Personal Injury

Fighting Child Sexual Abuse

By David Goguen, J.D., University of San Francisco School of Law
A look at a parent or guardian's legal options in the civil court system when a child has been the victim of sexual abuse.

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Instances of child sexual abuse can give rise to a number of different legal actions. Criminal prosecution of the abuser is the most common of these, but victims of child sexual abuse (and the victim’s parents or guardians) can also turn to the civil court system to hold the offender liable for harm and suffering resulting from the abuse. But what might this kind of civil lawsuit look like? How is liability established? How does a civil case relate to a criminal case for child sexual abuse? Read on to learn more.

Criminal Court Versus Civil Court

It’s important to keep in mind that sexual abuse of a child (or sexual abuse of anyone) can form the basis of two very different kinds of court proceedings:

  • a criminal case, brought by the government (the county district attorney, for example) against the alleged abuser, where liability (guilt) is punishable by incarceration, imposition of fines, mandatory counseling, probation, and other sanctions; and
  • a civil lawsuit, brought by the alleged victim of the abuse (or by the victim’s parents or guardians), where liability is expressed in the form of damages, or compensation owed by the abuser to the victim.

Not all allegations of sexual abuse will involve the criminal court system. These cases usually fall into one of three categories:

  • There were no criminal proceedings in connection with the alleged abuse. Some abuse goes unreported for years, and neither law enforcement nor the criminal courts ever get involved.
  • There were criminal proceedings in connection with the alleged abuse, but the alleged abuser was not convicted -- meaning the charges were dropped, or the alleged abuser was found not guilty after a trial.
  • There were criminal proceedings in connection with the abuse, and the abuser was convicted -- meaning the abuser entered into an agreement where he or she pled guilty to one or more charges, or the abuser was found guilty after a trial.

The existence of any criminal proceeding -- and the result of that proceeding -- will play a part in any civil lawsuit filed over the sexual abuse. If a criminal conviction was obtained, for example, that will likely make it easier to hold the convicted abuser liable in a civil lawsuit, but this is a complex area of law that is best left to an experienced attorney.

Who Can Be Sued Over Child Sexual Abuse?

The first and most obvious answer is: the alleged abuser can be sued (meaning he or she is named as the defendant) in a civil court case.

But if anyone else was in a position to prevent the abuse, or had a legal obligation to do so, that person (or that organization) may also be civilly liable. That includes:

  • parents (if the alleged abuser is a minor)
  • a school district or its employees
  • an employer
  • a daycare provider, and
  • a church or religious organization.

What Must Be Shown In a Lawsuit Over Child Sexual Abuse?

The “standard of proof” in a civil lawsuit is lower than it is in a criminal prosecution. The victim of the alleged sexual abuse only needs to establish the abuser’s liability “by a preponderance of the evidence.” This means showing that it is “more likely than not” (50.1 percent or more likely, in other words) that the defendant committed the abuse as alleged. Compare this standard with that in a criminal case, where the prosecution must prove the alleged abuser’s guilt “beyond a reasonable doubt,” which is a significantly higher threshold.

If the lawsuit is against the abuser, the victim will probably use an “intentional tort” cause of action (this is a type of personal injury claim) to establish that the acts of abuse were the cause of the victim’s harm and suffering. For third party defendants (such as an organization), the victim will be seeking to show how the defendant’s action (or inaction) caused or allowed the abuse to occur.

Regardless of who the defendant is, the plaintiff will need to make a detailed showing of the extent of the harm suffered, including physical injuries, emotional trauma, sleeplessness, anxiety, and other short and long-term effects of the abuse.

The Statute of Limitations and Injuries to Minors

Every civil lawsuit, including one filed over sexual abuse of a child, is subject to a filing deadline set by a law called a “statute of limitations.” But many states have passed special timing rules for lawsuits involving harm to a minor, and some -- like California, Florida, and Illinois -- even have specific statutes of limitations for childhood harm resulting from sexual abuse.

You can find a complete state-by-state breakdown of these special statute of limitations rules, see State Civil Statutes of Limitations in Child Sexual Abuse Cases, from the National Conference of State Legislatures.

Should You File a Lawsuit Over Child Sexual Abuse?

This is a very personal question, one that is fraught with both emotional and practical considerations.

By filing a lawsuit in civil court, you are volunteering to revisit painful memories, give up some measure of your privacy, and open your life up to discomfiting levels of scrutiny. If you are bringing the lawsuit on behalf of a victim who is still a minor, these considerations may take on even more significance.

On the practical side, a civil lawsuit costs money -- sometimes a lot of money -- and your attorney may or may not offer to take your case under a contingency fee agreement.

Your best first step may be to sit down and discuss your situation with an experienced personal injury attorney, who can give you a clear understanding of your legal options and explain what to expect from the lawsuit process.

Questions for Your Attorney

  • How long does someone have to file a lawsuit for sexual abuse when there’s repressed memory? How do you prove it?
  • If a parent knows about abuse, but chooses not to file a lawsuit against an abuser, can a child-victim file a lawsuit after turning 18 years of age?
  • Can you sue someone who reported abuse? What if there was no abuse, and the accused person suffers harm, like a damaged reputation or loss of a job?

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