Financial condition of the perpetrator
Many, many sexual abuse of minors cases have very little value because the perpetrator defendant is judgment-proof or close to it. For a sexual molestation case to have significant settlement value against the perpetrator, the perpetrator must be very, very wealthy. Even if the perpetrator has a general liability insurance policy, in most instances there is virtually no way to tap into the insurance policy for damages resulting from sexual abuse of a minor.
Most child molestation cases will involve a concurrent or prior criminal prosecution of defendant. The expense of defending the criminal charges are likely to “eat up” most of the assets of even an upper middle class perpetrator. Any significant jail time is likely to lead to the financial ruin of almost anybody but the wealthiest perpetrator.
Whatever money is not “eaten up” in the criminal defense is likely to be spent in the defense of the civil case. The threat of bankruptcy will loom large over almost any potential litigation.
Thus, in assessing the settlement value of a sexual abuse of a minor case against a perpetrator, the plaintiff and the plaintiff’s attorney must usually focus more on the financial condition of the perpetrator and less on the liability, causation and damage factors that normally go into the evaluation of a case.
The strength of the case against a legally responsible entity
Because of the financial constraints in collecting a significant settlement from a perpetrator, many lawsuits involving sexual abuse of a minor are litigated against entities that may have a duty to protect a minor from a perpetrator. In these cases, the financial status of the business entity defendant is rarely an issue, since the entity usually has sufficient assets or insurance to cover the claim. The focus on these types of cases will be the strength of plaintiff’s legal claim against the business entity. The settlement value of a sexual molestation case against a business entity will be greatly increased if any of the following factors exist:
- The business entity negligently hired a perpetrator with a criminal background and/or a record of child molestation.
- Plaintiff can establish that the business entity knew of or had “notice” of the perpetrator’s propensity to molest minors, seek out the attention of minors or act inappropriately around minors.
- Defendant is an entity such as a school which is aware of the need to protect its students, and defendant did not take appropriate steps to protect the students from the perpetrator or potential perpetrators (or failed to report abuse).
If plaintiff can establish a strong case against a school or other institution or business entity defendant for any of the above reasons, the value of the case may be greatly increased and settlement evaluation can begin to focus on the injury to plaintiff.
Nature and extent of the abuse and injury
After establishing a potential source for financial recovery in a child sexual abuse case, the next important settlement factor is the nature and extent of the sexual abuse and the injury.
If the child plaintiff is too young, it is sometimes difficult to evaluate damages, which is why it is important for the child plaintiff to be evaluated by a childhood psychologist trauma expert. In most cases, it is important that the plaintiff’s personal injury attorney in some manner provides the expert’s opinion to the defense lawyer before a settlement proceeding.
The evaluation of an injury to a child of a young age for settlement purposes will typically focus on the child’s behavior, often acting out behavior. When evaluating the child plaintiff’s injury, it is important to deal with future psychotherapy. Psychological experts who are familiar with childhood sexual abuse usually agree that the plaintiff will require significant psychotherapy at various stages of his or her life, including:
- Around the time of first sexual experiences.
- Marriage or significant adult relationships.
- Years in which plaintiff’s own children are the same age as plaintiff was at the time of his or her own abuse.
Accordingly, settlement evaluation should take into consideration plaintiff’s psychological expert’s estimates of reasonable future treatment needs and future suffering.
Clarity of causation
Plaintiffs in many childhood sexual abuse cases demonstrate clear behavioral problems and other signs of mental and emotional injury. However, it is sometimes challenging in a childhood sexual abuse case to establish that the subject abuse “caused” the plaintiff’s behavioral problems and other injuries as opposed to any of the following:
- A biological predisposition to behavioral problems or depression or anxiety.
- Poor parenting.
- Normal developmental challenges.
- Other stressors such as divorce or death.
Of course, even if plaintiff’s predisposition or developmental or environmental stressors made plaintiff more vulnerable to an injury perpetrated by the abuser, the subject abuse may still have been the causal agent for plaintiff’s mental and emotional injuries. Still, it will be the defense settlement position that these other factors actually caused plaintiff’s problems, not the abuser.
The more that plaintiff’s acting out behavior is outside of the developmental norm, and the fewer environmental stressors that plaintiff has had in his or her life, the clearer will be plaintiff’s case.
The settlement value of plaintiff’s case will increase if causation can be plainly established by an elimination of factors, other than the subject sexual abuse, as causes of plaintiff’s injury.
Credibility of plaintiff
It is very, very rare to find a child molestation/sexual abuse case in which there are any witnesses to the actual molestation. Most jurors believe that children are capable of distorting the truth and are easily influenced to lie by people in authority positions in their lives such as parents. Thus, the settlement value of any child sex abuse case depends to a great extent on the credibility of the child plaintiff.
If there is physical evidence of sexual abuse, plaintiff’s credibility will be less important. However, in most situations the credibility of plaintiff’s case will depend upon how, why, when and to whom plaintiff first reveals the sexual abuse. Factors which will lend credibility to plaintiff’s case, thus strengthening the settlement value of the case, include:
- Defendant had the opportunity to commit the unwitnessed abuse.
- When first reported, the abuse is described in an age-appropriate manner.
- The abuse is reported spontaneously.
- Plaintiff is allowed to tell his or her story without somebody asking leading and suggestive questions when plaintiff initially reports the abuse.
- Plaintiff and his or her family have no ulterior motive for claiming abuse.
In most cases, it is important for the plaintiff’s child abuse injury attorney to retain a psychological expert who specializes in child sexual abuse cases. The expert can testify that the manner in which the sexually abused plaintiff reported the abuse is credible and consistent with other child abuse cases.