Representing a Child Victimized By Sexual Abuse
Representing a Child Victimized By Sexual Abuse by Thomas A. Cifarelli
Reprinted from the Consumer Attorneys Association of California's Forum Magazine (2001)
I. Introduction
Few events can destroy the innocence and promise of youth like an incident of sexual abuse. The trial attorney's responsibility in such a case cannot be overstated. Representing a child who has been victimized by sexual abuse can be both challenging and rewarding. When confronted with the task of representing a child who has suffered a sexual assault, the trial attorney must serve a critical role, helping uncover the nature and extent of abuse, identifying responsible parties and securing damages to compensate the victim and facilitate the healing process. To meet such a demanding burden you must be prepared to delve into facts that can be uncomfortable and somber. So before undertaking this sort of matter, you should be familiar with what is required to successfully handle such a case from intake through trial.
II. Gathering the Facts
Personal injury matters usually begin with the client interview. A sexual abuse case is no different. Indeed, one of the most critical tasks in representing a child victim of sexual abuse is to get a complete and accurate description of the abuse as quickly as possible after the incident. One initial hurdle will be getting the child to discuss the abuse at all. In fact, if child victims of sexual abuse have any tendency towards dishonesty, it is to falsely deny that they have been victimized at all.1 Inquiring into such traumatic incidents can be harmful, forcing the victim to re-live painful events and potentially causing further psychological harm. Consequently, great care should be taken to properly and compassionately question the child, realizing this task may take weeks, months, or even years before the entire event is uncovered.
A. Questioning the Victim
Most trial attorneys have little if any experience questioning a sexual abuse victim, let alone one who is a minor. For that reason I recommend arranging for your client to be professionally interviewed by a qualified mental health care provider with specific experience working with juvenile victims of sexual abuse. In addition to a wealth of experience, a trained and qualified professional will usually be able to implement effective questioning techniques, standardized tests and even the use of anatomical dolls to assist a young victim in disclosing facts which are often painful and embarrassing.
Anatomical dolls are often used with children who have been the victim of sexual assault or abuse. The primary reason for using anatomical dolls is to help the witness communicate facts or demonstrate conduct during interviews or at trial. This is especially useful where the witness does not have the vocabulary or knowledge to describe conduct associated with abuse or molestation. The use of dolls can also assist witnesses who have problems, for emotional or other reasons, using words to describe sex acts. When anatomical dolls are used to assist witnesses in trial testimony it is important that an appropriate record be made regarding what is being demonstrated with the dolls.
The use of anatomical dolls is not without criticism. It is occasionally argued that anatomical dolls which have visible sexual organs actually may suggest abuse because typical dolls do not have such parts. To counter such an argument, it is best to keep dolls fully clothed and out of sight until needed. Further, only the child should be involved in any undressing of the doll. In addition, only the child should define or name acts or body parts when the doll is undressed. Following these simple guidelines will allow a more accurate expression of the child's level of sexual terminology.
Always remember that interviewing the child victim of sexual abuse is a sensitive task. If a child is repeatedly questioned or forced to confront the facts of abuse in an inappropriate manner, it may have the effect of forcing him or her to relive the incident, causing further damage. Consequently, after I have obtained the basic facts from my client, I generally try to minimize his or her direct involvement in or awareness of the case. Later in this article I will discuss the steps which should be taken to control the manner by which the defense may attempt to improperly gain discovery from your client.
B. Obtaining the "Official" File
Another important step in the fact gathering process is to determine if the matter has been investigated by any "official" agencies such as law enforcement or child welfare. If so, then one of your first tasks will be to obtain the investigating agency's file on the case. Such documents can generally be obtained through a subpoena duces tecum served on the agency along with an authorization enabling you to obtain the information on your client's behalf. If the matter has proceeded to a criminal filing then the DA will be involved. In that case, the civil litigant can attempt to obtain the file with a Petition for Disclosure of Juvenile Court Records under Welfare and Institutions Code § 827.
However, such a petition is not always granted; good cause demonstrating direct relevance and no alternative source for the information must typically be demonstrated.
Often incidents of sexual assault are investigated by state agencies such as the Department of Social Services, as well as law enforcement. In either case, there will likely be a host of interviews, statements, reports, items of physical evidence and perhaps even photos concerning the case. Such evidence can play an important role in a civil action for sexual assault. Accordingly, this material should be carefully safeguarded. If physical evidence is destroyed, there exists the possibility that a defendant could obtain a dismissal or other relief, especially in the criminal case. To avoid this the trial attorney should consider filing a motion to preserve evidence such as clothing as well as notes, interviews, reports and other information collected during the official investigation of your case.
The findings of any medical examination conducted on the victim after the incident will obviously be important. If a medical examination is performed, it should be done as soon as possible after the assault. Indeed, examinations conducted weeks or even days after the incident will likely be of little value due to the child's ability to rapidly heal, thereby erasing evidence of assault.2 Consequently, if an examination conducted more than twenty four hours after the assault fails to yield any physical evidence, that does not mean an assault did not take place. In addition to the passage of time, examination results can be affected by the skill and experience of the examiner, the exam conditions, and whether the victim cleaned up or changed clothing after the assault.
If criminal charges were filed as a result of the incident, then the disposition of the criminal case will certainly be relevant to the civil action. For instance, a conviction, guilty plea or even a plea of nolo contendere in a criminal case may be admissible to help prove certain essential facts in the civil case. (Evid. Code § 1300.) Moreover, such evidence may also be relevant as an admission or declaration against interest. (See Evid. Code § 1220 et seq.)
In short, the fruits of any criminal or state agency investigation may prove critical to a civil action for sexual abuse. Consequently, a trial attorney should obtain such information as soon as possible. This fact-gathering process can often be facilitated by developing a professional and cooperative relationship with the investigating law enforcement personnel as soon as possible. After all, the positions are usually consistent.
III. Analyzing Liability
Once you have identified the facts of the assault and the parties involved, you must turn your analysis towards liability and ultimately damages.
Incidents of child sexual abuse can happen anywhere. Indeed, recent news accounts describe cases in day care facilities, public restrooms and even on the fields of youth sports at the hands of coaches and other trusted adults. However, one area in particular has become an increasingly frequent site of sexual misconduct. Our schools are no longer safety zones to be taken for granted. Given the abundance of recent school-related violence, and since schools can often provide the backdrop for such incidents, I have focused the liability discussion of this article on the potential responsibility a school may face if one of its students suffers a sexual assault on campus.
Each day millions of parents routinely entrust their children to the care of public schools. In fact, it is hard to imagine another setting where parents so freely relinquish control of their children. Consequently, if a child is victimized at school, the district's liability must be considered. Indeed, even without the prior notice often required to establish liability in other contexts, a school's responsibility may often be proven based solely on the affirmative duties imposed by applicable statutory and case law. Specifically, state law mandates that schools provide close supervision to students, as follows:
Every teacher in the public schools shall hold pupils to a strict account for their conduct on the way to and from school, on the playgrounds, or during recess. (Educ. Code § 44807.)
This statute has been interpreted to require schools to supervise their students at all times. (Rodriguez v. Inglewood Unified School District (1986) 186 Cal.App.3d 707.) This supervisory responsibility has several bases. First, school attendance is generally mandated by the Compulsory Education Law. Second, students have a constitutional right to attend safe schools. (Cal Const. Art. I, § 28(c); see also Penal Code § 627 and Educ. Code § 32261.) In fact, due to such provisions, the courts have concluded that "[a] special relationship is formed between a school and its students so as to impose an affirmative duty on the district to take all reasonable steps to protect its students." (Rodriguez, supra, see also Virginia G. v. ABC Unified School District (1993) 15 Cal.App.4th 1848.) Thus, even without facts establishing prior notice, a school has a affirmative responsibility to provide supervision to its students on campus.
If prior notice of similar incidents can be shown, however, then a school district's responsibility may be heightened. For instance, Education Code § 49079 requires districts to inform teachers of any students whose actions during the three prior years were grounds for suspension or expulsion. Such actions include an obscene or violent sexual act. If this evidence can be established, then liability may be more easily proven. Moreover, given the applicability of statutes governing school supervision, negligence per se jury instructions should always be considered in cases involving alleged school district negligence.
A school's liability in the event of a student's sexual assault can, under certain circumstances, be broadened beyond the direct victim. Indeed, at least one appellate decision has held that where the parent of a child victimized at school was not promptly informed of the incident, and witnessed her child's deterioration as a result of the abuse, a claim for negligent infliction of emotional distress may be asserted by the parent. (Phyllis P. v. Superior Court (1986) 183 Cal.App.3d 1193.) In Phyllis P. plaintiff's eight-year-old daughter was sexually molested at her school by an older male student. The school provided counseling to the victim, and warned the perpetrator that his parents would be notified if the behavior persisted, but plaintiff was not notified of the incidents. The misconduct continued and plaintiff observed what to her was an inexplicable deterioration in her child's emotional and physical condition. When plaintiff finally learned of the assaults her emotional distress was compounded. The court held that the school district stood in loco parentis and owed a duty of care not only to the child, but to her mother as well. Although such a factual scenario essentially requires a conscious disregard of known abuse or harassment and may thus be uncommon, such a claim should always be considered.
Naturally, in the context of defending themselves in litigation, schools will often attempt to define their liability in terms of reasonable supervision, attempting to equate their responsibilities to those imposed in general negligence cases. Further, if a child has been victimized at school by another student or a third party, then there will certainly be an attempt to shift liability to the perpetrator under the Fair Responsibility Act of 1986. (Civil Code § 1431 et. seq, popularly known as Proposition 51.) However, while this argument may reduce liability, it will not provide a complete defense if notice and foreseeability of the assault can be proven.
Moreover, the application of Proposition 51 in the context of a violation of a mandatory duty to supervise may not necessarily be irrefutable. In fact, the Court of Appeal has held that Proposition 51 does not shield an employer who is vicariously liable under the doctrine of respondeat superior from liability for noneconomic damages. (Miller v. Stouffer (1992) 9 Cal.App.4th 70.) This argument seems particularly fitting where one student has been injured by another student at school. Under such circumstances there seems a clear argument that a school's responsibility for the misconduct of its students, over whom it has a mandatory duty to supervise, can be analogized with an employer's responsibility over its employees acting within the scope of their employment. In fact, unlike school districts, employers are usually not charged with mandatory duties over their employees. Consequently, Proposition 51 should not be available to a public school in cases where one student harms another on campus.
If given the opportunity to prosecute such a case, the trial lawyer should be familiar with the host of legal arguments available to impose liability for a child's sexual assault.
IV. Assessing Damages, Beginning the Healing Process
Although the damages suffered by a sexual abuse victim are not always tangible, they are no less real and can often be particularly difficult to assess and treat. Properly evaluating the psychological condition of a child victimized by sexual assault is critical. Initially, it must be understood that in these very sensitive cases the trial attorney's responsibilities include helping facilitate the healing process. Indeed, in the course of measuring damages you will necessarily be required to assess your client's condition and plan a course of rehabilitation. Accurately evaluating the child's psychological condition is essential to recovery. Once the child's condition and level of trauma have been measured, proper steps can be taken to begin rehabilitation.
In examining your client's condition all aspects of damages should be considered. Not only must a proper analysis include a determination of your client's present level of trauma, but it should also consider the affect the abuse may have at the major turning points of his or her life including puberty, entering college and/or the workforce, and relationships and marriage. Naturally, a proper assessment must involve competent expert analysis regarding both current damage and future rehabilitation needs.
As with the initial interview and physical examination, great care should be taken in finding an appropriate therapist to treat the child victim of sexual abuse, particularly since treatment will likely proceed on a regular basis for some time. Consequently, the child should be comfortable and at ease with the therapist and his or her methods of treatment. Several candidates may, therefore, have to be screened before a final individual is selected. Since the therapist will eventually be called to provide testimony on your client's behalf, the therapist's capacity to effectively communicate your client's condition must be considered.
The assessment itself may also include a number of objective components. Several diagnostic tests can be used to assess the emotional and psychological condition of the sexual assault victim. For example, the Adolescent Version of the Minnesota Multiphasic Personality Inventory (MMPI-A) is a set of 478 questions that assesses current psychological symptoms and functioning. It contains validity scales, clinical scales and content scales which can evaluate depression, self esteem, mood and a number of other indicators of emotional condition, functioning and trauma. Other tests frequently utilized to measure the emotional condition of sexual abuse victims include the Million Adolescent Clinical Inventory (MACI), the Trauma Symptom Checklist for Children and the Adolescent Dissociative Experiences Scale. Each can provide valuable, objective and widely accepted criteria to assess your client's emotional and psychological condition.
Any assessment should also include a review of the child's history. If the youngster has experienced other highly traumatic experiences then such incidents should be evaluated to determine their current effect relative to the sexual abuse. The defense will likely attempt to unreasonably identify other untoward events in your client's history as the true basis for the claimed damages.
Finally, therapists often employ anatomical dolls during the treatment of especially young or non-verbal child victims to enable them to demonstrate the acts of abuse in a more comfortable setting. In addition, many therapists encourage victims of sexual abuse to draw pictures as a means of expressing their feelings. The results can sometimes provide compelling evidence of extreme emotional trauma.3
V. Controlling Discovery, Protecting Your Client
Any attempts to obtain discovery into the background of a sexual assault victim will trigger constitutional rights. The U.S. Constitution has been held to provide a right of privacy. (See Griswold v. Connecticut (1965) 381 U.S. 479.) Moreover, the California Constitution explicitly protects privacy. (Cal Const. Art I, §1.) In fact, California's constitutional privacy provision is self-executing and needs no legislation to make it enforceable. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014.) Further, constitutional protection of privacy in discovery matters extends to plaintiffs as well as defendants. (Britt v. Superior Court (1978) 20 Cal.3d 844.) And sexual conduct is within the protected zone of privacy and discovery into this area is strictly limited. (Boler v. Superior Court (1987) 201 Cal.App.3d 467, 475.)
In the arena of civil litigation several statutory devices are also available to protect a victim's rights and dignity. Simply because a child has brought a claim for sexual abuse does not mean that the child's history should be wide open to the defendant's scrutiny. Indeed, a party seeking information concerning the sexual history of a plaintiff in a sexual harassment, assault or battery case must establish by noticed motion: (1) specific facts showing good cause for the discovery; (2) that the matter sought to be discovered is relevant to the subject matter of the case; and (3) that the information is reasonably calculated to lead to the discovery of admissible evidence. (CCP § 2017 (d).) Further, there must be proof of "extraordinary circumstances" justifying discovery. (Vinson v. Superior Court (1987) 43 Cal.3d 833.)
In Vinson the Supreme Court suggested that to meet the extraordinary circumstances needed to support a finding of good cause a plaintiff had to contend that "the alleged acts were detrimental to her present sexuality." (43 Cal.3d at 842.) Such a motion must be accompanied by a sworn declaration demonstrating attempts to informally resolve the issue without court intervention.
The following circumstances have been found NOT to establish good cause to justify such discovery: Pleading a cause of action for emotional distress stemming from the sexual abuse; claiming a need to properly question witnesses to uncover potential bias, interest or motive; the fact that the defendant seeking discovery faces vicarious liability; arguing the utility of information about two sexual assaults on the plaintiff as a child was necessary to an understanding of the plaintiff's sexual perceptions, attitudes, reactions, and behavior as an adult. (See generally, Mendez v. Superior Court (1988) 206 Cal.App.3d 557 and Knoettgen v. Superior Court (1990) 224 Cal.App.3d 11.)
A child who sues a psychotherapist under Civil Code section 43.93(c) for sexual contact may invoke the protections of section 43.93(d) when the defendant initiates discovery concerning the plaintiff's sexual history. The statute forbids such discovery unless the defendant first obtains a court order.
These tools should be vigorously invoked where applicable to control attempts to subject your client to intrusive and oppressive discovery. The trial attorney should also be wary of more subtle but no less damaging discovery efforts.
Some defendants will undoubtedly attempt to circumvent discovery restrictions by seeking information directly from the victim. A defendant in a civil action has the right to one physical or, under certain circumstances, mental examination. (CCP § 2032.) Although a mental examination may only be obtained by noticed motion or written stipulation, a claim for sexual abuse with resulting severe emotional trauma will often warrant such an evaluation. Consequently, rather than oppose a motion that will likely be granted, the plaintiff attorney should attempt to negotiate a reasonable stipulation that will safeguard your client's interests.
Several options are available to thwart defense efforts to use the mental examination to manipulate your client and extract impermissible information. In cases where damages appear to be clear, the plaintiff attorney should consider proposing the selection of one mutually acceptable therapist to question the victim and provide an opinion as to damages. Such a tactic can eliminate the expert becoming an "advocate" for one side. Further, forcing the parties to accept one expert in this area will remove damages as a source of disagreement, helping streamline the resolution of the case. Moreover, any mental examination should be audiotaped so that the questioning can be memorialized and contemporaneously monitored. This is of utmost importance where each side has selected its own damages expert. Under such circumstances the defense's exam must be closely observed. In this way, a proper exam can be assured and inappropriate inquiry can be stopped before improper questions produce unfairly damaging answers.
VI. Trial Considerations
The experience of trial can frighten a seasoned trial attorney, let alone a party called upon to testify. When that party is a young child whose been victimized by sexual abuse, the ordeal of trial can be particularly traumatic. Consequently, steps must be taken to make the trial process more manageable for your young client.
Initially, you must safeguard your client's privacy. Once a lawsuit is initiated steps should be taken to prevent the disclosure of your client's identity in connection with such a highly sensitive subject. This can usually be achieved by either filing the complaint under an alias such as ROE, filing suit without using your client's full name, or by obtaining an order sealing the file during the litigation and after its conclusion. It may be necessary to have certain witnesses involved in the case sign confidentiality orders preventing them from disclosing your client's identity.
Sexual assault trials involving children have the tendency to generate public interest and media attention. An argument can be made that closure of the courtroom during the testimony of the minor victim is needed to encourage child victims to come forward. However, the U.S. Supreme Court has rejected this contention. (Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596.) But, federal law permits closure of the courtroom during the testimony of a child abuse victim under the Child Victims' and Child Witnesses' Rights Law. (18 U.S.C. 3509(e).) This law, however, is not automatic and requires the court to determine that the child will suffer "substantial psychological harm" or that public testimony "would result in the child's inability to effectively communicate" before allowing closure of the courtroom. Once such a determination has been met, such closure must be narrowly tailored and based upon a compelling interest. An alternative to closing the courtroom entirely is to obtain an order allowing the child victim to testify live via video feed from another location. This will enable your client to provide testimony concerning very personal and potentially embarrassing facts without having to do so in front of scores of strangers.
VII. The Sexual Abuse Case and the Jury
Jury selection is perhaps the most critical part of any trial. Yet it is that aspect of trial over which the attorney usually has least control. Jurors will often make decisions based upon long held feelings, beliefs and emotions. Since the topics of sex and sexual assault often trigger powerful reactions, a juror's feelings, emotions and beliefs must be thoroughly explored during jury selection. Use of a juror questionnaire may be helpful in screening a large panel of jurors. Questionnaires can also be useful to help focus your inquiry during jury selection, especially when the court restricts the length of voir dire. Many prospective jurors will be more willing to candidly reveal their beliefs, attitudes and opinions on paper than in a face-to-face discussion in open court.
Trial attorneys and jury consultants generally agree that the ideal juror is one who can closely identify with your client. This certainly holds true in the area of civil sexual abuse trials. The notion that a juror will identify with a victim is based on the principle that people generally tend to believe and trust those most like themselves, either because of a similar background or shared experience. Although a prospective juror who has personally been victimized by sexual assault will likely be removed for cause, there are methods to determine whether a prospective juror can identify with your case for other reasons. For instance, a potential juror who is a parent with a pre-school child may identify with a five-year-old victim and be favorable for the plaintiff. Conversely, one who is in regular contact with children, such as a teacher or coach, may feel particularly vulnerable to allegations of abuse and thus may identify with a defendant. Finding the jurors who most closely relate to your client will require extensive inquiry regarding the issues in the case.
During jury selection you must be mindful of how jurors perceive your case. Many prospective jurors will feel uncomfortable listening to testimony regarding sexual assault and other matters of a sexual nature. In fact, often prospective jurors will ask to be excused from such a case because of its sensitive nature. It is certainly understandable for a reasonable person to be disturbed by the facts surrounding a sexual assault case. However, a New York appellate court has held that a trial court need not excuse for cause a juror who voices misgivings about sitting on a sexual assault trial, unless the juror expresses a preconceived notion of the defendant's guilt. (People v. Zurak (1991) 571 N.Y.S.2d 577.) Moreover, a juror sensitive to the facts of such a case may more fully appreciate the enormous damages that can result from an incident of sexual abuse. On the other hand, plaintiff's counsel should be extremely wary of prospective jurors who are not made uncomfortable by the topic of sexual assault. Such jurors may trivialize an incident of abuse and ultimately be unwilling to fairly award your client the full damages to which he or she is entitled.
VIII. Conclusion
Our children are our most precious gift and resource. An incident of sexual abuse can shatter a child's world and result in a lifetime of debilitating pain, suffering and emotional distress for the victim and their family. Consequently, your role as the trial attorney in such a case is enormously important. It is your responsibility to gather the facts, determine the responsible parties, assess your client's condition and future rehabilitation needs and, if necessary, skillfully maneuver the case through trial. In so doing, you can provide an invaluable service, helping your client obtain much needed care and rehabilitation while ensuring that child care givers take their responsibilities seriously and are held accountable for negligence. The dedication required to successfully handle such a claim can be enormous. But effectively resolving a child sexual abuse case can be one of the most important tasks we accomplish as attorneys.
1 Tara Ney (Ed.), "True and False Allegations of Child Sexual Abuse: Assessment and Case Management," New England Journal of Medicine, 333(23): 1573-1574.
2 A. Schiff, Examining the Sexual Assault Victim. J. Fla Med Assoc. 1969;56:732-739. see also; J. McCauley, R.L. Forman, G. Guzinski, Toluidine blue in the detection of perineal lacerations of pediatric and adolescent sexual abuse victims. In press, Pediatrics.
3 A.W. Burgess (Ed.) Child Trauma: Issues and Research. Garland: New York, New York.
