Loretta Merritt discusses when an abuse survivor should consider
a sexual assault lawsuit as part of the Torkin Manes LegalPoint
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
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
Many survivors of sexual assault are seeking closure, a way to
heal, a way to move forward — often years after the abuse.
They need a safe place where they can discuss their legal options
with lawyers who have a special expertise in, and understanding of,
their situation. The Sexual Assault Group at Torkin Manes provides
that safe place.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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