If I Was a Victim of Sexual Abuse, Can I Sue Both The Person Who Abused Me and his Employer or the Owner of the Business or School Where It Happened?
Yes, but it depends upon the specific facts of what happened and when it happened.
In order to answer the question of whether you can sue a business, such as your employer for spreading the Coronavirus to you, we must first understand some basic concepts of Indiana law.
These concepts that must be explained include:
- What is a Negligence Lawsuit?.
- How is Criminal Prosecution Different Than a Civil Cause of Action for Negligence?
- Who Are the Parties in a Criminal Case versus a Civil Case for Sexual Abuse or Sexual Assault or Child Molestation?.
- The Burden of Proof in a Civil Lawsuit for Sexual Abuse, Sexual Assault or Child Molestation
- If the Injured Person is Successful in Proving the Assault and/or Abuse, what is the remedy?
- If a sexual abuse case is proven to have occurred in a civil lawsuit, who pays and how much is it worth?
What is a Civil Lawsuit based Upon Negligence or Fault?
A civil lawsuit can include a “negligence” claim filed against a person or a group or business that failed to act reasonably or acted unreasonably under the specific set of circumstances which led directly to an injury or loss to a person.
In a civil case, the Plaintiff (injured party) would allege the Defendant – a person and/or business -- caused injuries and damages to the person who was sexually abused or sexually assaulted. These injuries can be physical and/or mental in nature.
Criminal Prosecution Versus A Civil “Cause of Action”
In a criminal case, the government (often the State where the occurrence took place), brings a criminal case against the perpetrator. All criminal law cases are based upon a violation of a written statute in a criminal code book.
On the other hand, a civil lawsuit does not necessarily have a written code book or statute for civil wrongs such as child sexual abuse or sexual assault. These violations are often found in “common law” cases. This means that other cases in the past have developed “causes of action” or violations that have taken on the effect of laws as if written in a statute book.
Since there is no cause of action known as “sexual assault” in civil law books, many sexual abuse litigants will list “causes of action” such as Intentional Infliction of Emotional Distress or Battery as a “cause of action” in its Complaint filed in Court against the Defendant.
The elements of truth (the foundational building blocks of a case) differ in a criminal case and civil case, too.
Both types of cases involving the same conduct can occur simultaneously or one after the other. There is NO requirement that a person must be convicted criminally before an injured person can sue in civil court for damages caused by the sexually abusive conduct.
Similarly, there is no requirement that the Defendant is convicted or found “guilty” in a criminal court before an injured person can seek damages for losses due to his conduct. A prime example of this concept was the infamous OJ Simpson murder case. He was not convicted by a criminal court, but found to be responsible for causing injuries to his former wife and the delivery person. His estate was liquidated to pay the civil judgment verdict in their favor.
Participants in A Criminal Case Versus A Civil Lawsuit
In a criminal case, there are usually two parties – the government (often the County Prosecutor’s Office of the state where the event occurred) and the alleged criminal defendant. Of course, there might be more than one criminal defendant in the case if the abuse was perpetrated by by two or more individuals.
In a civil lawsuit, things are not so clear. If the person alleging sexual abuse was a minor, then that minor’s identity could be shielded and the action would be officially named in court as the parent(s) or legal guardian(s) of the child against the perpetrator.
While both the criminal and civil case use the word “Defendant,” there are major differences between being a Defendant in a criminal case versus a civil case.
Burden of Proof
Defining “Burden of Proof “ is sometimes a difficult thing to do.
In short, it is the legal duty of one party to persuade the Judge or jury that enough evidence has been presented to persuade the trier of fact (the one who decides which facts are true – most often a jury, but sometimes a Judge if the parties agree in advance) that they are correct.
There are two major different standards in American cases – criminal cases and civil actions. In a criminal case, the government must prove its case “beyond a reasonable doubt” to the jury. This means some doubt can exist in the juror’s minds, but that doubt must be reasonable when evaluating it to find a person “not guilty.”
In a civil action, however, the standard of proof is called a “preponderance of the evidence.” This is a fancy legal term that means one side is more likely correct than the other, even if by the slightest of weight. I like to refer to it as which side is “probably” right. There can be lots of doubt in a juror’s mind that still finds for the party who was “probably” right.
Consequently, in a child sexual abuse case, the plaintiffs (the injured persons) must prove the act “probably” did occur and it “probably” did cause damages (losses of an economic or noneconomic nature like mental anguish, medical bills, impairment, disfigurement).
In a criminal case, the State (government) must prove a violation of each and every element of the statute found in a criminal code book. This often includes proof of when the event occurred, where it occurred, what occurred and the state of mind of the Defendant at the time of the event (intentional or reckless or negligent intentions).
In a civil case, the state of mind of the Defendant is not necessary to prove. But, the additional element of “proximate cause” is included. Proximate cause is colloquially defined as proof that the event directly caused the damages complained of by the Plaintiff (party bringing the action). In other words, the losses suffered by the Plaintiff must be proven to have been caused by the sexual assault and not some other unrelated event.
The Remedy For Sexual Assault in A Civil Lawsuit
This answer is relatively simple. In a criminal case, if the State (government) proves its case “beyond a reasonable doubt,” then the criminal Defendant could face jail time, fines, probation, and other sanctions against the offender if a conviction is obtained as a punishment.
In a civil case, punishment is not the goal, but rather compensating the injured person to make them “whole” again. Consequently, the only remedy in a civil case is an award of monetary damages to be paid by the Defendant to the injured person.
Who Can Be Held Responsible o Pay Money Damages
In some cases, a civil lawsuit can be maintained against more than just the Defendant. For example, if the Defendant performed the sexual assault at his place of employment or group activity (like the Boy Scouts of America sanctioned properties or a school) or another place of business, then an action might be brought against that organization, school, business, employer or group, if it can be shown that a duty existed from that group to the injured child or person.
The civil “causes of action” might include a negligent supervision theory by the school, business, employer or group that led to the sexual assault.
Other theories might include a lack of adequate security by the group, school, employer or place of business where the incident(s) occurred. This cause of action is particularly difficult to prove, however, due to recent case holdings of the Indiana Supreme Court which have decided that a determination of whether a duty to the injured person existed at the time requires a broad-based look at the type of Defendant and whether it was foreseeable that such illicit actions would have occurred. Please refer to our pages on Inadequate Security on this website for a more detailed explanation.
Another theory might include the action occurred during the course of employment by the perpetrator and that the group, school, business or employer is responsible as a result.
Finally, if the perpetrator performed similar actions in his past and the school, group, employer or business negligently failed to discover the prior acts or knew about the prior acts and still allowed the perpetrator to have access to the child or person, then negligent hiring or training might be another cause of action brought by the injured person.
Who Pays and How Much is A Sexual Abuse Case Worth?
The amount and type of compensation that is available in a civil lawsuit involving sexual abuse or assault depends upon the specific facts of the matter and the severity of the injuries.
Damages (losses and harms) in a sexual assault or sexual abuse case depends upon the severity of the physical and emotional harm the victim suffered. This includes past pain and suffering or future pain as a result of the abuse. Many victims continue in the future to suffer from anxiety, depression and Post-Traumatic Stress Disorder that can require future or lifelong treatments and therapies.
Another problem in cases like this includes making sure the Defendant has the adequate resources to pay a judgment in favor of the injured person. Sometimes, these judgments can exceed several hundred thousand dollars or more. Unless the Defendant has substantial personal assets or money, it might be very difficult to collect. Some Defendants might even try to declare personal bankruptcy and avoid paying for the damages he caused.
That is why Plaintiffs and their attorneys often try to engage insurance for the group, employer, place of business or school to be held responsible to pay any judgments.
This is sometimes difficult as most insurance policies exclude “intentional” acts (for example, if a person intentionally drives his vehicle over another person, the auto insurance company will not pay damages because the insurance policy was meant to cover only “accidents” and not overt criminal behavior).
McKibben Shaw Law (260) 777-7777 . Call or text that number now and ask for JJ Shaw, Attorney at Law. We Get You Back on Your Feet.
This is a very difficult hurdle that an injured person must clear before gaining a civil judgment against a perpetrator of sexual assault.
For adults, a person must bring a lawsuit in Indiana within two years of the injury or else the case is forever barred and waived.
Children have a different statute of limitations for injury that usually includes up to their 20th birthday.
Another difficult concept is whether the act was a single event or a continuous series of assaults. This determination could affect the statute of limitations calculation and perhaps extend it to the latest event.
There might be possible tolling (extending) of the statute under very unique and rare circumstances.
That is why it is important to hire the right lawyers with experience in this matters like McKibben Shaw Law.
“Not just the lawyers you need, but the lawyers you WANT.”- Tristen K