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.

Saturday, January 02, 1999

Age-Appropriate Stages of Sex Play

Age-Appropriate Stages of Sex Play 
Source: Committee for Children 

The following are some common behaviors seen in children and the ages at which such behaviors is considered appropriate. 

2 1/2 Years: Child shows interest in different postures of boys and girls while urinating and is interested in physical differences between the sexes. 

3 Years: Verbally expresses interest in physical differences between the sexes and differences urinating postures. Girls may attempt to urinate standing up. 

4 Years: Extremely conscious of the navel. Under social stress my grab genital and need to urinate. May play the game of “show.” Also verbally expressive about elimination. Interested in other people’s bathrooms. May demand privacy for self when using washroom but be extremely interested in the bathroom activity of others. 

5 Years: Familiar with, but not too interested in, physical differences between sexes. Less sex play and game of “show.” More modest, less exposing of self. Less bathroom play and less interested in unfamiliar bathrooms. 

6 Years: Marked awareness of and interest in the differences between sexes in body structure. Questioning. Mutual investigation by both sexes reveals practical answers about sex differences. Mild sex play or exhibitionism in play or in school washrooms. Game of “show.” May play hospital . Giggling, calling names or remarking involving words dealing with elimination functions. Some children are subjected to sex play by older children: the age and power differences between the children are critical in defining this as normal sex play or exploitation. 

7 Years: Less interest in sex. Some mutual exploration, experiments, and sex play, but less than earlier.

8 Years: Interest in sex rather high, though sex exploration and play is less common than at sex. Interest in
peeping, smutty jokes, pro vacating giggling. Children whisper, write, or spell elimination or sex words. 

9 Years: May talk about sex information with friends of the same sex. Interest in details of own organs and functions. Seeks out pictures in books. Sex swearing, sex poems begin. 

10 Years: Considerable interest in “smutty” jokes.

Friday, January 01, 1999

Is there a Jewish Right to Commit Suicide?

Is there a Jewish Right to Commit Suicide?
Temple Sinai of Sharon, Inc. and Rabbi Clifford E. Librach
(Originally published in the January 1999 Temple Sinai Bulletin)

The Talmud tells the story of a rabbinic sage who returns to his old community after a long and lonely absence, exclaiming "either friendship or death!"

Every one of us is vulnerable the psychological dangers of loneliness. Each one of us is a person necessarily imbedded in a range of multiple relationships-we are all children, most of us have siblings and many of us have spouses and children in addition to friends and acquaintances.

Therefore, no one is really independent in anything but a relative sense-no one is truly and radically autonomous. Autonomy, in the Jewish view, can only be the property of a Force who is capable of creation out of nothing (creatio ex nihilo). Only God has this capacity; it is a capacity no creature should attempt to achieve, let alone assume that it already possesses.

To view any individual as being independent of all relationships is like viewing a point outside of a line.

So privacy and autonomy are relative terms in the classical Jewish view.

We have a right to privacy from the government in certain aspects of our lives-our family life, our political persuasion, our friendships, our religion. The state is entitled to intervene, however, when our family life becomes a shield for the abuse of children, when our friendships become a shield for criminal conspiracy, or when our religion becomes a shield for conduct which society deems immoral.

Why do we need the authority of government? For two reasons-polar opposites, in many ways. We need a state because so many human beings are selfish individuals inclined to (a) distrust each other and (b) to pursue their own self-interest without restraint. But in addition, we need a state so that we can properly order the mutual satisfaction of our personal needs and those of each other. It is not good for us to be alone (Genesis 2:18), which is why we are ultimately and intimately attached to each other (Genesis 2:23) in family, tribe, society and nation.

In either case, the state has as one of its prime responsibilities the intervention against behavior when there is a strong possibility that death might otherwise occur. Society-and its principal agent, state power-is charged to defend all innocent human life from destruction. Accordingly, there is really no difference between homicide and suicide. The killing of innocents is to be contained irrespective of who is killing and who is being killed.

The problem with seeing a "right" to suicide is not only that it suggests that we are responsible to no one (family, friends or God) but ourselves. In addition, we can (and, no doubt, will) be pressured to exercise that "right" when it would seem to us to be in the best interest of those in our immediate circle.

It was no accident that the suicide rate of German Jews, beginning in 1933, dramatically increased years before the actual "Final Solution" of the death camps was implemented. When the German society, of which most of them believed themselves to be integrated members, sent them so clear a message that their presence was to be removed at any cost, death became the last privacy to which they were consigned.
Suicide is an exaggerated scream of loneliness.

For Judaism, the proper medicine for loneliness is love, not death. We have no more "right" to murder ourselves than we do to murder each other.

How does one honor a father who allowed sexual abuse?

How does one honor a father who allowed sexual abuse?
© (1999) By Rabbi Jo David (Reprinted by Permission)

Rabbi Jo David
Q: How does one "honor" a father who knew that his brother-in-law sexually abused you for many years and did nothing to stop it?

A: I grieve with you for the pain such a situation created for you.

The commandment that charges us to honor our parents pre-supposes that our parents acted properly toward us - that they protected, clothed, fed and educated us. A parent who abdicates the duties implicit in parenthood - and most certainly protecting a child from abuse is primary - is not, by definition, a parent. You have no religious or moral obligation to honor your father or your mother, if she too, was involved in neglecting to protect you from her brother-in-law.

Today, there are many support groups for men and women who suffered from sexual abuse. Recovering from abuse is possible, and very important so that your future is not molded by your past. If you have not connected with one of these groups, please let me know the area of the country in which you live and I'll give you some leads to follow up.

Case of the Unnamed Haifa Elementary School Principal

Case of the Unnamed Haifa Elementary School Principal
Haifa, Israel

A Haifa elementary school principal was found guilty by the Supreme Court this week of sexually abusing students, aged 8-11, in 1999.

If you have more information about this case, please forward it to The Awareness Center.

Disclaimer: Inclusion in this website does not constitute a recommendation or endorsement. Individuals must decide for themselves if the resources meet their own personal needs.
Table of Contents:  

  1. Supreme Court finds school principal guilty of sexual abuse (02/19/2004)


Supreme Court finds school principal guilty of sexual abuse
By Roni Singer, Tsahar Rotem and Yuval Yoaz
Haaretz - February 19, 2004 Shvat 27, 5764

A Haifa elementary school principal was found guilty by the Supreme Court this week of sexually abusing students, aged 8-11, in 1999.
The suspect was originally acquitted by the Haifa District Court, but was convicted of abusing his position. The Supreme Court has sent the case back to the District Court for sentencing.
The charge sheet states that one afternoon, the principal called three students into his office and ordered them to take off their trousers. He then asked them if they felt ashamed and allegedly touched the genitals of one of the students, and asked him if he enjoyed it.
On another occasion, the suspect ordered an 11-year-old to strip and then touched his genitals. He also allegedly used to ask students to check that they had been circumcized.
Also this week, Netanya police arrested a 30-year-old resident who is suspected of abusing his wife's four siblings, three girls aged 5, 8 and 12 and a 3-year-old boy.
Police launched the investigation following a family discussion on Saturday night during which two of the girls alleged that their brother-in-law had touched their private parts over a period of a few weeks about half a year ago.
The children's grandfather then filed a complaint with police, and the four children were questioned, with them explaining to officers what the suspect allegedly did to them. He was arrested on Tuesday and denies the allegations.
The man and his wife lived with her parents for some time and police believe that that is when he allegedly abused the children.
Netanya police said the suspect has been released to house arrest at a relative's home, outside the city. Police expect to indict him soon. Some four months ago, the man's 23-year-old wife filed a complaint with police that her husband had beaten her. The man has been under house arrest since and the couple has divorced.
At the Tel Aviv Magistrates Court yesterday, a 30-year-old yachting instructor from Herzliya was remanded in custody until Sunday on suspicion of abusing four 11-year-olds. The judge took the rare decision himself of issuing a gag order on publication of the suspect's name and photograph.
The suspect worked for six years as an instructor at a yachting club in the Herzliya marina. One of the children who goes to the youth club told his parents recently that the instructor had done some things with which he was not comfortable. The child eventually told his parents that the instructor would allegedly touch his genitals, and the parents filed a complaint with police.
The parents also spoke with the parents of other children in the boy's group and another three children came forward with similar complaints as a result.
Police said yesterday that since the suspect has worked at the club for a number of years, they will look into whether other children were also possibly abused by the man.


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