Civil Tort Actions Filed by Victims of Sexual Assault: Promise and Perils

Civil tort claims are claims that seek financial compensation for wrongs that have caused injury. Tort claims brought by victims of sexual assault have recently been increasing at an exponential pace. These claims can be pursued against perpetrators as well as additional defendants known as third parties. A tort claim can be filed against a perpetrator regardless of whether there was a successful or unsuccessful criminal case, or no criminal prosecution at all. Third-party defendants can include businesses, landlords, school administrators, bus drivers, placement agencies, Boy Scout leaders, foster parents, religious institutions, hospitals and treatment centers, among others. Litigation against third parties concerns their responsibilities to use reasonable care to protect against foreseeable sexual assault. For example, a nursing home or care facility may be sued for negligent hiring if it hires an employee with a history of criminal or sexual misconduct to care for a vulnerable patient. Similarly, a cable company may be at fault for ignoring a complaint that an employee who regularly enters customers' homes abused a customer during a previous home visit. Failed security precautions can involve discrete problems such as a broken door lock or invoke broader policy questions such as an allegation that the defendant failed to appropriately train staff, parents or children to recognize and properly react to signs of sexual abuse.

Although there have been no U.S. studies of the therapeutic consequences of tort claims filed by sexual assault victims, research from Canada reveals both therapeutic and anti-therapeutic outcomes of these actions. Most claimants reported some negative emotional consequences from the litigation process, and in particular, from delay and adversarial cross-examination. Positive consequence of the litigation included victims feelings that they were well represented by their lawyers, achieving satisfactory financial compensation, and experiencing a feeling of closure from the litigation.

Benefits of tort actions include the fact that the victim, as a plaintiff, controls many important decisions in the litigation including whether to file a case, proceed with it, settle the case or pursue further action. Moreover, civil cases require a lower burden of proof than do criminal cases (typically 'preponderance of the evidence' or 'clear and convincing' in civil cases as contrasted with 'beyond a reasonable doubt' in criminal law). Legal rules in tort are also more fluid and offer broad protections. Through the civil litigation process, the victim can reach a settlement of the case that includes financial and other terms. For example, the parties may agree that the perpetrator must transfer jobs or schools or attend counseling.

However, tort actions can also present problems for victims. Tort actions can take a number of years to conclude. Broad rules about exchange of information between parties may threaten victim privacy and access to legal representation can be difficult. Moreover, legal doctrines can make recovery difficult. For example, not only can defendants claim that the victim consented, but they can also claim that the victim herself was at fault. While victim fault defenses have occasionally sparked public outcry and scholars have proposed that they be changed, these defenses hold sway in most states.

Accordingly, victims and advocates should consider tort cases as one viable option for victims but must examine the advisability of suit in light of a number of contextual factors.