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A person who can prove she or he has been sexually abused is entitled to be compensated with money. To get that compensation the person can file a suit against the abuser. A jury or judge will then decide, after a trial, both whether the abuse happened and, if the decision is that it did happen, how much the abuser must pay.
The Difference between Civil and Criminal Cases Alleging Child Sex Abuse
In a criminal child abuse case, the government brings the case as the plaintiff, and a public prosecutor tries to prove it. If the accused loses the case, he or she usually goes to jail or prison.
In a civil claim for childhood sexual abuse, only money and reputation are at stake; the accused cannot be sent to jail or prison. The person who claims to have been abused is the plaintiff and engages a lawyer to bring the case. Usually that lawyer is paid a “contingent fee,” that is, a share of whatever money the plaintiff receives from the abuser and any other defendants.
How to Defend a Civil Claim for Childhood Sexual Abuse
The lawyer for a person being sued for childhood sexual abuse must first determine whether it can be disputed that the accused is liable to the plaintiff—in other words, whether the accused did molest the plaintiff. Sometimes the defendant will already have been convicted in a criminal case or will have admitted elsewhere he molested the plaintiff. In such a situation, the only real question may be how much damage the plaintiff has sustained and how much the defendant will pay in compensation.
If the defendant has not been convicted of abusing the plaintiff and denies that he did, the defending lawyer must develop defenses both on damages and liability. In other words, the attorney must build a case that the plaintiff has not been harmed as much as the plaintiff contends, and a case that the defendant did not molest the plaintiff at all.
How to Build a Case against a Damages Claim
Often the plaintiff has grown into an adult who has not done well in life. The plaintiff may have suffered drug addiction, chronic unemployment, and a series of short, unhappy, intimate relationships. The plaintiff usually wants all such major problems to be attributed to the abuse… and for the defendant to pay for all of them.
In response, the defense attorney needs to investigate how the plaintiff’s life would likely have gone had it not included sexual abuse at an early age. If the plaintiff has siblings who were not molested but have had similar problems in their adult lives, that suggests the defendant did not cause the plaintiff’s problems.
The defense needs to obtain the plaintiff’s school, employment, psychotherapy, and other healthcare records. They often reveal other stressful events in the plaintiff’s life.
As important as anything in a jury’s determination of damages is the impression the plaintiff will make as a witness. The defense attorney gets to size this up during the plaintiff’s deposition.
If the defense denies liability, then most of the lines of investigation in a criminal case should be pursued. In a civil case, the defense often has to fight much harder than in a criminal case to get information from the other side. And in a civil case, unlike a criminal case, the defense is required to reveal information, including the defendant’s account of what happened, upon the other side’s request.
The Challenge of Defending Civil and Criminal Cases at the Same Time
A criminal defendant has a right to remain silent; this is part of the privilege against self-incrimination. The judge in a criminal case won’t order the accused to tell the prosecutor in advance what he or she will say when trial comes.
But in the pre-trial phase of a civil case, the defendant is required to answer the plaintiff’s questions about most subjects directly related to the case. A defendant who faces criminal and civil claims at the same time is thus in a tough spot: he or she is required to reveal things that would be better kept confidential until after the criminal trial.
Washington law provides a solution. Often the proceedings in the civil case can be stayed (that is, suspended) until the criminal case concludes.
Defendants other than the Alleged Abuser
Sometimes persons other than the abuser are found liable, that is, responsible, for the abuse.
Institutions can be found liable for childhood sexual abuse. The Catholic church has been found liable in many cases because it left particular priests in positions to abuse children even after their superiors learned the priests were prone to abuse children. Schools, camps, scouting organizations—any institution that places adults in authority over children—can be found liable for sex abuse by one of those adults.
The spouse of the alleged abuser is often also sued. The plaintiff usually alleges that the spouse had reason to suspect that her partner was sexually attracted to children yet did nothing to protect the child who was abused, such as warning the child’s parents of the danger.
If the alleged abuser was younger than 18 at the time of the abuse, his or her parents may also be sued. As in a claim against a spouse, the plaintiff usually alleges that the parents negligently failed to protect the child or to warn the child’s parents.
What if a Person Found to Have Abused a Child Doesn’t Have Much Money?
Judgments for childhood sexual abuse can award a little money or a great deal of money. Every case is different. If the abuse was especially invasive (say, sexual intercourse) and happened many times, the award can be more than a million dollars.
But suppose the abuser doesn’t have as much money as a court is likely to award. This is quite often the situation. If the case goes to trial and judgment is against the defendant, the defendant must turn over everything he has except certain assets the law allows him to keep.
Washington law provides a homestead exemption of $125,000. This means a defendant gets to keep $125,000 of home equity even if that means the full judgment is not paid.
But a defendant can often preserve more assets by negotiating a settlement. A plaintiff will often settle for less than a court might award in a judgment. This is because a settlement avoids trial; trial involves work, expense, delay, and the risk of losing.
One reason the plaintiff will usually add an institution as a defendant—if any institution might be found liable—is that most institutions are able to pay large awards of damages.
Negligence Claims and Insurance Coverage
Like institutions, insurance companies can pay large damages awards. That is why the alleged abuser’s spouse is often added as a defendant.
Homeowners insurance policies usually protect homeowners for their negligent acts. Abusing a child is intentional, not negligent, so the abuser virtually never has insurance coverage. A spouse’s failure to protect or to warn, though, is usually negligent, so insurance coverage is possible.
It serves the interests of both the plaintiff and the defendants if one defendant has insurance coverage. If the case settles, the plaintiff is likely to get a larger settlement. The defendants get insurance coverage for at least part of any award of damages, and the insured defendant gets an attorney at the insurance company’s expense.
In the past few decades, most insurance companies have rewritten their homeowners policies to exclude all claims arising from alleged sex abuse. That means they don’t cover even a negligent act or omission if the underlying problem was sex abuse. So insurance coverage is most common in old cases—and some childhood sexual abuse claims in Washington State are quite old, due to Washington’s extremely liberal statute of limitations.
Special Statute of Limitations
There is a time limit for filing in court a civil claim for compensation, and different kinds of claims have different limits. Washington State’s statute of limitations for childhood sexual abuse permits a suit to be filed at any time within three years of the time the abused person discovers that his or her injuries were caused by the abuse.
Imagine a 65-year-old woman who was molested when she was six. She has always known she was molested. Imagine also that she has been an alcoholic since she was twenty, and she has also always known that. But imagine that only at age 65 does she realize, in some way, that her molestation caused her to become an alcoholic. The law allows her three years from that realization to file suit.
Application of the statute of limitations can get far more complicated than a simple example can show. A lawyer can help you understand how it applies to your situation.
General and Special Damages
A person claiming to have been abused will seek compensation for readily-measurable losses, called “special damages,” and for pain and suffering, called “general damages.”
Special damages usually include loss of earning power and charges for psychotherapy, both past and future.
In most cases, the general damages award is much larger than the special damages award.
How Do Civil Claims Compare to Criminal Restitution?
Persons convicted of crime are often ordered in their criminal judgments to reimburse their victims’ readily-measurable losses. This category of loss corresponds roughly to the special damages category in civil lawsuits.
If a defendant in a civil suit has been ordered to make criminal restitution for some of the harm underlying the civil suit, he or she will get a credit in the civil case for any payments made as criminal restitution. One does not have to pay twice for the same loss.
Settling a Claim Before Suit is Filed
Many claims for childhood sexual abuse are settled via compromise without the plaintiff’s ever filing a suit. This is usually faster and more private than settling a case after a lawsuit is filed. It can also keep legal fees below what they would be if suit were filed.
Even when a claim is filed without a lawsuit being filed, though, both sides should have lawyers representing them. Otherwise, the agreement they reach may not achieve what they expect it to. For example, it may not prevent the claimant from claiming more later.
Also, it is usually a mistake to settle a case without any investigation. When the Marshall Defense Firms represents the accused in a claim like this, we usually require that the claimant disclose to us their medical, counseling, school, and work records. We also often request an interview of the claimant. These things help us evaluate the claim.
What it’s Like to Have The Marshall Defense Firm in Your Corner
Respect and compassion are the foundation of our work. We take time to get to know you and your case. It’s where our fierce advocacy for you begins.
Then there’s our experience. For decades we have defended special-assault cases like civil claims and lawsuits for childhood sexual abuse. From that and our on-going study of the law, medicine, and psychology involved in these cases, we have exceptional skill.
And we pool that skill. We work as a team. We know that no one lawyer, no matter how brilliant, will have all the good ideas for your case.
Our final ingredient is relentless investigation and preparation. When we step into court to defend you, we are ready to do it well.