Child Molestation Civil vs. Criminal Lawsuits
In civil child molestation lawsuits, a victim files a complaint that will hopefully recover compensation for emotional and/or physical damages.
With a criminal lawsuit, the state files a charge against the perpetrator for any crimes that the person committed. The result, if convicted, would either be probation, community service, jail time, or prison time. In other words, a civil lawsuit is aimed to compensate the victim. A criminal suit serves to punish the offender.
The most common type of compensation that is received at the end of a civil trial or a settlement is money.
What is child molestation and what legal remedies are available?
Few crimes are more jarring to our community values and morals, and few inspire greater societal rage towards its perpetrator than the sexual abuse of a child. The legal definition of child molestation is a product of state statutory law, and varies by jurisdiction. Most states, however, relegate to this broad definition sphere any act by a person who forces, coerces, or threatens a child to participate in any type of sexual activity at the perpetrator’s direction. These definitions are broad, and include a wide ambit of both physical and psychological debasements of a child’s well-being. The spectrum of legally actionable behavior includes sexual intercourse, touching offenses such as fondling or forcing a child’s contact with adult’s sexual organs, and non-touching offenses, such as exposing a child to pornographic material, or engaging in indecent exposure or masturbation in front of a child. Acts of sexual exploitation, such as soliciting a child for the purposes of prostitution, or using a child to create pornographic work, may also be actionable as child molestation.
Child molestation is a criminal act that may be prosecuted by the district attorney. The criminal law holds such heinous acts of sexual abuse as an affront to not only the child victim, but to the social fabric of the state, and will seek as a redress the incarceration of the perpetrator as the ultimate act of justice. Yet this is not the only available avenue for legal action. A civil lawsuit against the perpetrator of child sexual abuse is an additional legal remedy. Unlike a criminal prosecution, a civil claim is critical in procuring restitution for the emotional, physical, and psychological injuries that may haunt survivors of child sexual abuse well into adulthood, and is the only means for obtaining financial recovery for trauma and emotional distress, hospital bills, and expenses associated with ongoing psychiatric therapy. Depending on the heinousness of the defendant’s conduct, punitive damages may also be available.
As we will explore below, there are several factors that contribute to building a sexual abuse case in civil court. However, it is important to understand from the onset that claims involving child plaintiffs pose unique issues and have necessitated exceptions and tweaks to traditional civil practice at nearly every stage of the process. The emotional and mental fragility of the child plaintiff often introduces unique credibility issues, making children vulnerable witnesses and difficult to depose, and have spearheaded the need for refined interviewing strategies as well as procedural and evidentiary reforms in child sexual abuse cases.
Building a civil case
To succeed in a civil child sexual abuse claim, the plaintiff must prove to the court that the statutorily defined sexual molestation occurred, that the plaintiff suffered injury, and that defendant’s act or failure to act was a direct and proximate cause of the injury. As minors are barred from directly suing in court, the claim must be brought on their behalf by an adult guardian.
The first and most important building block in constructing a successful case is ascertaining whether the claim is procedurally valid and within the appropriate statute of limitation in the jurisdiction. The unique situation of child plaintiffs in sexual abuse cases have profoundly affected procedural rules in civil courts. Most states have enacted special, extended statutes of limitations for childhood sexual abuse because of the difficulty younger victims may have fully understanding the abuse, recognizing the wrongfulness of the conduct, and then coming forward in a timely fashion. The majority of these “delayed discovery” statutes allow claims to be brought within one year of the plaintiff’s eighteenth birthday. Many jurisdictions have gone even further to procedurally accommodate childhood sexual abuse claims. In California, the plaintiff has at least until the age of twenty six to bring an action, and can sometimes bring it at an even later age if he or she can prove that the action is being brought within three years of the date that he or she reasonably should have discovered that the injury was caused by being sexually abused as a minor. However, as generous as these procedural rules are to plaintiffs, delayed discovery cases may be much more difficult to try and to win. The passage of time may erode memories and accurate recall of events, cause physical evidence to be lost or destroyed, and make witnesses unavailable because of death or relocation.
The second building block in bringing a successful claim is deciding who to sue. While most claims are brought directly against the perpetrator of the abuse, it is also possible to sue a third party who was responsible for the child, was aware or should have been aware that the abuse was occurring, and failed to take preventive or remedial action to protect the child. Possible third party defendants can include caregivers and institutions such as schools or summer camps if the abuse was perpetrated by a teacher or counselor. The decision to bring a suit against a liable institutional defendant is often a recourse if the direct perpetrator is financially incapable of satisfying a judgment.
Finally, and perhaps the most difficult building block, is gathering sufficient evidence to prove by a preponderance of the evidence every element of the cause of action. These elements include the occurrence of the abuse, the liability of the abuser or entity that failed to prevent the abuse, and the physical, emotional, or psychological harm that was caused. Child sexual abuse cases can be very difficult to prove largely because of the nature of the offense. Acts of sexual abuse are difficult to detect, often because there are no witnesses aside from the victim, and particularly in cases of prolonged abuse,no identifiable physical injuries. In such situations, the testimony of the child witness may be the only evidence, and the plaintiff’s credibility becomes the central issue.
Many states have enacted special exceptions to evidentiary rules – particularly the rule against hearsay –that address those situations where the child’s out-of-court statements about the abuse are rendered inadmissible in court for lack of credibility. The hearsay exception for child abuse victims is an important evidentiary reform because it rejects the idea that a child’s complaints of abuse are inherently suspect and that they require strict corroboration by additional evidence. Courts have instead recognized that the trustworthiness of a child’s hearsay statement depends on a totality of the circumstances analysis that considers the context surrounding that statement. Such reforms address the unique need in a child sexual abuse case for allowing the victim’s statements to be admitted in court, since, as we’ve established above, most of these cases lack witnesses or observable physical injuries.
Gathering the evidence
What types of evidence can be used to prove the elements of a child sexual abuse claim? The testimony of the plaintiff about the abuse will often be the primary evidence that the abuse occurred. Out of court statements by the plaintiff, recorded in interviews and depositions, will play a central role, as will the plaintiff’s in court testimony if the case proceeds to trial. Other direct evidence can also be presented in the form of eyewitness accounts of people who may have witnessed the abuse, accounts of people to whom the plaintiff disclosed information concerning the abuse, accounts of other people who have been abused by the same defendant, and in certain cases, documented medical evidence of the abuse.
Expert witnesses are often invaluable in proving the existence and extent of emotional and physical injuries. Testimony on the nature of sexual abuse by doctors, therapists, social workers, or other professionals can go a long way in explaining a child’s behavioral patterns caused by the abuse, psychiatric reactions to the abuse, or interpreting physical injuries caused by the abuse. Because the emotional, mental, and to a lesser extent, physical injuries sustained by the plaintiff are almost always at issue in sexual abuse cases, the plaintiff may be subjected to an independent medical examination, where the defendant chooses a medical or psychiatric professional to interview or perform tests on the plaintiff. In some jurisdictions, such exams may be court-ordered.
Civil cases involving sexual abuse of children, although less common than their criminal court counterparts, are critically important avenues in addressing the unique injuries to the child plaintiff and to proving needed compensation for the often silent yet lifelong mental and emotional injuries associated with sexual abuse. Though the road to recovery is long, the legal remedies available in civil court are a positive first step in the healing process.