February 5, 2019
By Steven B. Barrett, Esq.
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 concern 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 if 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. 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.