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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 two-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. Some of these causes of action may have a one-year statute of limitations but some will be two.

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.

There are a number of situations in which a court may find that a plaintiff is excused for not bringing a lawsuit within one or two years. First, plaintiff might not be injured by the wrongful act until more than one or two years 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 nonconsensual. 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.

This article was authored by John D. Winer. Winer, Burritt & Scott, LLP

specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases.

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