What is Sexual Abuse?
Although there are varying definitions for “sexual abuse,” violent acts that can be considered sexual abuse when a person – child, adult woman or man — is exposed to or engaged in sexual activities in which the victim cannot or does not consent, or are coercive in nature, or violate the law, or when there is a developmental asymmetry among the participants. The sexual activities may include any of the following: fondling of genitalia or breasts, oral‐genital contact, vaginal or anal penetration, exploitation in pornography or prostitution, exhibitionism, or voyeurism.
What should I do if I’ve been sexually abused or I know someone who’s been abused?
Sexual abuse is a crime. For that matter, unwanted contact whether sexual in nature or not is also criminal. If this should happen to you or a loved one, immediately report the incidents to the police. Insist that a detective trained in sexual assault cases be assigned to investigate. Many police forces have special units, such as a sex crimes unit or special victims unit, whose officers who are trained to obtain information that a uniformed officer simply is not prepared for. These specially trained officers will also help in guiding you to other agencies and people who can assist and support you such a difficult and traumatic period.
Immediately have a hospital or your own doctor examine the victim for any physical signs of sexual contact and to test for sexually transmitted diseases. Do not wait to be medically cleared. If you wait too long, crucial evidence can be lost forever and compromise any claim you may have, whether it is a criminal or civil case.
Even if the physical results of sexual abuse heal, the emotional and psychological effects can be long-lasting and life-altering. You should immediately contact a psychologist or counselor for yourself or your child. There are many specially trained counselors and treatment centers which provide the support needed after such a traumatic event. Failure to seek help can result in lifelong emotional and physical impairments that can affect the victim’s ability to live a normal and productive life. Without early and consistent emotional support and competent professional psychological treatment, sexual abuse victims’ lives can be ruined or greatly impaired. The family of victims is also traumatized. In addition to individual counseling, family counseling is often needed as well for everyone to learn how to cope with such trauma.
As difficult as it might seem, you should contact and secure the representation of a civil lawyer who has significant experience in successfully handling these types of cases. A civil lawyer looks beyond a criminal conviction that is pursued by criminal prosecutors and can answer questions that may go unanswered by district attorneys.
Can I recover damages if I’ve been sexually abused?
Civil actions brought by victims of sexual assault have recently been increasing at an exponential pace. Victims pursue claims against attackers as well as additional defendants known as “third parties.” In fact, civil claims can even be brought against attackers regardless of whether there was a successful or unsuccessful criminal case – or even if there has been no criminal prosecution at all.
Third party defendants can include businesses, athletic trainers, school districts, bus drivers, Boy Scout leaders, property management companies, foster care agencies, religious institutions, hospitals and treatment centers, and any other organization or institution that must protect those who are either employed or otherwise receiving the benefit from these entities. Litigation against these third parties concerns their responsibilities to use reasonable care to protect against foreseeable sexual assault. For example, a nursing home may be sued for negligent hiring if it hires an employee with a history of criminal or sexual misconduct to care for a vulnerable patient. Likewise, a school district may be at fault for ignoring complaints about a teacher or administrator who has a history of complaints of inappropriate contact with students. Further, a foster care agency may be liable for a foster parent’s sexually abusing a child in whose care and trust the child is placed in the foster agency has reason to know or is aware of prior misconduct of the foster parent. Landlords and property management companies also can face liability if an intruder breaks into an apartment complex and commits a sexual assault where a broken lock or inadequate security has been long-standing and was never addressed.
A common and frequent element throughout all civil sexual abuse cases is that the defendant failed to appropriately train staff and employees to recognize and properly respond to signs of sexual abuse or misconduct. This is why many companies and organizations should have policies in place not only to recognize the circumstances of possible sexual abuse, but also have protocols to timely and appropriately respond to such reasonable suspicions.
Where victims of sexual abuse may not receive the outcome they need through the criminal process, civil litigation has shown in many cases to provide victims with greater satisfaction by being represented by their lawyers, achieving financial compensation as well as feeling a sense of closure through the litigation.
Additionally, a victim who brings a lawsuit is in control of many important decisions involved in the litigation. Whereas the criminal standard is to secure a conviction “beyond a reasonable doubt,” the civil standard is much lower, known as “preponderance of the evidence.” In this regard, the victim can feel empowered in not only navigating the civil litigation under the care of legal counsel, but also be in a position to decide on whether to proceed to trial or whether to settle the case. A settlement may include both financial compensation as well as prescribing terms as to the perpetrator, such as a requirement for the perpetrator to transfer jobs or attend counseling.
Sexual assault is horrific and its implications are far-reaching. Criminal law can provide one form of justice for victims, but civil law also provides a number of possible outcomes that can provide justice and a sense of satisfaction.
Can businesses be held responsible for sexual assault?
Take any hotel chain – Marriott, Sheraton, or Best Western. What do they do as a business? They market and advertise that you should stay with them while away from home. Their commercials show clean and inviting rooms with friendly and caring employees. They want your business, or in other words, they want your money. In return, they represent that you will be safe, attended to, and comfortable. Yet aren’t those qualities what we expect when we stay at a hotel? We may take valuable belongings on our trips and when we lock the door at night, we want to feel secure that we will sleep without intrusion or threat of harm. Even access to elevators and floors are limited by the room key. That most large hotel chains have security in each hotel demonstrates the very real potential for theft, injury and assault.
Now let’s take an example that a hotel guest is assaulted on the floor where the guest’s room is located. Could the hotel be held liable for the injuries suffered by the guest? Possibly. Let’s further assume that for a week before the attack, security and hotel management were aware that one of the elevators was not working properly and allowed anyone access to all floors. Further assume that during that same week, two people who were not guests were found on different floors trying to open the doors of guest rooms and they were detained by hotel security with the police being called. With these circumstances, the hotel could very well be liable. If the hotel did not repair the elevator access system and did not increase security within the hotel and on the guest floors, a good case could be made that the hotel was negligent in failing to provide the victim with sufficient security or notice of the safety problems and criminal activity that was occurring. Common sense would conclude that the hotel did not act reasonably under these circumstances to protect their paying guests.
Here’s another example: a hotel employee grabs a woman and assaults her. Here we don’t have what we call a 3d party committing a crime – an outside criminal — but an employee of the hotel. In this situation, whether the hotel is liable again depends on the circumstances. If the hotel did its job in performing a thorough background check of the employee, and there was no other indication of such behavior, the hotel may argue that it had no notice that such a crime would or could be committed. However, if the hotel’s background check of the employee was deficient in not following up with references, checking criminal databases, and/or failing to monitor the employee while working, then a case against the hotel may succeed if it turns out that the employee had a past violent criminal background or otherwise acted aggressively and inappropriately while working. In short, the question will be whether it was foreseeable that such an assault could have occurred by the employee.
Another area for business liability for criminal conduct involves businesses in “high crime” areas. Take for example a bar that is not only located in an area where crime is high, but numerous crimes, such as assault and battery, have occurred during the operation of the bar. Again, if a bar is open to the public for business, and the bar knows of the frequency of the crimes that take place on its property, the bar management must have security that increases the safety of patrons by reducing the possibility of future criminal conduct.
This might include increasing the number and visibility of bouncers, using metal detectors for all patrons to pass through to enter the bar, making sure there is good lighting throughout the bar, making sure the bartenders are certified in evaluating intoxication, and hiring special security professionals to review and make recommendations.
These are just some examples demonstrating how businesses can be held liable to guests and patrons who are injured due to crime. With technology and specialization today, businesses are expected to have adequate security to protect their guests. Cutting corners or failing to incorporate these methods to maintain safety standards is negligence.
What should I do if my child is attacked or sexually abused by a teacher?
As stated above, any child sexually assaulted needs to be protected with immediate intervention. Law enforcement and child protective agencies must be involved as soon as possible. But schools districts and administrators have an added obligation. In Pennsylvania, there is a law that is about 20 years old that requires teachers and administrators to report any student sexual abuse or assault committed by educators. Pennsylvania’s Educator Discipline Act (EDA) is not known by most educators and parents. The EDA applies across the board – to public or private licensed academic schools and contracted educator providers.
The EDA is potent, but only if its requirements are known by those who are empowered by it – our educators and administrators which number nearly 900,000 across the Commonwealth of Pennsylvania.
In short, the purpose of the EDA was to take away the discretion of each school district in disciplining their teachers. For the same offense, different school districts could handle misconduct wholly differently. Where one district might fire a teacher for moral turpitude, such as sending a student messages that were sexual in nature, another district might simply put a private reprimand in the teacher’s employee file. Worse still, such as in Philadelphia, the principal of a school would investigate their own teacher and decide whether discipline was even warranted. There was no requirement or policy to notify central administration of allegations of abuse or assault. Even if the abusive teacher was given some form of discipline (that is left up to the principal), nothing officially was required to be put into the teacher’s employment file. In many cases, teachers who committed misconduct were simply taken from one school and placed in a different school without anyone knowing the teacher’s history.
Even if an offense leads to termination, under the EDA, the educator and school district cannot avoid publicly reporting the misconduct by entering into a confidentiality agreement whereby the school district agrees not to mention or publicly disclose the reasons for termination. The public has access to all educators who have been disciplined under the EDA.
The EDA was designed to make certain offenses reportable to the Professional Standards and Practices Commission in Harrisburg. Once such a report is received, the Commission undertakes an investigation to determine not only if the educator’s license should be suspended or revoked, but also if the case should be referred to authorities for consideration of criminal prosecution.
Again, for the EDA to work, schools and educators must be aware of its requirements and act on any conduct that might trigger a report to the Commission. Failure to file a reportable offense itself can lead to disciplinary action. Under the Educator Discipline Act, all chief school administrators are required to report within 15 days:
(1) Any educator who has been provided with notice of intent to dismiss or remove for cause, notice of non-renewal for cause, notice of removal from eligibility lists for cause or notice of a determination not to reemploy for cause.
(2) Any educator who has been arrested or indicted for or convicted of any crime that is graded a misdemeanor or felony. For purposes of this section, the term conviction shall include a plea of guilty or nolo contendere.
(3) Any educator against whom allegations have been made that the educator has:
(i) committed sexual abuse or exploitation involving a child or student; or
(ii) engaged in sexual misconduct with a child or student.
(3.1) Information which constitutes reasonable cause to suspect that an educator has caused physical injury to a child or student as a result of negligence or malice.
(4) Any educator who has resigned, retired or otherwise separated from employment after a school entity has received information of alleged misconduct under this Act.
(5) Any educator who is the subject of a report filed by the school entity under the reporting requirements of 23 Pa.C.S. Ch. 63 (relating to child protective services).
(6) Any educator who the school entity knows to have been named as the perpetrator of an indicated or founded report of child abuse or named as an individual responsible for injury or abuse in an indicated or founded report for a school employee.
Astonishingly, more than 50% of those educators who have been reported under the EDA were found to have sexually abused or assaulted students. This is a shockingly high rate of inexcusable misconduct. This statistic alone confirms that there are sexual predators in our schools who have been entrusted with the care and welfare of our children. In fact, there is yet significant underreporting of EDA offenses to the Commission. There is always a level of “protectionism” and “cover-up” that goes on with such sensitive matters. The tragic outcome of such attitudes is clear – the victims, who are our vulnerable children – continue to suffer and remain in an environment that is not as safe or supportive as we would want for our children to develop and grow.
What do I do if I am sexually harassed on the job?
Immediately let the person harassing you that the actions/statements are unwanted and then report the incident to your supervisor or company owner. Also, have any witnesses give written statements to you of what they witnessed. Keep a journal of the incidents if there is more than one incident. Keep reporting the incidents.
If the employer or owner does not take effective immediate remedial action against the offender, report the problem to either the state or federal labor commissions. In Oregon, it is the Bureau of Labor and Industries, and the federal government operated the Equal Employment Opportunities Commission. Either one of these entities can take your complaint, investigate it, and provide you with their findings which can help you in the event you decide to sue the offender and/or the company for sexual harassment or for maintaining a hostile work environment.
Can sexual comments on the job be a form of sex abuse?
Yes. But this type of sex abuse is called sexual harassment or hostile work environment. There are state and federal laws prohibiting this behavior. Statements suggesting sexual encounters or physical touching with the intent to arouse either person can be sexual harassment.