Sexual Abuse of Children With Disabilities: Pursuing Litigation on a Child’s Behalf

By June 4, 2019 January 29th, 2020 Blog
abuse of children with disabilities
This post was written before the passage of AB-218. For information regarding the statute of limitations for filing a civil lawsuit for childhood sexual assault/abuse, click here or contact our team of experienced representatives.

 

Children with physical or mental disabilities are more likely to be sexually abused than their peers. While these children are increasingly dependent on adults for care, California law makes it plain: it is never acceptable, under any circumstance, for an adult to inappropriately touch a child. In fact, sexual contact with a disabled child is punishable with more severe consequences. 

In this article, you will learn about California laws pertaining to the sexual abuse of children with disabilities, the statute of limitations regarding cases of child sexual abuse, and how to pursue litigation on behalf of a disabled child.

Statistics on Sexual Abuse of Children with Disabilities

Why Are Children With Disabilities Targets for Sexual Abuse?

The spectrum of “disability” ranges from behavioral issues (such as ADHD), hearing impairment (deafness), visual impairment (blindness), emotional disturbances (such as explosive anger disorder), intellectual limitations (such as mental retardation), learning disabilities, orthopedic impairments, autism, traumatic brain injury, or any other medical condition that makes a child more dependent on adult caregivers. Specific cognitive, behavioral, and physical aspects will create different vulnerabilities for each child.

It is a myth that disability makes a child “less desirable” to sexual predators. The majority of sexual offenses have nothing to do with desiring the victim. It is almost unimaginable to determine how a person could prey upon a child, let alone a child who already suffers disability-related difficulties. Yet, possible reasons include:

  • The misperception that disabled children won’t suffer additional harm from sexual abuse as other children would because “they cannot comprehend” what has happened.
  • Certain types of disabilities can mask behavioral changes that could otherwise be attributed to sexual abuse, making it easier for the perpetrator to get away with it.
  • Children with disabilities are less likely to report what happened. Depending on the disability, they may face communication challenges or may seek acceptance.
  • Law enforcement lacks sufficient training on how to interrogate victims with disabilities.
  • Disabled children in out-of-home placements or those with physical disabilities often see a revolving door of different caregivers coming in and out, increasing the sex abuse risk.
  • Children with cognitive disabilities may not be aware of what is or isn’t appropriate action by an adult and may themselves act friendlier with adult caregivers than the norm.

California Laws Pertaining to Abuse of Children with Disabilities

A number of California laws may apply to the sexual abuse of a disabled child, such as:

PC 243.4: Aggravated sexual assault occurs when a person touches the intimate parts of another person against that person’s will for the purposes of sexual arousal, gratification, or malice. This code applies when the victim is physically restrained, disabled or medically incapacitated, or coerced by fraud.

PC 261: Felony rape occurs when the perpetrator has sex with a person who cannot give consent due to intoxication, a mental disorder or physical disability, or unconsciousness. Rape can also be propagated by physical force, violence, menace, fear of bodily harm, fear of retaliation, or fraud.

PC 261.5: It is statutory rape when a person over 18 engages in sexual activity with someone under 18, as a “minor” cannot legally consent to “adult” relations. Depending on the age difference, statutory rape can be tried as a misdemeanor or a felony offense.

PC 288: Lewd or lascivious acts with a child occur when an adult touches a child 15 years or younger for the purposes of sexual gratification. Like statutory rape, this charge may be classified as a misdemeanor or a felony, depending on the age gap and relationship.

PC 290: Sex offenders must register on the state’s sex offender list. Tier one, including misdemeanor offenses and indecent exposure, requires registration for at least 10 years. Tier two, including lewd acts with a minor under 14, requires registration for at least 20 years. Tier three, including rape, repeat offenders, and those who commit sex crimes against children under 10, requires registration for life.

PC 368: Sexual assault of a dependent or disabled person, regardless of age, is determined to be a “crime against public decency and good morals.” Under this law, a physically or mentally impaired person receives special protections because they may be on medication or suffer limitations that make it difficult to protect themselves or report criminal activity. In essence, a disabled adult cannot legally “consent” to sexual activity.

PC 11165.7: The Child Abuse and Neglect Reporting Act (CANRA) applies to any person who works with children, including teachers, school administrators, daycare workers, medical professionals, coaches, clergy, and others. If child abuse is known or suspected, these parties must, by law, report to authorities within 36 hours. Failure to do so is a misdemeanor crime, punishable by a fine of up to $1,000 and up to six months in jail. These individuals may also be sued in civil court for their part in the failure to protect a child.

Statute of Limitations to Seek Justice for a Disabled Child

Timing matters in the court of law. Though you may be dealing with a lot of emotions and concerns after learning about a disabled child’s sexual abuse, you should act promptly—not just to preserve evidence, but to guarantee that you have a valid claim in court.

State statutes of limitations are not meant to make it hard on victims, but rather, they are put in place to protect the innocent from frivolous, unsubstantiated claims based on expired evidence. California recently abolished the statute of limitations for pursuing criminal child sex abuse charges. Now criminal charges can be brought at any time. However, if the abuse took place prior to January 1, 2017, the old 10-year deadline may apply.

The civil statute of limitations allows someone to file a civil claim against the sexual abuse of a child up until the child is age 26. In some circumstances, the state’s “rule of delayed discovery” allows for filing within three years of realizing present hardships are related to past sexual abuse.

What to Do If a Child You Care for Has Been Sexually Abused

Seek help for the child. Taking care of the disabled child is undoubtedly your first concern. The attorneys at Lewis & Llewellyn are always happy to provide referrals to the best local care providers. In the San Francisco area, we recommend CALICO, which stands for the Child Abuse, Listening, Interviewing, and Coordination center. Partner Ryan Lewis is a board member of this group, which coordinates effective testimony and recovery during the early aftermath of child sexual abuse. You may also call the RAINN hotline at 1-800-656-4673 to connect with the full spectrum of local resources.

Contact the District Attorney’s Office. When you file a police report, substantial claims may be forwarded to the nearest district attorney to press criminal charges. If convicted, the punishment for rape (a felony in California) is three, six, or eight years in prison. Rape of a minor under the age of 18 can increase the prison term to seven, nine, or 11 years. Rape of a minor under the age of 14 can lead to nine, 11, or 13 years behind bars. When the victim is a disabled person, another layer of punishments can be applied—an extra one, three, or five years in jail; mandatory probation; and inclusion on the state sex offender registry.  

Call a civil attorney. Even if you don’t decide to pursue criminal charges against the perpetrator, filing a civil lawsuit on behalf of the child victim is another option available to you. Benefits of civil litigation may include:

  • Financial compensation: Your family could receive money to cover past, present, and future medical expenses related to the sexual abuse (including mental therapy counseling); loss of past, present, and future wages; and emotional pain, suffering, and distress.
  • Proven Liability: Civil court uses a lower standard of evidence to arrive at a decision. You must prove that your version of events was 51% or more likely to have happened (a standard based on “the preponderance of evidence.”) In criminal court, you have to prove what happened “beyond a reasonable doubt,” which is 95% or more likely to have happened. So even if you were unsuccessful in criminal court, you can still win in civil.
  • Third Party Liability: Civil courts allow for an expanded scope of liability to include institutions responsible for the safety of the disabled child. Beyond the perpetrator, caregivers can sue a school district, daycare, church, medical center, or other establishments in connection with the sexual abuse. Mandatory reporters who knew (or reasonably should have known) about the abuse, but failed to contact authorities, may also be held liable in civil court.
  • The Power of Investigation: Many civil attorneys work on a contingency basis, meaning they only get paid for cases they win. With Lewis & Llewellyn, you can rest assured you’ll get a thorough, in-depth investigation. We can subpoena documents, conduct interviews, access police reports, and petition the court to demand the release of sensitive information pertaining to your case. By the time we build the case, you should have a clear picture of what happened, how it happened, and why it happened. For some clients, this is the most rewarding part of working with a civil attorney.   
If you’re advocating for the abuse of children with disabilities and would like to file a civil lawsuit for abuse suffered—even if it happened years ago—Lewis & Llewellyn has the experience, grit, and compassion to help you obtain justice and maximum compensation. Contact our team online for support and guidance to see you through this emotional time, or call +1 (415) 800-0590 to schedule an appointment with an advocate today.

DISCLAIMER: The information in this blog is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this blog or on this website should be construed as legal advice from Lewis & Llewellyn LLP. Neither your receipt of information from this website, nor your use of this website to contact Lewis & Llewellyn LLP creates an attorney-client relationship between you and the firm or any of its lawyers. No reader of this website should act or refrain from acting on the basis of any information included in, or accessible through, this website without seeking the appropriate legal advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s jurisdiction.

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