guy
really messed you up” may be more than enough to start the
statute of limitations running.
v. Fraud may have a three-year statute of
limitations.
Further, there are some theories such as fraud that have a
three-year statute of limitations, although sexual abuse cases
infrequently involve fraud there are situations when one is
fraudulently induced to enter into an inappropriate sexual
relationships with another where a fraud theory might apply.
vi. Legal doctrine of estoppel may permit late
filing.
Sometimes plaintiffs can rely on a legal theory known as
estoppel which states that if the perpetrator, through
threatening or fraudulent actions, prevented the plaintiff
from bringing a lawsuit sooner (i.e., “I’ll kill you if you
sue me.”) the court may find that the statute of limitations
does not begin running until plaintiff was able to reasonably
believe that he or she was no longer under the threat of harm.
A theory of estoppel may very well work against the
perpetrator but may not work against the perpetrator’s
employer or the person in charge of supervising the
perpetrator; therefore, a plaintiff may be saved on the
statute of limitations case against the perpetrator but still
will not be able to prevail against the employer or
supervisor.
vii. Who decides whether statute of limitations
has been violated?
Statute of limitations in cases are generally decided by a
judge on what is known as a summary judgment motion some time
during the middle of the case. So if there is a large statute
of limitations problem, a plaintiff will often not be able
have his or her case heard by a jury. Sometimes a judge may
throw out a complaint at the very beginning of the case if “on
its face” plaintiff has not complied with this statute of
limitations.
viii. Statute of limitations in sexual harassment
cases.
In cases in which sexual abuse occurs in an employment
setting, there are special claim and statute of limitations
statutes, generally speaking, an administrative claim must be
filed within one year of the wrongful act.
ix. Professional sexual abuse cases.
In cases in which the sexual abuse arises in a health care
provider or in a hospital setting, there are special medical
malpractice statutes of limitations which will apply to those
parts of the claim. Generally, the plaintiff has three years
from the date of injury or one year from the date of
discovery, whichever is sooner, so plaintiffs are generally
safer bringing the case within one year of the wrongful act if
possible.
x. Adults suing for childhood abuse.
There are special statute of limitations considerations
for adults who want to bring lawsuits for sexual molestation
or abuse that occurred to them when they were children. See
statute of limitations for minors in sex abuse cases section
below.
xi. Consult with an attorney who specializes in
sexual abuse cases to determine statute of
limitations.
The courts generally recognize the fact that it is
extremely difficult for a sexual abuse victim to come forward;
therefore, one should always consult with an attorney before
giving up on the statute of limitations issue in a case.
F. Statute of Limitations in Sex Abuse Cases Involving
Minors.
i. Special statute of limitations for child sex
abuse cases.
Most injury cases involving minors must be brought within
one year of the minor’s 18th birthday, i.e., before they turn
19. The one exception to this general rule is claims against a
government entity which in most situations must be brought
within six months.
However, the California legislature has recognized how
difficult it is for minors to recognize the wrongfulness of
the conduct of the perpetrator and the harm that they suffer
from sexual abuse; therefore, there is a special statute of
limitations law which applies only to cases in which a person
is sexually abused as a minor.
In a case for recovery of damages from sexual abuse that
occurred when the victim was a minor, the victim has at least
until the age of 26 to bring an action. Further, a plaintiff
can bring an action at an even later age if the plaintiff can
prove that he or she is bringing the action within three years
of the date that he or she reasonably should have discovered
that an injury was caused by sexual abuse as a minor.
There is only one limitation on this law and that is, when
a plaintiff is suing someone other than the perpetrator, the
case must be brought before the plaintiff turns 26 and the
plaintiff does not receive the benefit of the three-year late
discovery statute.
ii. Difficulty of proving delayed discovery.
Whether or not plaintiff discovered, or should have
discovered psychological injury within three years of the date
he or she brings a lawsuit is frequently difficult to prove,
especially if the plaintiff has been in psychotherapy
discussing the issue or has talked about the sexual abuse to
friends or relatives more than three years before bringing the
lawsuit. In addition, in most situations, the perpetrator
will not have sufficient funds to pay for plaintiff’s
injuries. Further, the more time that passes from the time of
the abuse to the time of the lawsuit, the more difficult it is
to prove the case. Key witnesses and evidence may disappear
over the years. Also, generally speaking, younger plaintiffs
make more sympathetic witnesses in sexual abuse cases.
Therefore, one should bring a case for childhood sexual
abuse as soon as possible but certainly before his or her 26th
birthday. If the potential plaintiff is over 26 years old, he
or she should not give up, and should still seek the advice of
an attorney; however, the case may be more difficult to win.
iii. Special filing requirements for delayed
discovery cases.
In cases in which a plaintiff over 26 years of age brings
a lawsuit based on childhood sexual abuse, the plaintiff must
file certificates of merit by an attorney and mental health
care practitioner stating that the mental health care
practitioner reasonably believes that childhood sexual abuse
occurred, and the attorney reasonably believes that the
plaintiff did not discover his or her injury more than three
years before filing of the lawsuit.
There are other specific pleading requirements in this
type of case that are detailed in California Code of Civil
Procedure section 340.1.
G. Injuries Flowing from Sexual Abuse.
Victims of sexual abuse are entitled to recover for their
physical injuries, which are infrequent, and their mental
injuries, which are sometimes permanent and disabling.
Studies have established that victims of serious childhood
sexual abuse frequently develop symptoms such as depression,
anxiety, withdrawal, acting out and multiple physical
complaints. As they get older, they frequently have
difficulty developing the type of trust necessary to establish
solid bonding in relationships. They tend to be retraumatized
very easily at any reminder of the early sexual abuse, which
can be something as innocuous as a flirtation or a “normal”
sexual act.
Unfortunately, adults that were sexually abused as
children have a tendency to be sexually abused again as an
adult by clergy, psychotherapists, doctors and other people
who are supposed to help them.
Both child and adult sexual abuse victims tend to be
filled with guilt, low self esteem and a sense of
worthlessness. Frequently there is disturbance in sleep,
eating and relationships.
Not infrequently, sexual abuse victims require very long
intensive therapy and hospitalization which can become very
expensive. This is the reason why sexual abuse victims
frequently bring lawsuits, i.e., to have some help to pay for
treatment.
H. Damages.
In a sexual abuse case, plaintiff can recover for past
medical expenses, future predicted medical expenses, past wage
loss, future predicted wage loss and for past and future pain
and suffering.
The medical expenses are determined by the testimony of
physicians or other health care providers. Frequently, an
economist or an expert in the industry determines the amount
of future wage loss; however, no expert can testify to the
value of pain and suffering.
Pain and suffering is typically the most significant
element of a plaintiff’s damage and it includes emotional
distress. Contrary to popular belief, there is no formula for
pain and suffering awards and it varies greatly from case to
case depending upon the location of the case, the seriousness
of the injury and how well the case is presented.
I. Punitive Damages.
Under California law, if a plaintiff can prove that the
conduct of the wrongdoer was fraudulent, malicious or
despicable, he or she is entitled to recover punitive damages
which are intended to punish the wrongdoer and provide an
example for the rest of society. The focus of this type of
case is generally on the wrongdoing of the defendant rather
than on the injury to the plaintiff. The amount of punitive
damage will vary depending upon the heinousness of the
defendant’s misconduct and its economic status. The law
recognizes that large companies have to pay more money in
punitive damages to be adequately punished than small
companies or individuals. In motor vehicle cases, punitive
damages are most frequently awarded against drunk drivers.
J. Claim for Loss of Consortium.
A plaintiff’s spouse can also sue and recover damages for
“loss of consortium.” A spouse is allowed to recover damages
for the loss of society, comfort and care that result from the
injured spouse’s unavailability due to the injury. In order
to recover these damages, a spouse must be named as a party to
the lawsuit and must have been married to the plaintiff at the
time of the injury.
There are advantages and disadvantages to filing a loss of
consortium claim that should be discussed with an attorney
before filing.
K. Insurance Coverage in Sexual Abuse Cases.
i. Sexual act exclusions make establishing
insurance coverage difficult.
Sexual abuse cases almost always involve highly complex
insurance coverage issues. Virtually every liability
insurance policy (other than some insurance policies offered
to employers which provide coverage for sexual harassment)
contain exclusions for intentional and sexual misconduct.
This includes insurance policies offered to homeowners,
hospitals, churches, doctors, psychotherapists, motor vehicle
owners, accountants, attorneys, schools and just about every
type of business that one can think of.
ii. Illegal to insure for criminal misconduct.
Further, under California law, it is illegal for a person
to be insured for criminal misconduct and most forms of sexual
abuse involve criminal misconduct.
iii. Ways around insurance policy exclusions.
Thus, it is extremely difficult to establish insurance
coverage in sexual abuse cases. However, an attorney
specializing in sexual abuse cases may be able to find some
ways to establish insurance coverage. Frequently, especially
in cases involving the sexual abuse by a professional or
teacher, the plaintiff can establish that he or she was the
victim of negligent conduct, as well as the sexual/intentional
misconduct. The plaintiff can argue that the negligent
misconduct should be insurable. For instance, a patient of a
psychiatrist may be able to establish that, in addition to
sexually abusing the patient, the psychiatrist prescribed
improper medication which caused harm. In that situation,
clearly the negligent misconduct should be insurable. Another
example would be a patient who is raped by an orderly in a
hospital, but completely separately, is misdiagnosed for a
heart problem which later causes a heart attack. Again, at
least the negligent conduct would be insurable.
In most cases where adults are sexually abused, an
attorney can plead some legitimate act of negligence which
should bring at least part of the case within insurance
coverage.
iv. Special problems establishing insurance coverage
in case of child sexual abuse.
This gets much more difficult in the case of minors. The
California Supreme Court has held that sexual abuse of a minor
is always a crime; therefore, under almost no circumstance can
a victim recover under the perpetrator’s insurance policy.
However, in cases in which the minor plaintiff is suing
someone for negligent supervision or negligent hiring of a
perpetrator, she or he may be able to establish insurance
coverage against the negligent supervisor or hirer if
negligence is proven.
In terms of establishing insurance coverage for acts of
molestation which occur inside an insured home, it is becoming
increasingly difficult to obtain insurance coverage even on a
negligent supervision theory since many of the homeowner
insurance carriers are now writing insurance policies
excluding coverage, not only for the perpetrator, but anybody
else in the household who acted negligently in not warning the
victim of the potential perpetrator or not protecting a victim
against a perpetrator.
Insurance coverage issues in sexual abuse cases are
constantly being litigated and the law frequently changes;
thus, someone should always check with an attorney before
deciding whether or not to proceed in a sexual abuse case
since the presence of insurance coverage is important.
L. Key Factors in Sexual Abuse Cases.
The most important factor in a sexual abuse case is the
credibility of the plaintiff, whether an adult or child. In
most circumstances, if the plaintiff is not believed the case
will be lost unless there is significant evidence pointing to
abuse by the alleged perpetrator. Thus, in any sexual abuse
case, from plaintiff attorney’s point of view, it is critical
that the plaintiff maintains credibility.
In cases involving young children, a critical factor will
be how and when the abuse is reported. If the abuse is
reported soon after it occurred, it will normally be easier
for plaintiff to prove the case. If it is reported some time
later, or even if it is reported right away, the manner of
reporting will become the prime focus of the case. The key
factor is whether the child voluntarily reported the abuse
uncoached and unled by the person that the child is reporting
to, whether a parent, teacher, relative or police officer. If
the defense can establish that the adult who receives the
report asked suggestive questions to the child, it hurts the
case tremendously.
Another factor that is important in child abuse cases is
whether the child reports the abuse in a manner that is age
appropriate. For instance, two-year-olds will generally not
say “he made me touch his erect penis;” they are far more
likely to say something such as “he made me touch his wee-wee.”
Another important factor in child sexual abuse cases is
whether or not an evaluating psychiatrist or psychologist can
establish that during the evaluation, the child engages in
reenactments which would be consistent with the sexual abuse.
For instance, if while playing with dolls during the
evaluation, the child treats the dolls in a very sexual
manner.
Of course, in the rare cases in which there is actual
physical evidence of sexual abuse, a child plaintiff will be
in an advantage in the case as long as there is evidence that
the particular perpetrator was the person who physically
injured the plaintiff.
In adult cases involving prohibited sexual relationships,
such as cases against doctors and psychotherapists, the key
factor will be establishing that the sexual relationship
occurred at all and that the relationship occurred during the
time of treatment or, in the case of psychotherapists, within
two years of the date of treatment. Even if the plaintiff
cannot prove that actual sexual relationship occurred, if the
plaintiff can establish a breach of appropriate boundaries by
the doctor or psychotherapist, it will indicate that sexual
abuse also occurred.
In other adult cases of sex abuse and sex harassment, the
key issues will be, first, whether or not the sex or sexual
harassment occurred and, then, whether or not it was welcomed
or consensual or unwelcomed and nonconsensual. This will
generally depend upon the nature of the relationship between
the plaintiff and the defendant, the testimony of any
witnesses and any physical evidence of sexual abuse or
resistance. By the nature of the relationship, we mean that
if the abuse is alleged against a stranger to the plaintiff,
i.e., somebody who they met for the first time, it will
generally be easier for the jury to believe that the
relationship was nonconsenual. However, if the plaintiff and
defendant had a long time personal or sexual relationship,
even though sexual abuse may very well have occurred, it will
be harder for a jury to believe that it occurred.
Finally, when analyzing sexual abuse cases, a key factor
will be whether or not there is any potential for insurance
coverage, whether the defendant has enough assets to pay for
the case, or whether or not somebody else can be held
responsible for the perpetrator’s sex abuse such as an
employer, the premises owner such as a day care center owner,
or somebody who had a duty to stop the abuse from occurring or
warning plaintiff of the abuse or the potential for abuse.
M. Settlement of Sexual Abuse Cases.
In terms of determining the value of a sexual abuse case,
the lawyers will generally look to the amount of money that
jurors have awarded in other sexual abuse cases in similar
jurisdictions.
However, this analysis may not be particularly helpful in
sexual abuse cases because they vary so much depending upon
the credibility of the parties and the nature of the plaintiff
and defendant. A plaintiff, for instance, will receive a much
higher award for the exact same injury if he or she can
establish that the perpetrator had abused other children or
adults in the past, even if the plaintiff in a case in which
there is only evidence of abuse to the plaintiff has a greater
injury than a case in which there is evidence of multiple
victims.
Thus, a better way to determine the potential jury verdict
value in a sexual abuse case is to perform a mock jury/focus
group in which the case is presented to, for instance, 12
citizens of the county in which the case will be tried in an
abbreviated fashion. Then the “mock” jurors are asked to
deliberate and give their opinion of the case and what they
would award if they were on the jury. Once that is
determined, plaintiff will have some guidelines as to what
their case is worth in settlement since it makes no sense to
try a case if the defense is willing to offer the jury verdict
value for settlement.
In addition to determining the potential jury verdict of
the case, the settlement of a sexual abuse case will be
heavily dependent upon whether the perpetrator has sufficient
assets to cover the plaintiff’s injuries, whether there is any
possibility of obtaining insurance coverage (generally, this
is very difficult due to policy exclusions) and whether there
is some third party other than the perpetrator who will be
held responsible for paying damages.
If there is not some fund of money available to pay
damages, then the validity of the plaintiff’s claim and the
extent of the plaintiff’s trauma or injury becomes irrelevant.
In cases where there is a potential for insurance
coverage, a plaintiff attorney should attempt to skillfully
plead at least one cause of action for negligence that has
nothing to do with the sexual abuse. This may allow for
insurance coverage.
In cases in which the perpetrator is wealthy, the
perpetrator will generally hire expensive attorneys and put up
a substantial fight. In those cases, it is important that the
plaintiff retains an attorney who is able to match the
expenses of the perpetrator’s attorney and work up the case to
establish the significant value and risk for a large verdict
on behalf of the defendant.
In cases in which the perpetrator is neither insured or
wealthy, a plaintiff attorney must attempt to establish
liability on some other party such as, in the case of child
abuse, the owner of a day care where the abuse occurred; in
the case of a sexual assault in a building, the owner of the
building if the owner had prior notice of prior similar
crimes; in the case of sexual harassment, proving that the
harassment was perpetrated by a supervisor or that the
employer had notice of the potential for abuse and didn’t take
sufficient steps to prevent it; or in the case of professional
sexual exploitation, that the perpetrator worked in a clinic,
hospital or some other setting where the insured hospital or
clinic should be found responsible for the abuse because the
employee was acting within the course and scope of their
employment or that the employer/owner knew of the potential
for abuse and did not take sufficient steps to prevent it. If
a plaintiff can establish some fund of recovery, then they may
be able to recover something close to the full settlement
value of their sexual abuse case.
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