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Answers to the Twelve Most Frequently Asked Questions in Sexual Abuse Cases (1)
1. Who can bring a lawsuit in California for sexual abuse?
Anyone can bring a lawsuit if they have been sexually abused
by another person. This includes males, females, adults and
children.
2. What if the sexual abuse is perpetrated by a member of the
same sex?
It does not matter. Same sex abuse is prohibited.
3. Can adults bring cases of sexual abuse?
Yes. Adults can bring cases for sexual abuse that occurred
when they were children or sexual abuse that occurred while they
are adults as long as they bring the case within the statute of
limitations (see below).
4. What is sexual abuse?
There is no one specific definition for sexual abuse.
Whether or not an act will be considered sexual abuse under the
law depends upon the circumstances under which the act occurred
and the age of the participants.
5. How does the law define sexual touching?
There are a number of different definitions. Sexual
touching is generally defined as the touching of or the touching
by an "intimate part" of a person which includes "the sex organ,
anus, groin or buttock of any person or the breasts of a female."
6. Does the sexual touching have to be nonconsentual to be
considered abuse?
In most cases a plaintiff will have to establish that they
did not consent to the sexual contact to prevail in a case for
sexual abuse. The hallmark of most sexual abuse cases is the
existence of unwanted or unwelcomed sexual touching.
However, there are certain classes of people who are
protected from any sexual touching whether or not they consented
and whether or not the touching was welcomed. For instance, it
is absolutely prohibited for an adult to have any type of sexual
contact with a minor,i.e. a child under the age of 18, welcomed
or unwelcomed. The same rule is true for people who are found to
be so mentally incompetent that they are not able to give consent
as long as the perpetrator knew of the level of the person's
incompetency. Further, all licensed healthcare providers are
prohibited from engaging in any type of sexual contact with
patients during the time of treatment, and psychotherapists are
prohibited from engaging in any type of sexual contact with a
patient during the time of treatment and at least two years
thereafter. In these cases, consent is irrelevant.
7. Can someone beside the perpetrator be sued for sexual abuse?
Yes. If the abuse involved sexual harassment in the
workplace, the employer may automatically be held responsible if
the abuse was perpetrated by a supervisor and will also be found
responsible if the employee can establish that the employer knew
or should have known that employees were at risk of harassment or
abuse from the co-employee.
A plaintiff, under certain circumstances, may also be able
to bring an action against the employer of a perpetrator or
someone who failed to take sufficient action to protect the
public from a perpetrator. This can only be determined on a case
by case basis.
8. How long do I have to bring a case for sexual abuse?
A minor has at least until his or her 26th birthday to bring
a case for sexual abuse which occurred while the plaintiff was
under 18. Further, if the plaintiff can establish that he or she
did not discover injury from unlawful conduct until after they
were 26, they have until three years from the date of discovery.
(An important exception to this rule is that a claim against a
governmental entity such as a school may have to be brought
within six months, or at the latest one year from the act of
sexual abuse.) An adult has one year from the date of
discovering harm from the sexual abuse to be able to bring an
action. There are many exceptions to the statute of limitations
and, therefore, an attorney should be consulted before initiating
or giving up on a potential sexual abuse case.
9. What damages can I recover if I have been sexually abused?
If a plaintiff can prove sexual abuse, he or she is entitled
to recover damages for past and future medical treatment, past
and future wage loss, damages for pain, suffering and emotional
distress, and, if the plaintiff can establish bad enough conduct
on the part of the perpetrator or company, punitive damages (i.e.
damages intended to punish the perpetrator or the employer).
10. Do I need an attorney to bring a sexual abuse case?
Although technically a plaintiff can bring a case without an
attorney, sexual abuse cases require the skill of a good attorney
more than almost any other type of case. It is important that
the plaintiff's attorney is aware of the special protections
provided to sexual abuse victims in litigation and that the
attorney understands the serious, life-long consequences that
frequently flow from sexual abuse. Further, in cases against
psychotherapists and healthcare providers, it is particularly
important that an attorney understands why the law recognizes
that a patient can never consent to a sexual relationship under
the circumstances.
11. Will my sexual abuse case settle out of court?
Probably. Most sexual abuse cases settle. Sometimes they
can even settle very early because of a defendant's fear of
publicity.
12. Will I be able to recover under the perpetrator's or some
other person or entity's insurance policy?
Maybe. You will probably not be able to recover against the
perpetrator's insurance policy for sexual abuse, but there may be
acts of negligence which will afford coverage. Also, if a third
person or entity is responsible for the abuse as a result of
their negligence, you will probably be able to obtain coverage
under their insurance policy.
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