SHOULD YOU SUE YOUR PERPETRATOR?
*THIS GUIDE IS NOT INTENDED TO SUBSTITUTE FOR LEGAL ADVICE.
This is a very brief outline, written for survivors of childhood sexual abuse, of some things to consider as you try to decide whether or not to pursue a legal claim against your abuser. It is not exhaustive and it does not take into account the particular and unique character of your claim.
Also, the laws of each state vary and this area of the law is evolving rapidly, here in California as elsewhere. If after reading this, you feel you would like to pursue your claim further, WE STRONGLY URGE YOU TO CONTACT AN ATTORNEY WHO SPECIALIZES IN CHILD SEXUAL ABUSE RIGHT AWAY – whether that be us in Santa Cruz or elsewhere – in case your statute of limitations (the time in which you can sue) is due to run on your claim. In general, a good place to start is an attorney in the state where your abuse happened, or the state where the perpetrator lives now.
SS&F represents child sexual abuse victims in Santa Cruz, Monterey, and Santa Clara counties, as well as throughout the state of California. If you are not in California, we can speak with you further, and help you find an attorney in the appropriate state or jurisdiction for your claim.
In civil lawsuits for money damages, there are also different types of perpetrators. There is the obvious individual child molester who has committed serious, inexcusable crimes against their victims. But, there are also institutions which should be in the business of safeguarding and protecting children, such as schools, daycares, churches and youth organizations. So, while you may have a claim for intentional misconduct against an individual child molester, you may also have a claim for negligence against the institution which employs the molester or allowed the molestation to occur.
Even though there are “mandatory reporting” requirements of schools, therapists, and healthcare providers, often times strict requirements of these mandatory reporting laws to law enforcement are ignored by the school district or other institutions which fail to properly train it’s employees.
Unless our schools, churches and youth organizations take responsibility for screening, training, and supervising the adults who have access to our children, the risk of sexual abuse to our children cannot be properly minimized.
Criminal cases are based on violations of penal codes, which vary from state to state. The perpetrator, if convicted, can be given a prison sentence and may have to pay a fine. Also, the perpetrator may be registered as a sexual offender if he or she is convicted. You may be called as a witness in a criminal case. You can decide whether you want to press charges, but the district attorney decides whether to take the case to trial or not, since it is the State that is prosecuting the perpetrator. In California, victims of violent crimes may qualify to receive financial assistance for therapy through the Victim Witness program.
The statute of limitations in California for criminal charges is different than that for civil suits, and is often shorter. However, if your abuse was never reported to law enforcement and it is now reported for the first time, the statute of limitations might be extended to allow for criminal prosecution. You may wish to call the district attorney in the county where your abuse happened to find out if it is too late for a criminal suit, if you are interested in pursuing that route.
The second way in which a perpetrator can be brought to court is through a civil lawsuit. In civil suits, you are named as a party to the action, a plaintiff (“Sue Survivor vs. Joe Perpetrator”), and your perpetrator is the defendant.
You file a complaint in civil court and ask the court (the jury) to award you damages (money) for therapy, lost work or earning capacity, pain and suffering, and punitive damages to punish the perpetrator. In addition to the perpetrator, you may also be able to sue the perpetrator’s employer or other third parties who knew or should have known that the perpetrator had the potential to molest children.
These third parties include school districts, daycare centers, churches, social groups, and other organizations which should be screening and supervising adults who might potentially abuse children. Many civil suits settle before they ever reach trial; some settle before a claim is even filed.
The amount of money you may receive is highly dependent on such things as how strong your case is (what kind of evidence you have, etc.) how strong the statute of limitations defense will be, the nature of the abuse, the ability of the perpetrator to pay, and other factors.
Many attorneys will take your case on a contingency fee basis if they think it’s a good case. This means that they will get a portion of your settlement or damage award if you get anything, but you will not have to pay them any legal fees if you do not receive an award. In California, you would be legally responsible for costs such as filing fees, deposition fees, and so on, whether or not you win. This is an issue you can work out with your attorney.
The remainder of this guide is about civil lawsuits.
CIVIL LAWSUIT PROCEDURE
The first thing to determine for yourself is your motivation for bringing a claim. Many people just want the abuser or his or her employer to be prevented from abusing others. If you suspect your perpetrator has access to other children now, you should consider calling Child Protective Services in California (all states have an equivalent agency) to report your abuse, even if it’s now many years later. The more specific information you have about children who may be around the perpetrator now, the better the chance that CPS will investigate.
A civil lawsuit cannot prevent your abuser from molesting other children (although it would probably make him or her think twice!) and the publicity over your suit may not become great enough to warn people about the perpetrator.
Most of us walk around with a somewhat romantic idea about justice, about having our “day in court,” where the real truth will come out and we will be avenged for the wrong done to us. Although this does happen, and people can theoretically come away from the process feeling this way, it is also often a grueling process that can leave you feeling like it all came down to a throw of the dice (more on this below). On the other hand, the case may settle rather quickly and leave you with a check in your hand, wondering what to do with your cherished fantasies of revealing at last to all the world what kind of person your perpetrator really is!
That is not to say the process will also be empowering. The old saying “no pain, no gain” is definitely applicable here. Standing up for yourself over such a personal and traumatic event is never easy, but survivors who have the courage to sue those responsible for their childhood abuse are taking control of a situation where they previously had no control.
The perpetrators of your abuse become the “victim” of the legal system which you, and you alone, initiate. In the legal civil process, it is the survivor who is initiating the process, prosecuting their perpetrators and in the process, empower themselves.
The end result of a civil lawsuit, however, always involves a transfer of money, from your perpetrator to you. Consequently, if you have no interest in obtaining money, a civil lawsuit is not for you, but if the money plays a part of your equation, initiating a lawsuit can provide you with a sense of justice you may not find anywhere else.
So, let’s say a lawsuit and the possibility of a monetary return appeals to you. What else is there to consider? On our end, we consider four main factors to determine whether or not a case is winnable:
1. Statute of Limitations
Are you within the time allowed for bringing a suit? States vary widely on this issue; many states have extended the statute of limitations for child sexual abuse in recognition of the fact that so many survivors only recover memories or only realize what the abuse did to their lives many decades after the abuse.
In California, the newly amended statute of limitations allows survivors to sue- no matter what your age- any time before January 2023!
Beginning in 2023, a survivor may file his or her lawsuit before they reach the age of 40, or within 5 years of when the individual discovers or reasonably should have discovered that their psychological injury was caused by childhood sexual abuse.
California Code of Civil Procedure Section 340.1, also allows for victims of molestation to sue a third party for negligence in allowing a perpetrator access to a child victim. If a school district, religious organization, social organization, daycare or other entity which employed, or gave the perpetrator access to children knew, had reason to know, or was otherwise on notice of any unlawful sexual conduct by the perpetrator and failed to take reasonable steps, or failed to implement reasonable safeguards to avoid unlawful sexual conduct by the perpetrator, a lawsuit against the third party is available.
California law also includes a definition of sexual assault, Penal Code Section 647.6 which includes, “annoying or molesting any child under 18 years of age.” As a result, sexually suggestive overtures by a teacher, scout leader, youth sports coach, or other adult with access to a minor, may fall under this category, thereby prohibiting common grooming tactics of child molesters. Because sexual abuse of a minor typically requires gaining the trust of child and thereafter allowing for inappropriate sexual contact, California Law has not dramatically improved to allow for legal action to prevent this type of misconduct.
Additionally, the new statute of limitations in California allows for treble damages against anyone who has been found to have “covered up” a sexual assault by attempting to hide evidence of it.
In short, under California Law, the legal process is rapidly beginning to reflect what every parent knows and expects: That those in charge of supervising and protecting our children must be held accountable when that trust is violated.
Secondly, is there evidence? Evidence includes testimony of people you may have told about the abuse around the time it was happening; testimony of other people who were abused by your perpetrator; medical records; testimony of people who observed dramatic changes in you at the time or a change in your relationship with the perpetrator; and of course (more rarely) testimony of people who saw the abuse happening.
If you have no corroborative evidence except your word that it happened, you may still be able to convince a lawyer to take your case. In California, if you are over the age of twenty-six you currently have to have corroborating evidence to proceed with a suit.
The third thing we consider is whether the perpetrator has assets to satisfy a judgment or settle the case? (In California and most states, homeowner’s insurance excludes intentional acts.) Assets include houses and rental properties, stocks and bonds, bank accounts, boats and RVs, etc. Obviously, where there are third parties involved such as schools, churches, sports teams, social organizations and businesses, there may be additional assets or even insurance available to cover the claims of negligence in placing children at risk.
4. Are You Ready?
Finally, we consider whether it appears to be in your best interest to bring a lawsuit, considering that it’s a stressful process. We try our best to assess at what stage of healing you are in, what kind of support system you have, whether you are in counseling, and if you seem ready to take this on.
Those are the things we consider. On your end, to help you assess whether or not you want to file a suit, we’ll give you a brief picture of the process and some of the feelings that might come up.
By the time we’ve decided to take a case, we’ve usually done some investigating, talked to potential witnesses, researched the perpetrator’s assets, spoken with your therapist, and so on. We often then send a letter to the perpetrator. This letter introduces us as representing you, briefly outlines the facts of the claim, explains the legal bases for the lawsuit, and impresses on the perpetrator that a jury could award you a substantial damage award. We invite the perpetrator to avoid a lawsuit by responding promptly to the letter, and instruct him not to contact you for any reason.
For many cases, this letter starts the settlement negotiation process. We may provide therapy bills to document the money already spent on therapy, and a letter from your therapist explaining how much therapy you might need in the future. The perpetrator or his attorney may provide financial information to help us determine how much a reasonable settlement would be.
If the case does not settle at this point, we file and serve the lawsuit. The perpetrator will most likely get an attorney, and unless there are initial legal challenges to the lawsuit, then typically the “discovery” phase of the litigation process begins. You may be asked to answer questions in writing (interrogatories) or produce records of your therapy bills.
Sometimes your therapy records or portions of them can be “discovered.” We try to protect from discovery the portions of your records that we feel are irrelevant to the case, including your sexual history (other than that with the perpetrator). But your claim for damages for psychological injury makes some things discoverable.
Your deposition may also be taken. In a deposition, the perpetrator’s attorney asks you questions, which you answer under oath. A court reporter takes down your answers. Sometimes the perpetrator tries to attend the deposition; we can sometimes have the court order that he be excluded from the deposition if this is too upsetting for our client. (However, some clients find once they get over their initial fear that it is very empowering to testify in front of the perpetrator.)
Your attorney is there to protect you in case the other attorney asks inappropriate questions or harasses you, and you have a right to stop the proceeding at any time there is a good reason.
You may also be asked to participate in what’s called an Independent Medical Examination. This is where the other side picks a psychologist or psychiatrist to do an interview with you, perhaps with testing. Here too, you have the right to expect courteous and respectful treatment. You can take a tape recorder with you, and you can refuse to answer inappropriate questions. You can stop the interview if the doctor confuses or harasses you.
Then, finally, if the case does not settle before this, there is the trial. Very few civil cases go this far, but you should be prepared for a public trial in which much of your story and the perpetrator’s story will be told. No client enjoys the trial process. It is extremely stressful. There are things which will be said about you with which you violently disagree, and there will be things that you want to say which the jury will never hear. Once again, however, the stress of the trial process will be minimized to the greatest extent possible for you.
How Will the Process Affect You and Others?
As you can see, you may feel at times in this process that your privacy is being invaded, the effects of the abuse are back in full force (nightmares, difficulty concentrating, etc.), and you don’t have control over the process. In other words, the process can trigger responses that make you feel the abuse is happening again. This is why we require all our clients to be in therapy throughout this process.
The truth is you do have control over the process in many ways, and it can be very empowering. We do everything we can to minimize the intrusion into your private life and maximize the options you have for controlling the process.
You should also be aware that the legal process is not just happening to you. In an even more dramatic sense, it is happening to your perpetrator. He/she is publicly exposed for what he/she has done. His/her financial life is at stake. Interrogatories are sent to him/her which he/she must answer. Our office will depose him/her. If he/she doesn’t settle, he/she will face a public trial based on your allegations. The process will undoubtedly affect every aspect of his/her life: personal, social, and economic. While it may be difficult for you, I can promise you it will be extremely difficult for your perpetrator.
Another thing to consider is that, just as your own healing process involves a period of upheaval when the status quo goes out the window and nothing works the way it used to, deciding to pursue a legal remedy can blow up family relationships that have been entrenched for years, perhaps decades or generations.
Often family members will pick sides over whether the abuse happened or not or whether or not you should be entitled to a legal remedy (i.e. money). Inheritances can be an issue. Public image of the family can be another. There may be many victims of sexual abuse in the family who don’t remember their abuse or deny it affected them, and they may side against you because it would be too painful and have too many consequences to do otherwise.
Sometimes survivors are afraid the perpetrator will harm them physically. Many times the fear is exaggerated because it is triggered by the childhood fear and the threats often received in the course of the abuse. We have never had a case where a client was harmed, even with very violent perpetrators; it might be that initiating a lawsuit shifts the balance of power so much that our clients are actually less at risk than before. Or it may simply be that bringing the law into it frightens the perpetrator. At any rate, if you are afraid of physical harm you should discuss this with people you trust to get an outside view.
Some people feel that this is the best thing that ever happened to their family, because one or a few select people are no longer carrying the poisonous family secret, and the pattern is upset so that future generations of children will not have to continue the tradition. In other words, it is the beginning of family healing. They also feel that the culture at large benefits, because of course the more justice is done the more perpetrators are aware that they may not get away with it, that what they do might cost them dearly. These clients feel that they are participating in changing the world for the better, even if the general public is never aware of what they have done. And then, of course, if they are successful, the settlement or damage award money can make it possible to get better or more therapy, and allow them the stability to pursue their own dreams.
We hope this guide has been informative and useful in helping you think about your legal remedies as a sexual abuse survivor. We want to reiterate that you should not take this as legal advice, as your claim is unique and it is an attorney’s job to weigh in all the factors in helping you decide if you have a winnable case or not.
We wish you healing and good luck.
More questions? Call the experienced attorneys SS&F (831) 457-1700 today!