Sexual abuse claims present a web of emotional, psychological, and legal challenges. The heinous nature of such conduct, how and when it comes to light, and the impact it has on victims require plaintiffs’ lawyers to maintain a delicate balance of diligence and sensitivity in their representation.
Lawyers also need to be mindful of and ready to overcome significant roadblocks and pitfalls that can stand in the way of successful claims, from insurance coverage matters to questions of whether an employer is liable for acts of an employee or officer. At the same time, aggressive pursuit of sexual abuse claims and the fact-intensive nature of these cases can trigger or resurface painful feelings for clients that their lawyers must be prepared to address.
Client Intake Concerns
For a victim of sexual abuse, the decision to reach out to a lawyer and potentially sue their predators and others who may be responsible for their pain is a difficult and monumental one. It takes incredible courage for witnesses to come forward. The abuse may have occurred years or decades ago and victims may or may not have sought help. They may have tried to bury the trauma. . Often, something has happened in a victim’s life like a divorce, loss of a job through PTSD, newfound sobriety, or a psychological breakdown.
During the intake process, which will inevitably involve a discussion of the abuse, attorneys must tread carefully. Empathy, patience, and respect during the process are essential. While you need to develop a complete and detailed picture of the incidents and patterns of abuse experienced by the client, doing so has the potential to re-injure the client. Victims can be empowered by representation and avoid the risk of not being believed.
Initial conversations with a victim the client will extend beyond the abuse. You should discuss the impact it has had on their life, including their current circumstances, efforts to address physical, emotional, and psychological trauma, triggers and flashbacks, and effects the abuse has had on their career, relationships, and overall quality of life.
Cumulatively, these necessary steps have the potential to make a client reconsider whether they are prepared for the personal challenges of the process. That is one reason it is critical to set realistic expectations at the start of representation. Explain the basics of client confidentiality, your role as an advocate, the client’s rights and protections under the law, and how a decision to seek justice and compensation has the potential to empower them and help them reclaim their narrative.
Establishing a Viable Civil Claim for Sexual Abuse
As you develop the facts needed to support your civil sexual abuse claim, make sure that your inventory and timeline are as thorough as possible. Obviously, the first-hand recollections of your client will be a primary source for establishing the incidents and patterns of abuse. But as seared into the victim’s psyche as those recollections may be, they can fade in-depth and detail over time.
In your interviews with the client, try to ascertain the details regarding the first incident of abuse and an inventory of all subsequent incidents of abuse, including details such as:
- The identity of the abuser and their relationship to the client.
- Communications and contacts between the abuser and client that establish “grooming” of the client.
- The location of the abusive incident(s), including a description of the surroundings.
- The date(s) and time of the abuse
- What the abuse consisted of during each incident, including both the actions and statements of the abuser and the victim.
- The identity of any witnesses, the relationship between the victim and abuser, and the conduct of the abuser with other minors or potential victims.
- Any other sexual or physical abuse suffered by the client at the hands of someone other than the defendant;
- What the client did immediately after the abuse.
- Whether the client told anyone about the abuse, who they told, when they told them, and why they told them.
- If the client did not tell anyone or report the abuse to law enforcement, determine why they did not do so, and whether they are now willing to inform law enforcement.
Nature and Extent of Damages
The effects of sexual abuse on a victim, whether one incident or a systemic pattern, are devastating, long-lasting, and manifest in many ways. When developing an inventory of the client’s physical, emotional, economic, and consequential damages, consider the following:
- Costs of medical treatment for physical injuries.
- Costs of mental health treatment.
- Impact on education, including school graduations or dropouts.
- Impact on relationships, including marriages and divorces, as well as parent-child relationships; parenting; jobs.
- Employment and reputational impacts, including terminations, demotions, or other adverse employment actions.
- Bankruptcies and financial difficulties.
- History of drug or alcohol abuse.
- Depression, anxiety, PTSD, and suicidal ideation or attempts.
- Loss of enjoyment of life.
Potentially Liable Parties
To be effective, victims’ claims must be collectible. One must ask whether the perpetrator or his/her employer has insurance or assets to pay a judgment. Accordingly, any claim for compensation must include a comprehensive review of the nature and circumstances of the abuse to identify third parties whose acts or omissions facilitated or contributed to the abuse.
Such third-party claims can be brought under theories like negligent hiring, negligent supervision, premises liability, and general negligence for failure to use reasonable care to protect against foreseeable acts of sexual assault. Often, an abuser acted in part, with authority given by others.
Potential third-party defendants include:
- Universities and colleges, as well as fraternities or sororities.
- Landlords and property managers.
- Nursing homes and assisted living facilities.
- Hospitals and treatment centers.
- Bars, taverns, and dram shops.
- Churches and other religious organizations.
- Schools, school districts, and school contractors such as bus companies.
- Boy Scouts of America and other youth organizations.
- Salvation Army.
- Chartering organizations.
Collectibility and Insurance Coverage Issues
In addition to identifying potential third-party defendants, lawyers representing sexual abuse victims need to investigate all sources of funds for any judgment or settlement.
Beyond the personal or institutional assets of the defendants, insurance is the primary source of funds sought by sex abuse plaintiffs. Coverage disputes are often closely intertwined with civil sexual abuse lawsuits because of the intentional nature of the underlying conduct.
In Perreault v. Maine Bonding and Casualty Co., the Maine Supreme Judicial Court made it clear that where the insured is the abuser and the claims are based on intentional conduct, no coverage is available under a homeowners policy with any an exclusion for “injury – expected or intended by the insurer,” as “any injury produced by a criminal act of sexual abuse against a child is ‘injury – expected or intended by the insured’ within the meaning of the homeowner’s exclusion.”
The court also wrote that homeowner’s coverage for criminal sexual abuse of children is undoubtedly outside the contemplation of the parties to the insurance contract; indeed, ”[t]he average person purchasing homeowner’s insurance would cringe at the very suggestion that [the person] was paying for such coverage. And certainly [the person] would not want to share that type of risk with other homeowner’s policyholders.”
Coverage issues are less clear when the insured is a third-party and the claims are based on negligence and unintentional conduct. While recent decisions by the Law Court reach opposite results, Perreault’s stated public policy against insurance coverage for the abuser does not extend to exclude coverage for insureds whose negligence is a factor in causing damage from sexual abuse.
Representing Clients in Sexual Abuse Litigation
Every sexual abuse victim is different. Sexual abuse clients count on us to obtain the results and compensation that can help them heal. They also rely on us to treat them with the care, compassion, and sensitivity that can give them strength during and after the process. The legal and interpersonal challenges of representing plaintiffs in sexual abuse litigation are significant, but the rewards can be just as compelling.