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Sometimes a civil lawsuit can be a constructive step in the healing journey. In my practice, I am often asked when it is a good idea for an abuse survivor to pursue a civil lawsuit. In order to answer that question, we have to look at what makes a strong case for damages for sexual abuse. There are three main aspects to a successful civil case: Liability, damages and enforcement of a judgment.
Liability simply refers to establishing that a legal wrong has been done. Obviously, any sexual contact with a child is legally wrong. Sexual contact with an adult who is not truly consenting is also sexual assault. It is important to remember that a consent is not a true and valid consent if it is obtained by threats, intimidation or through a breach of a fiduciary duty, such as a doctor and patient relationship. In some cases, the perpetrator admits that the abuse occurred. If the perpetrator does not admit it, the burden is on the plaintiff or abuse survivor to prove the assault occurred. The best evidence would be a prior criminal conviction against the perpetrator for assaulting the plaintiff. If the perpetrator has been convicted, the plaintiff can use that conviction as proof in the civil case. If the perpetrator has not been convicted, then we have to look for other corroborating evidence. However, a court can find that the abuse occurred based on the survivor's word alone.
In a civil case, we also have to consider judgment enforcement. In other words, does the perpetrator have money to pay a settlement or judgment? If the perpetrator does not have money to pay the judgment, then a civil lawsuit may not be worthwhile. Sometimes, the perpetrator is employed by or affiliated with an institution or organization that could be liable for the abuse and responsible for paying damages. For example, in the case of priests or other clergy, the church may be liable for the abuse. Similarly with teachers, the school may be liable. Or a children’s aid society could be liable for abuse by foster parents. Other organizations would include organizations like Boy Scouts, Big Brothers and even the government in some cases. For example, in case of abuse in training schools, group homes or other similar facilities, the government may be liable as well. There are generally two ways an institution can be found liable, in some cases, based on the type of institution there is vicarious or automatic liability.
In other cases, the institution is liable if they were negligent, which means they fell below the standard of a reasonable institution and acted unreasonably.
Examples would be failing to check the perpetrator's references or failing to properly respond to complaints or investigate complaints.