Unlike the criminal case for child sexual abuse, which punishes the perpetrator, a civil lawsuit is meant to compensate the victim and his or her family.
A civil suit for child sexual abuse can be based on a number of different legal theories (these different theories are each called a “cause of action”).
Both the perpetrator and the perpetrator’s employers (in some cases) can be sued, either by the child or the child’s parents. This article discusses the various theories that might apply in a child sexual abuse (or “child molestation”) case and how a civil suit can be used to get compensation for the victims of abuse.
Interaction of Criminal and Civil Trials for the Same Abuse
A criminal trial based on child sexual abuse entails criminal prosecution of the perpetrator (the defendant) and perhaps some fines, but does not generally involve compensation for the victim or the victim’s family. A victim or the victim’s family (the plaintiff) can sue the perpetrator in civil court for money damages after the criminal trial is completed.
Depending on the application of a complex rule called collateral estoppel, it may be easier for a plaintiff to win a civil trial if the defendant has been convicted for the same acts in a criminal trial.
However, even if the defendant was not ultimately convicted in a criminal trial, a civil plaintiff suing for the same wrongful and illegal acts might still win a civil trial. This is because a plaintiff in a civil trial must show that it is “more likely than not” the defendant committed the sexual abuse — the prosecution in a criminal trial must show “beyond a reasonable doubt” that the defendant committed the acts. In other words, a jury does not have to be as certain about the defendant’s guilt to find him or her liable in a civil trial.
Who Can Sue?
Both the child and the child’s legal care giver — birth parents or otherwise — can sue for child sexual abuse. The child, usually represented by a parent or other guardian, can sue for the physical, emotional and other harm caused by the abuse. The care givers can sue for the emotional and related harm they have suffered knowing that their child was abused.
The Different Causes of Action in a Child Sexual Abuse Case
There is no one civil cause of action called “child sexual abuse.” Instead, a plaintiff suing for child sexual abuse can include a number of different causes of action in a single lawsuit. As with other cases, the same facts can make a defendant liable under a variety of legal theories. Although finding a defendant liable under multiple theories in a single civil suit does not necessarily mean a plaintiff will receive more in the way of money damages, it does mean the plaintiff has a better chance of winning the case.
The causes of action most likely to fit the facts in a child sexual abuse case are (the linked pages describe the requirements of each civil claim in detail): assault, battery, intentional infliction of emotional distress and negligent infliction of emotional distress.
Additionally, depending on the facts of the case, the defendant might be potentially liable for false imprisonment, if he or she threatened the child in some way or otherwise confined the child to a particular area.
An employer who failed to properly screen or monitor an employee that sexually abused a child could also be found liable under a negligent hiring or retention theory.
It is worth noting that intentional torts like assault and battery ordinarily require that the plaintiff did not consent to the defendant’s act. But even if a child in some way seemingly gave permission to the defendant to commit sexual abuse, the law holds that a child is incapable of giving valid consent to sexual acts.
The causes of action discussed here are not the final word. A skilled and creative plaintiff’s attorney could potentially find any number of other legal theories that fit the facts of a case. Causes of action are intended to be flexible — society and the legal system have long recognized that a defendant that has clearly done something wrong should not escape liability simply because his or her actions do not fit a pre-existing legal mold.
Damages in a Child Sexual Abuse Case
Regardless of the legal theory, the primary monetary damages in a child sexual abuse case will come from the physical and emotional harm the child victim suffered and will continue to suffer, as well as the emotional harm the care givers suffered and will suffer.
It is realistic to expect that a jury will sympathize with the victim and his or her family if the defendant is found liable, which can lead to large damage awards for unquantifiable, subjective injuries like emotional pain and suffering. Expert testimony may be necessary to inform a jury of what the estimated cost of, for example, years of therapy might be.