There are some adult survivors of childhood sexual abuse who could successfully bring claims to recover money damages from the persons who caused them harm. In addition, claims can be brought by parents on behalf of their children who have been harmed. This article is intended to be a general guide for persons who might consider bringing such claims.
A recent case illustrates many of the legal and therapeutic aspects which arise when an adult survivor considers commencing a suit against someone who abused them when they were young. A woman in her early thirties had been gravely troubled for many years with a history of depression, acute anxiety and self destructive behavior. In 1990, she began to experience fragmented memories of abusive acts performed by an older man who had been a friend of her parents. The memories of the abusive acts seemed very real and were very disturbing. The woman was much troubled by the emerging memories and she struggled with the help of her therapist to clarify the details of the memories. Through the therapeutic process, the woman recalled the presence of a young friend of hers when the abusive acts had occurred. The young woman called her friend to discuss the memories. She and the friend then discussed, for the first time, that they had each, for many years, suffered from very similar psychological difficulties. The friend recalled that the same older man had abused both of the women on multiple occasions when they were children. The friend stated that she had always recalled the events and that her memory of the acts by the older man had always remained clear.
The two women then consulted an attorney who advised that the time period in which a civil claim could be brought against the older man had recently been extended. The women brought a civil lawsuit against the abuser seeking compensation for the psychological and emotional harm which he had caused to each of them. The claims were successful.
In civil cases the injured person commences a case through an Attorney whom they may select. If the injured person is a child, a case may be brought on their behalf by a parent or guardian. Civil cases seek financial compensation for the physical, emotional and psychological harms done to the persons by the acts of the abuser. A person seeking recovery in a civil action may claim damages for medical care and therapeutic care and may also claim damages for the impairment of their capacity to carry on their life. The standard of proof required to win a civil claim is proof by a fair preponderance of the evidence, which is a less rigorous standard than is required in a criminal case. If a civil action is successful, an abuser can be ordered by the Court to make payment to a person harmed. If the abuser has assets from which the Court order can be collected, money can be recovered to compensate for the harms that were caused.
In addition to seeking compensation for the harms that were done, there are other ways civil litigation can be helpful to recovery. The person bringing a claim may feel a sense of empowerment by using the legal system to prove the claim against an abuser. Bringing a claim can also develop a sense of closure by showing that the abuser did in fact cause the harms which have troubled the abused person's life.
There are several elements that can contribute to a successful civil claim in Connecticut. The elements include the evidence to prove the occurrence of the sexual abuse, evidence to prove the emotional and psychological harms that were caused, and assets available to an abuser from which the judgment of the Court could be collected.
In some cases there is evidence which can support a client's memory of the abuse. In my practice, I have investigated cases in which a brother, sister, or friend was abused at the same time, or in which another young person accidentally discovered the things that were happening. In one case, a brother opened a barn door and saw what was happening to his younger sister. Fifteen years later he became an important witness on her behalf. Other evidence could also include confessions of the abuser who may have talked to other family members or to other adults. Sometimes the abuser might feel safe after the time for criminal prosecution has passed and they might talk of what happened. That type of testimony can still be used to support a civil claim.
There are decisions by Court and Legislatures which establish the Statute of Limitations, which is the time period during which civil claims must be brought. The Statute indicates that if claims are not brought within certain periods of time, that they could be barred as a matter of law. In October of 1991, the Connecticut Legislature passed a new Statute which established that for claims based upon personal injury caused by sexual abuse, sexual assault, or sexual exploitation of a minor the victim could bring a claim until seventeen years past his or her age of majority. Since the age of majority is defined to be eighteen, the effect of the Statute is that claims can be brought by a person in Connecticut until he or she reaches the age of 35.
There were many reasons to support extending the time period for bringing civil claims. One purpose was to recognize that some survivors of abuse do not realize the degree of their psychological damage until later in life. In such cases, the degree of emotional harm might not become clear until the demands and responsibilities of adulthood. In some other cases, an abused person might not have sufficient strength in his or her recovery until early adulthood. The extended claim period of the new Statute of Limitation also recognizes that in some cases memories of abusive acts may be repressed and may be recovered in adulthood through the therapeutic process. Since the length of the Statute of Limitations varies from State to State, persons with potential claims in States other than Connecticut should seek an attorney's assistance to determine the length of the claims period for their particular case.
Civil litigation requires that a person be sufficiently strong in their recovery process. One reason is that if litigation is undertaken there will be a degree of loss of privacy. In the therapeutic environment, psychiatrists, psychologists and therapists are bound by ethics of the profession to keep communications confidential. In litigation, Courts have said that when someone presents a claim to the Courts saying that they have suffered psychological or emotional harm that by bringing a suit they have chosen to place consideration of these matters before the Court. Therefore, their psychological and therapeutic history can become disclosed to be analyzed as part of the litigation. The litigation process also include discussion of the abusive acts with an attorney and perhaps with members of the attorney's staff. The litigation process may include the answering of written questions known as Interrogatories and may include the answering of questions at trial proceedings. Sometimes those procedures may activate memories and/or may trigger flashbacks, depression, or anxieties. For those reasons, it is highly recommended that a person who considers litigation discuss with both their attorney and with their therapist whether they are ready and able to undertake the litigation process.
There are many steps which attorneys can use to help protect the privacy interest of their clients in civil litigation. These steps could include securing Court Authorization for the client to proceed under a fictitious name, or securing Court Authorization that a file be sealed or that its contents be barred from disclosure to newspaper reporters or to members of the public. There could also be Court Authorization to delete a client's name from any medical or therapeutic reports.
There has developed increased understanding of the harms caused by childhood abuse. New laws and Court decisions have increased the legal recourse available to victims. Attorneys have developed more devices to help protect privacy interests of victims and to protect the emotional health of their clients. These changes have helped to create an environmental in which survivors of abuse are more able to assert their rights against those who have caused them harm.
For information on a potential specific claim, Attorney Fairlie extends the courtesy of a private, confidential initial consultation upon appointment.