Wednesday, January 27, 1999

Civil Remedies for Victims of Sexual Abuse

Civil Remedies for Victims of Sexual Abuse
© (1999) by Susan K. Smith    
Smith Law Firm - January 27, 1999

Introduction: A growing number of survivors of childhood sexual abuse (CSA) are looking to civil suits as a means to obtain justice and accountability. This article provides an overview of information relative to bringing civil suits, including legal and practical considerations. Because it is very difficult to generalize the law in all 50 states, victims are warned not to rely on the information in this article, but are urged seek the advice of an attorney in their state. See Finding a Victim's Lawyer.

Part I: Legal Considerations
Extended Statutes of Limitation for Survivors of Childhood Sexual Abuse The majority of the states now have some type of provision extending the statute of limitations for adult survivors of CSA, although the remedy varies depending upon state. See National Survey of Extended and Discovery-Based Statutes of Limitation Applicable to Claims of Childhood Sexual Abuse (rev. 1997). Some of the extended periods are provided for by legislative statute, and others are contained in "tolling" doctrines adopted by the courts. A tolling doctrine is a rule that postpones the date from which a statutory period is counted. A simple example would be a statute that that provides for "minority tolling." A statute that might runs 3 years from the date of the injury would run 3 years from achieving the legal age of majority (usually age 18). In some instances, tolling provisions provide a grace period if the victim is under a statutorily described disability when the statute expires (runs out).

Most provisions applicable to victims of CSA fall into basic categories. A number of states have adopted a combination of rules from one or more categories:

Minority Tolling. Most states have general minority tolling doctrines which provide that statutes do not begin to accrue (start counting) until the injured party reaches the age of majority, usually 18. The minority tolling provisions are applicable to all claims, regardless of type of injury. Some states also have extended minority tolling provisions for CSA victims. For instance, Connecticut's special statute of limitations for victims of childhood sexual abuse or exploitation (Conn. Gen. Stats. 52-577d), claims must be brought within 17 years of the victim's age of majority. There is no need for the survivor to prove that memory was repressed or that some other disability existed preventing the victim from bringing an action.

Delayed Discovery. Provisions based upon delayed discovery of the fact of the injury, i.e. the recovery of repressed memory. The statute of limitations would begin to accrue on the date that the memory was recovered. Delayed discovery provisions have been instituted by legislative statues and by courts adopting or applying "common law" (judge made) doctrines.

Delayed Discovery/Realization. Provisions based upon discovery of the injury and/or the fact that the injury or illness suffered by the victim was caused by the abuse. For an example, see Atty. Jo-Hanna Read's explanation of how Washington's statute works.

Incapacity Tolling. Many states have general provisions which toll statutes in the event of mental incapacity or insanity. Some jurisdictions have held that repressed memory or post-traumatic stress disorder constitutes "insanity" sufficient to toll the limitations period. See, e.g. Jones v. Jones, 242 N.J. Super. 195, 576 A.2d 316 (App. Div.) cert. denied, 122 N.J. 418, 585 A.2d 412 (1990); Phillips v. Sugrue, 800 F. Supp. 789 (E.D. Ark. 1992); Leonard v. England, 115 N.C. App. 103, 445 S.E.2d 50 (1994). A contrary result, however, has been reached in other states. See, e.g. Travis v. Ziter, ___ Ala. ___ (1996); Lemmerman v. Fealk, 534 N.W.2d 695 (Mich. 1995); Lovelace v. Keohane, 831 P.2d 624 (Okla. 1992); O'Neal v. Division of Family Services, 821 P.2d 1139 (Utah 1991); Burpee v. Burpee, 152 Misc. 2d 466, 578 N.Y.S.2d 359 (Sup. Ct. 1991); Hildebrand v. Hildebrand, 736 F. Supp. 1512 (S.D. Ind. 1990).

Other Tolling Doctrines. Your jurisdication may have other tolling doctrines, available, i.e. fraudulent concealment or to cover the circumstance of the defendant being beyond the reach of service of process. For an example, see a discussion of Connecticut's fraudulent concealment doctrine.

The Claims. Victims are bringing actions seeking accountability as well as damages for the cost of past and future therapy, loss of childhood, failure to fulfill potential and the long-term emotional damage resulting from the abuse. Claims can be lodged for sexual abuse, assault and battery, unlawful restraint, invasion of privacy, and intentional or negligent infliction of emotional distress.

Survivors Victimized as Adults. Persons victimized as adults do not have the benefit of extended statutes of limitation adopted for the benefit of survivors who were abused as children. Statutes of limitation may be as short as one (1) year, but are typically 2 or 3 years. In some states, the statute of limitation may be tolled if a victim is "under a disability," (i.e. mental illness). The degree to which courts are willing to toll statutes for emotional distress varies depending on the state. Depending upon the language of the discovery-based tolling statute or doctrine, it might be feasible for an adult victim suffering from repressed memory to use a discovery doctrine.

Professional Exploitation. Adult victims who have been exploited by medical professionals (i.e., doctors, therapists and psychiatrists) also have a civil damages remedy. It is fairly well-established in most states that mishandling of the "transference/counter-transference" phenomenon that arises in therapy is malpractice that is covered by insurance. The statutes of limitation will be typically shorter than those available for survivors of CSA. In most instances an ongoing physician/patient relationship can extend the time period. See Liability of Physicians, Therapists and Other Health Professionals for Sexual Misconduct With Patients by Linda Jorgenson and Pamela K. Sutherland.

Security Cases. In some settings, adult victims may have remedies against property owners for failure to provide adequate security. For example, successful suits have been brought against parking lot and garage owners, hotel/motels, private owners of buildings open to the public and apartment building owners.

Domestic Torts. Most states have fully or partially abandoned the doctrine of spousal immunity and suits can now be brought against spouses for physical, sexual and emotional abuse. Most jurisdictions require that the abuse involved be of a magnitude that is considered "extreme and outrageous" in order to discourage suits for minor incidents. Although the trend is to allow spousal tort claims to be brought after the conclusion of a divorce case, jurisdictions vary as to whether claims should be before or after the divorce goes to judgment. See generally Taking abusers to court: civil remedies for domestic violence victims by Linda K. Meier; Brian K. Zoeller (1995).

VAWA. The Violence against Women Act (42 U.S.C. 13981)(1994) provides for new remedies for victims in felony-level gender-motivated violence cases. See generally Fighting Back: Filing Suit Under the Violence Against Women Act by Stephen M. Pincus and David N. Rosen, TRIAL Magazine, December 1997. VAWA cases can be brought in either the State or Federal court. It is anticipated that VAWA will become a vehicle for victims to bring actions for domestic violence, workplace sexual harassment, child sexual abuse, and possibly even stalking. The act provides for the recovery of compensatory damages and attorneys fees. In Brzonkala v. Virginia Polytechnic and State University, No. 96-1814, 1997 U.S. App. LEXIS 35970 (4th Cir. Dec. 23, 1997) [on appeal from 935 F. Supp. 779 (W.D. Va. 1996)] the court found the civil remedies provision of the Act to be a proper exercise of Congressional power under the Commerce Clause; a similar result was previously reached in Doe v. Doe, 929 F. Supp. 608 (D. Conn. 1996). On Feb. 6, 1998, the Fourth Circuit Court of Appeals agreed to rehear the Brzonkala case en banc (with all justices sitting). To date, the Act has survived Constitutional challenges in the Second, Fourth Sixth, Seventh, and Eighth Federal Circuit Courts of Appeal.

VAWA's focus on "gender-motivated" violence is a mixed blessing. It will be necessary for litigants to prove that the violence perpetrated was gender based and not personal. The gender motivation issue, however, will allow plaintiffs to present a broad range of evidence of other conduct of the defendant that can be used to demonstrate gender bias.

The Violence against Women Act also included new rules of evidence which are not limited to VAWA claims but will be applicable to cases of any type brought in the Federal court. The new Rules expressly allow for the use of "other victim" evidence in any civil or criminal prosecution brought on behalf of a sexual assault or molestation victim in the Federal Court. With some exception, the rules also prohibit introduction of evidence concerning a victims other sexual contact, lifestyle and sexual identification. These new rules will make evidence to prove sexual assault and molestation cases more readily available to victims. It is hoped that the new Federal Rules will have an impact on the development of similar evidentiary rules in the State courts. Because of the favorable Federal Rules of Evidence, a victim may gain a tactical advantage by filing suit in the Federal Court if the jurisdictional requirements are met. For the text of the rules see F.R.E. 412, 413, 414 & 415.  See also Admissibility of Other Victim Evidence, published in the Crime Victims' Litigation Quarterly (Aug. 1995).

Practical Considerations
Discovery and the Waiver of Privacy. The new Federal Rules notwithstanding, in most civil cases there is no bar to the use of sexual history and other private information. Any person who files a civil case claiming physical or emotional damages waives the right to confidentiality of medical and other records that might have a bearing on her physical or emotional state. This is true in all civil claims, regardless of the type of injury. Read an article on emotional distress discovery. There is a broad basis for "discovery" (a general term used to describe pretrial disclosure of information and documents, either by written motions or deposition) in most states. The basis for discovery is broader than the basis for admissibility in court. Most states will allow discovery requests if the information requested is relevant or has the potential of leading the opposing party to potentially admissible evidence. Because posttraumatic stress disorder (PTSD) and similar disorders are commonly claimed by victims, evidence of any other stressors or trauma is subject to discovery. Sexual and personal history is usually considered relevant for discovery purposes, although it is sometimes possible to obtain protective orders to limit the scope of that discovery. Personal, educational and employment history is relevant for discovery purposes, as well as any diaries or writings of the victim.

Some courts that allow broad pretrial discovery, however, may limit the type of evidence that can be heard by a jury. For instance, it is sometimes possible to obtain a ruling in advance of trial that evidence of consensual sexual relationships of the victim is not admissible. That argument can be made based on an analogy to criminal rape shield statutes as well as the common sense argument that consensual sexual relationships do not usually cause trauma and therefore are not relevant to the victim's emotional damages. Proponents of such motions can now point to the Federal Rues for authority. There is a big catch here, however. A significant part of damage in many victims are difficulties with sexuality and intimacy. It may be necessary to admit evidence of those problems and thereby "open the door" on the issue consensual sexual relationships in order to demonstrate the extent to which the victim is damaged..

Impact on Therapy. A survivor should also be aware that in a civil case, his or her therapy will no longer be totally confidential. The therapists' notes and records will be subject to disclosure in a civil suit, although their use will be limited to the parties and their attorneys and will only in rare instances be filed in the court file. A therapist is a witness to the impact of the abuse on the survivor and will probably be called upon to testify if suit is filed. If suit is contemplated, a therapist should carefully document all symptoms, history and disclosures that relate to a client's victimization. In recovered memory cases, a therapist should carefully document when memories are recovered, what is remembered and how it is remembered. If a suit is contemplated, records, journals, and documents should never be altered or destroyed.

Hypnosis. If a civil claim is contemplated, survivors should be aware that the use of therapeutic hypnosis and non-traditional modes of therapy can be problematic in the context of a civil lawsuit and should be avoided. One court in Connecticut ruled that a victim could not testify because her recollection had been rendered unreliable by the past use of hypnosis for therapeutic purposes. Borawick v. Shay, 842 F. Supp. 1501 (D. Conn. 1994); aff'd 68 F.3d 597 (2d Cir. 1995). See Court Adopts Legal Test for Therapeutic Hypnosis by Attorney Helen McGonigle.

Hypnosis can also fuel a defense that the victim's recollection of the abuse are merely "false memories" suggested by the hypnotherapist. Experts continue to debate the controversy over whether memory can be "repressed," whether repressed memory can be recovered, or whether false memories can be implanted. See Website: Recovered Memories of Sexual Abuse: Scientific Research & Scholarly Resources by Jim Hopper, Ph.D. Victim attorneys who pursue an aggressive strategy anticipating the false memory defense will help to level the litigation playing field on this issue. See Debunking 'false memory" myths in sexual abuse cases by Wendy J. Murphy.

In one reported case, a Massachusetts federal court allowed evidence and testimony based upon the recovered memories of a victim. Shahzade v. Gregory, 923 F. Supp. 286 (D. Mass. 1996). In some instances, however, judges have refused to allow the testimony on the basis that recovered memories have not been shown to be scientifically reliable.

Protective Orders and Publicity. "Jane Doe" and "John Doe" fictional names can often be used by victims who bring lawsuits in the State and Federal courts. See Victim Anonymity in Civil Suits (by Karen M. Crist, Atty.). In some instances, it is also possible to get orders sealing the court file from the public. Some survivors object to the use of Jane Doe protective orders because it is thought to further stigmatize victims. Some victims forego identity protection orders to prevent reciprocal "tit for tat" protection sought by the perpetrators.

The media rarely picks up the filing of a suit on its own unless a high profile individual is involved; most publicity is generated by victims or their lawyers. Publicity can be avoided in most cases depending on the wishes of the victim. The question whether media publicity should be sought is a critical, involves competing goals and considerations, and should be discussed carefully between attorney and client. For many years the general rule was that media outlets had the policy of not publishing a victim's name unless the victim expressly requested it. That rule is changing and a growing number of news outlets will publish the name of a victim unless prevented by a court sealing order.

Retaliatory Suits. Although many survivors fear retaliatory suits for defamation or vexatious litigation (the civil version of malicious prosecution), such suits are poor strategy on the part of perpetrators and therefore exceedingly rare. However, a handful of high profile suits have been filed against therapists who have been accused by alleged perpetrators of planting "false memories."

Should you bring a claim?

Victim recourse litigation is not a panacea --there is is no guarantee that a victim will obtain healing or closure by bringing litigation. Litigation can be prolonged, stressful and expensive. Any survivor who wishes to institute a civil claim should be well-established in supportive therapy before starting the action. See Support Systems for Victims and Attorneys--A Crime Victim Imperative by Mario T. Gaboury, Esq. It is not a good idea to start a lawsuit shortly after recovering memories of abuse or acknowledging the issue of abuse in your life.

Any case that is solely based upon "your word against his" is difficult. Cases with some outside corroboration are more feasible. Outside corroboration can consist of other victim evidence, "constancy of accusation" evidence (other persons told around the time of or after the abuse, or a significant period of time prior to launching the claim), school and medical records which demonstrate problems that are typical of abuse, and a variety of circumstantial evidence that tends to support a victims claim. Corroboration can also be assisted by expert psychologists and psychiatrists who are qualified to evaluate a victim and her history in order to identify patterns of behavior and psychological and somatic (physical) complaints that are typical of victims of CSA. See Psychiatric Experts in Victim Litigation (By Dr. Harold J. Bursztajn, M.D. and D. Thomas Nelson, Esq.)

Recovered memory cases are the most difficult and must be carefully evaluated before a decision to institute suit is made.

No case can be feasible unless the perpetrator is "lawsuit worthy." Theoretical cases with no hope of collecting damages are not handled well by our judicial system and only serve to further disappoint, invalidate and frustrate victims. Cases can be lost for legal reasons that have no bearing on the truth of the allegations or the merits of the claim. Lost cases only serve to further damage victims. Lost cases also send the wrong message to perpetrators. For these reasons most lawyers carefully screen victim recourse cases and only accept those with a good chance of success. When those cases are identified and successful claims are brought, victims can benefit from making their perpetrators financially and morally accountable.

Other Remedies for Victims.
Victim compensation from the state compensation funds. Most funds are limited and have rules governing eligibility.
Physicians and other health care providers are accountable to state licensing boards.

Teachers are accountable to state boards or departments of education.

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