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The harm suffered as a result of sexual abuse is oftentimes more difficult to measure as compared to other personal injury cases. For example, in a car accident, it’s easy to calculate the total medical bills for physical injuries sustained. Emotional damages are then added based on a percentage of the physical harm experienced. While there can be serious physical injuries associated with sexual abuse, they often pale in comparison to the lifetime of emotional and psychological damage endured by the survivors.

Unlike criminal court—which seeks to punish wrongdoers with jail time and other sanctions—civil court focuses on compensating survivors for the harm they have suffered, are currently suffering, and are likely to suffer in the future. Not every law firm has the expertise, the connections, or the resources necessary to handle cases that involve complex and nuanced non-physical injuries. In many ways, finding the right representation will be the key to your recovery. An experienced civil attorney will know exactly how to measure harm in sexual abuse cases and will fight to obtain a recovery on your behalf.

Statistics on the Cost of Harm in Sexual Abuse Cases

Child sexual abuse is not only unconscionable, but it exacts a hefty financial toll on society as well. According to a study conducted by nonprofit Darkness to Light, the average lifetime cost per victim of child abuse is $210,012, which stems from costs associated with healthcare, criminal justice, child welfare, special education, and productivity losses. Further, social impacts include delinquency and crime related to substance abuse, academic problems, teen pregnancy, and oversexualized behavioral problems. There are also health impacts related to emotional and mental health problems, substance abuse, and obesity-related disorders like diabetes and heart disease.

In a typical personal injury case, the courts generally determine compensation based on claims such as medical costs, loss of wages, loss of consortium, and emotional harm. Civil cases against sexual abuse may name many of these same damages, but the calculations are more difficult to ascertain.

What Damages Are Listed in Civil Sexual Abuse Lawsuits?

In the immediate aftermath of sexual abuse, a team specializing in sexual trauma can be helpful in analyzing the survivor for injuries. During the first 48 hours after an incident, medical professionals can document physical damages, such as bruises, cuts, scrapes, lacerations, soft tissue tears, burns, broken bones, head trauma, untreated asthma, or sexually transmitted disease. Investigators are then able to provide their medical opinion on the need for medical treatment. However, one study found that eight percent of physical harm was noted in cases of sexual abuse, neglect, and emotional maltreatment than in cases of physical abuse.

There need not be physical signs of trauma to win compensation in a civil lawsuit. Most of the damage suffered as a result of sexual abuse is typically psychological. One man who was sexually abused by a priest for two years during his childhood explained his ongoing struggles to NPR: “I felt that… I sometimes couldn’t look people in the eye because they would know. I felt that everybody knew that I was sexually abused. The sexual abuse drove me into such a dark place [with drinking and drugs] that it was hard to get a grip on responsibly, reality, work, you know, saving money.” He estimates that he has spent close to $2 million on drugs and alcohol self-medicating.

Emotional Trauma Can Be More Harmful Than Physical Injuries

Attorneys stress the enduring nature of emotional injuries in court. For some sexual abuse survivors, there may be minimal consequence to their adult lives. For others, psychological, physical, emotional, and behavioral symptoms can be severe and may persist for decades or even a lifetime.

Sometimes there may be no immediate evidence of emotional trauma from childhood sexual abuse as the effects may surface later. One common timeframe for symptom emergence occurs when a survivor of sexual abuse reaches puberty, causing body image distortions, avoidance from peers, persistent victimization, or a stymied approach to relationship formation. The inability to trust authority figures can also lead to rebelliousness in adolescents.

Other common triggers include life events such as marriage, death, divorce, or the birth of a child. Sexual abuse can impact a survivor’s relationships with their spouse or children. Emotions such as fear, shame, humiliation, self-blame, or guilt may emerge, leading to depression, anxiety, or PTSD. Intrusive and recurring thoughts, nightmares, and flashbacks are common signs of PTSD.

The ramifications of sexual abuse can be quite complex, which is why you need a strong advocate on your side during civil proceedings, not just any personal injury attorney claiming to be a Jack of all trades.

How an Experienced Sexual Abuse Attorney Can Help

Due to the complex nature of sexual abuse, you should seek to retain an attorney who has substantial experience and knows how to measure harm in sexual abuse cases. It’s important to have an attorney who can foresee what damages can reasonably be gained, given your unique circumstances. The right lawyer will be devoted to the cause of justice for sexual abuse survivors and will serve as your advocate and confidant throughout the litigation process.

The civil attorneys at Lewis & Llewellyn have spent years building relationships with experts, including psychiatrists, researchers, insurance adjusters, and world-renowned psychology experts. Our prepared team brings witnesses to the stand who can focus the court’s attention to the impacts of sexual abuse and how survivors are affected later in life.

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.

By legal definition, a “personal injury” refers to injury to a person’s physical body or mind, rather than property damage. A lawsuit may be filed when a person’s injuries can be traced to another party’s recklessness, negligence, malice, or breached duty of care. Personal injury attorneys commonly represent motor vehicle accidents, slip-and-falls, assaults, dog bites, workplace accidents, medical malpractice, and defective medications or products.

Technically, sexual abuse is considered a type of personal injury, though it’s important to find a law firm specializing in this niche. In many ways, sexual abuse is not a straightforward personal injury claim. It takes a skilled, persistent team of attorneys who understand the subtle nuances of the law to win these cases.

How Sexual Abuse Cases Are Different From Personal Injury Cases

Timing

In a car accident, for example, you may wait until you’ve healed and completed physical therapy or rehabilitation before filing a lawsuit. It might take you a year before you realize the full extent of your injuries and the ongoing trauma associated with the initial accident. Rarely do individuals wait to file a claim after a car accident that resulted in a personal injury. The financial burden of most personal injury cases is evident immediately and the need to pay one’s medical bills drives many plaintiffs to file as soon as possible, particularly because they have missed time off work and suffered a loss of income in the immediate aftermath of the accident.

On the other hand, latent filing is a common issue in cases of sexual abuse, particularly childhood sexual abuse, where the pain is often emotional in nature. Oftentimes, survivors of childhood sexual abuse don’t understand the wrongfulness of the abuse or its pernicious damages until years later, and therefore don’t come forward immediately following the abuse. Additionally, sexual abuse is intentional in nature, rather than negligent or accidental, so victims may fear retaliation from the abuser if they speak up.

Statute of Limitations

The statute of limitations refers to the deadline for filing a lawsuit or pressing criminal charges. Each state has its own laws, which are subject to change. For personal injury cases in California, plaintiffs have two years from the date of the injury to file a civil lawsuit. When it comes to the statute of limitations for incidents of sexual abuse in California, the deadlines differ for pressing criminal charges or filing a civil lawsuit. California’s SB 813 outlines the statute of limitations for pressing criminal charges against a sexual abuser. The deadline for filing a civil lawsuit depends upon your age and when the abuse occurred.

Section 340.1 of the Code of Civil Procedure sets the legal deadline for filing civil charges of child sex abuse to “within 8 years of the date the plaintiff attains the age of majority (age 26) or within 3 years of the date the plaintiff discovers that psychological injury or illness occurring after the age of majority was caused by sexual abuse, whichever occurs later. The code also provides for a delayed discovery period of three years. This means that your lawsuit will be timely if it is filed within three years after the date the victim discovers the connection between the injury they have suffered and the abuse itself.

Even if you think your statute of limitations has expired, a skilled legal team can often find loopholes or exceptions to the general rule that will enable your case to be settled or heard by a jury.

Defendants

Many personal injury claims are filed against another motorist or an assailant. In cases of sexual abuse, the abuser isn’t the only one who can be held responsible. Often, the abuser is someone in a position of trust, respect, and authority—a teacher, priest, scout leader, manager, doctor, or coach—placed in this position by an organization. Multiple parties can be liable which means litigating against large and well-funded entities that are focused on their reputation such as school districts, national organizations, athletic programs, nursing homes, churches, and daycare facilities.

Lack of Evidence and Witnesses

There is the potential for many witnesses to come forward in a car accident taking place during rush hour. Security cameras can pick up a premises liability accident. Most injuries happen in public places, where others may witness. Attending physicians are often willing to testify on behalf of their patients as to the injuries sustained. Maintenance records and internal memos subpoenaed can serve as crucial evidence in premises, automotive, or corporate liability cases.

Sexual abuse cases require much more time spent during the discovery phase of investigation. Unlike many personal injuries, most sexual abuse injuries occur in private places and behind closed doors. Because such cases often involve few eyewitnesses aside from the victim and the perpetrator of the abuse, and the physical evidence is often limited, these cases require thoughtful strategy to pursue.

Damages

Damages are determined in a standard personal injury case like a slip-and-fall or car accident by adding up the medical bills, lost wages from days off work, and tacking on a percentage of these tangible losses for emotional hardship. Medical and auto insurance adjusters are often called in to provide an assessment of the damage done.

With a sexual abuse case, the bulk of a victim’s damages are emotional, rather than physical. It’s not as simple as looking at the cost of surgery or a hospital stay. Attorneys must work with a team of experts, including psychologists, to assess the past, current, and future unseen damages caused by the abuse.  

Adding to the difficulty of determining the damage caused by sexual abuse is the fact that some victims repress the memories of the abuse for years or even decades. And some impacts are only seen at later stages of one’s life. For example, a survivor of childhood sexual abuse may suffer new harm related to their abuse later on in their life.

Choose a Specialized Civil Attorney for Your Case

Sexual abuse cases are different from personal injury cases. Many law firms claim to handle sexual abuse cases, but you don’t want to hire an attorney who spends 90% of their time pursuing car accident claims. You want someone who understands the intangible nature of your suffering, someone who knows how to argue for an extension for statute of limitations, and someone who can find the experts necessary to act as valuable witnesses. 

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.

Elder abuse protections are extended to California residents 65 years of age or older, as well as dependent adults between the ages of 16 and 64 who possess physical or mental limitations that restrict the ability to carry out normal activities and protect their legal rights. Elders and dependent adults may suffer from chronic disabilities or temporary afflictions that have landed them in acute care hospitals, psychiatric facilities, nursing care facilities, assisted living, or chemical dependency recovery centers.

Unfortunately, placement in these facilities often results in neglect or abuse. According to the most recent data, 13% of the total complaints to the California Office of the State Long-Term Care Ombudsman involve abuse, gross neglect, or exploitation—over twice the national rate of 5%. In places like Merced County and San Francisco, reports of institutional elder abuse have increased by as much as 20-33% each year.

In California, elder abuse is covered under Penal Code Section 368 and the Elder Adult and Dependent Adult Civil Protection Act (EADACPA). In this article, you learn the basics of who can sue for elder abuse as well as responsible parties that can be sued, what scope the legislation covers, and where to turn for legal counsel.

Who Can Sue for Elder Abuse in California?

You must have “legal standing” in order to become a plaintiff filing a lawsuit. California Civil Code of Procedure Section 367 states that “Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute CCCP 367.” Therefore, the living elder or dependent adult must be named as the principal plaintiff in the suit. The law also allows “a personal representative” to assist with the lawsuit.

Plaintiffs in elder abuse lawsuits may include:

• The elder or dependent adult
• Family members vested with the power of attorney
• Successors or heirs of the estate
• Family members who witnessed the elder abuse
• Conservators or guardians of an incompetent elder or dependent adult
• Spouses of the injured

Multiple plaintiffs can be included in the suit. For instance, an elder sexual abuse lawsuit may name the elder as the principal plaintiff for physical and emotional injuries sustained, but a spouse may also file for “loss of consortium” damages for the loss of society, comfort, and care of the injured plaintiff.

In cases where the elder or dependent adult has passed away, the right to sue transfers to:

• A named personal representative
• The next in line via intestate succession
• A successor in interest (such as a child, grandchild, relative, friend, or guardian)
• A person named as an “interested person”

These individuals may sue on behalf of the deceased victim, as well as on their own behalf for burial and funeral expenses, loss of support/guidance/companionship, loss of finance, and/or emotional distress.

Types of Elder Abuse

Abuse under an EADACPA claim may include any of the following:

• Physical Abuse: Physical abuse can take many forms: assault, battery, use of a deadly weapon, force causing bodily injury, unreasonable physical restraint, deprivation of food or water, withholding or misusing medication, and sexual abuse.
• Sexual Abuse: Rape, forced or coerced sexual contact, inappropriate touching, sodomy, oral copulation, or penetration are all forms of sexual abuse.
• Neglect, Abandonment, Isolation, or Deprivation: Failure to ensure the elder receives proper food, drink, medication, rest, hygiene, clothing, shelter, social interaction, safety, and protection can be grounds for a lawsuit.
• Emotional Abuse and Mental Suffering: Name-calling, blaming, demeaning, humiliating, ridiculing, threatening, terrorizing, menacing, yelling, or isolating the victim from family members are all forms of mental and emotional abuse.
• Fiduciary Abuse or Exploitation: Financial abuses include coercing an elderly person into withdrawing money, forging the elder’s signature on checks or documents, forcing signature of a will/deed/power of attorney, stealing property, extorting money in exchange for providing lifelong care, using possessions or properties without explicit permission, using deception or dishonesty to gain access to finances, cons, telemarketing scams, and charging credit cards without authorization.

Who Can Be Held Liable for Elder Abuse?

The defendants in an elder abuse lawsuit depends upon the circumstances of the crime. For legal remedy, there must be clear and convincing evidence that the defendant has committed an offense out of recklessness, negligence, willful malice, fraud, or oppression. Liability may be assigned to:

• Individuals, such as family members, neighbors, friends, coworkers, or strangers
• Employers like nursing facilities, hospitals, rehabs, or assisted living centers
• Employees like nurses, doctors, officers, administrators, managers, or other caregivers
• Financial institutions, mortgage brokers, home improvement contractors, or advisors

As there may be more than one plaintiff in an elder abuse lawsuit, there may also be more than one defendant named. In most cases, a civil attorney will go after an insured institution, such as a nursing home—not just an individual perpetrator—as this approach stands the best chance of securing successful compensation for elder abuse victims and their families. Even if an arbitration agreement was signed upon admission into a long-term care facility, survivors of elder abuse can still seek justice.  

Let an Experienced Attorney Fight For Your Loved One

It is important institutions designed to care for the dependent be held accountable for enabling elder abuse to remedy the hazardous environment being created and prevent future harm from befalling other elders and dependent adults. While laws in California apply to the criminal punishment of perpetrators of elder abuse, working with an experienced civil attorney helps victims of elder abuse get the compensation they deserve.

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.

Student-athletes have a number of legal options if they have been sexually abused while participating in team sports. When it comes to pressing criminal charges, the actual perpetrator is often the only person held responsible for the crime. If a California District Attorney chooses to pursue the case, it is tried in federal court as The State of California vs. The Defendant. If found guilty, the accused faces prison time, probation, fines, and inclusion on the state’s sex offender registry. While this may be a step in the right direction for holding sexual abusers accountable, it is not the only avenue for seeking justice when a student-athlete has been sexually abused.

In many instances of sexual abuse involving student-athletes, it is found that the abuse could’ve been avoided if those tasked with the protection of youth had not been negligent. Through civil litigation, an attorney explores the legal obligations of all parties involved such as “vicarious liability” and “duty of care.” An experienced attorney looks at systemic failures of trusted individuals and institutions who failed to protect young athletes from harm. Civil Plaintiffs have the opportunity to not only hold all parties accountable for their actions (or inaction), but also to recover financial compensation for physical injuries, mental and emotional trauma, and loss of educational opportunity.

Who to Sue When a Student-Athlete Has Been Sexually Abused

In sexual abuse cases involving serial-abuse within organizations, the perpetrators are often not solely relied upon to pay for damages. Attorneys typically seek to name institutions that aid and abet child molesters as defendants as well. The most recent legislation clarifies the standard of care for all youth sports organizations. According to the Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act of 2017, all adults authorized to interact with an amateur athlete must report immediately any allegation of child abuse of an amateur athlete who is a minor. Anyone who fails to do so is subject to penalty in criminal court and can be held liable in civil court; this includes the perpetrator, the school district, school administrators, and the athletic organization if not affiliated with the school district.

Suing the Perpetrator

Laws prohibit adults in positions of trust and authority from sexual harassment and abuse of young athletes in their care. The spectrum of behavior you may litigate as sexual abuse covers everything from sexual jokes, discussions of a sexual nature, and innuendo, to voyeurism, exhibitionism, and sharing pornographic material, to physical assault. When a coach is accused of sexual abuse or turning a blind eye to sexual abuse, the court will determine the coach’s legal duty to the Plaintiff and what professional standards are expected of that position.

A coach’s duties consist of:

• Providing a safe sport environment
• Using total knowledge and skills of instruction and training
• Using safe and appropriate equipment
• Planning for short and long-term training programs
• Properly matching athletes in competitions based on size, skill, and power
• Sufficiently supervising athlete training and competition
• Warning athletes and parents of the risks involved in the sport
• Providing proper medical care, as necessary
• Taking steps to prevent sexual harassment and discrimination by other athletes or staff
• Reporting suspected or known child abuse to the proper authorities

A coach can be held liable for failing to perform these duties, especially when a student-athlete has been sexually abused, as a result.

Suing the School District

Title IX is a federal law that serves as the grounds for suing school districts for athlete sexual abuse. The premise of Title IX is that all students should receive equal opportunity access to education, free from gender-based discrimination. The courts have interpreted this to mean that students have a right to an environment that is “free from sexual abuse and violence.”

For example, a 2007 federal appeals court decision against the University of Colorado-Boulder ruled that the university had condoned a policy that allowed players to show new recruits “a good time,” which involved sexual assaults. “The likelihood of such misconduct was so obvious that CU’s failure was the result of deliberate indifference,” the court stated in their decision. Though the university refused to admit liability, they wound up settling with two plaintiffs for $2.85 million after the ruling. This particular case was significant in paving the way for university administration, athletic departments, and coaches to report known offenses to the authorities and take corrective actions against perpetrators.

A school district is liable for violating Title IX if it fails to take reasonable action against known student-on-student sexual harassment that the employees knew about or if it failed to take investigative and disciplinary action against an employee claimed to have been committing sexual abuse.

In the landmark 1998 case Gebser vs. Lago Vista Independent School District, the courts ruled that schools can be deemed liable for sexual abuse when “an employee who has been invested by the school board with supervisory power over the offending employee actually knew of the abuse, had the power to end the abuse, and failed to do so.”

Schools are generally expected to put in place:

• A statement openly renouncing sexual abuse
• Rules and remedies should a complaint arise
• A clear policy regarding sanctions for sexual abusers
• Training for all staff members on sexual abuse red flags and behaviors
• Monitoring and enforcement measures put into place for all school policies
• Information for students that helps them understand what to do if they are abused

Failure to abide by these principles is grounds for penalty.

Suing School Administrators

It is not uncommon to see individual principals, assistant principals, and school administrators called out in Title IX lawsuits. After all, the legal standard for school administrators is outlined in Title IX for immediate action to be taken to eliminate sexual abuse, address its effects, and prevent recurrence. Yet, there are many gray areas within the scope of this legislation pertaining to what is considered “immediate,” as well as what may be considered “reasonable” actions and preventive measures.

Attorneys often call upon education administration and supervision expert witnesses to help answer the question: What would a reasonable person with a similar background, training, education, and work environment have done in that situation? Failure to meet a commonly perceived educational standard constitutes as “negligence,” entitling the Plaintiff to damages. By law, every school district must appoint a Title IX coordinator. If a school district has not, they have not met the legal standard of care.

Suing the Athletic Organization

The February 2018 signing of the Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act of 2017 came after several high-profile sexual abuse cases involving youth sports organizations, including gymnastics and swim. In one incident, a former USA Gymnast filed a lawsuit against USA Gymnastics after she found out her coach had been secretly videotaping her undressing. Investigators found that USA Gymnastics had an internal policy of failing to forward allegations of child sex abuse unless statements were written and signed by both parent and child. They had received at least four warnings about the coach years earlier, including one strongly worded opinion that the coach “should be locked in a cage before someone is raped.” Due to the organization’s lack of action, the coach went on to sexually abuse more gymnasts. Currently, USA Gymnastics faces fire from the more than 250 gymnasts who say they were sexually abused by another one of the organization’s administrators involved with athletics at Michigan State University.

The grounds for suing an athletic organization for sexual abuse are based on assertions that:

• Officials knew or should have known about the sexual abuse
• The Defendants should have taken reasonable steps to prevent harm
• The perpetrator was bestowed a formal and a position of trust, which was abused
• The perpetrator acted as an employee and/or agent of the organization
• The abuse occurred at the organization’s official training facility, where they supervised

How Much Time Do I Have to File a Civil Lawsuit for Sexual Abuse?

With ever-changing state legislation, your deadline for filing a civil lawsuit depends upon when the abuse occurred, among other things. According to Section 340.1 of the Civil Code, “In an action for recovery of damages suffered as a result of childhood sexual abuse, the time for commencement of the action shall be within eight years of the date the Plaintiff attains the age of majority [age 18] or within three years of the date the Plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse, whichever period expires later.”

While there are important exceptions, this generally means that student-athletes who were sexually abused can file a civil lawsuit stemming from the abuse on or before they turn 26, or within three years of discovering the ramifications of the abuse, whichever is later.

Let an Experienced Attorney Fight For You

Figuring out who to take on in a lawsuit can be a daunting task, but you don’t have to go at it alone. Experienced counsel awaits at Lewis & Llewellyn. A confidential consultation puts you under no obligation to file a lawsuit and costs you nothing. Instead, it helps you explore your full set of legal options. We’re not afraid to defend and protect you against entrenched interests. We’ve taken on school districts and organizations—and won.

Athletes entrust coaches and sports organizations with their safety. When this trust is violated, the ramifications can have devastating effects for the abused that last a lifetime.

The attorneys at Lewis & Llewellyn are compelled to devote our professional expertise and resources to ending the epidemic of abuse. We seek to effect real change in the lives of those impacted by abuse, as well as society as a whole, by strategically bringing lawsuits that shine a spotlight on the individuals and entities that condone, cover up, or turn a blind eye to sexual abuse.

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.

According to the U.S. Census Bureau, California has the largest number of elderly residents in the country, making up 13.9% of the state’s population. The California Attorney General’s Office estimates that 200,000 seniors and dependent adults are abused each year.

Many cases of elder sexual abuse often go unreported due to the survivor’s mental state, mistrust of the authorities, or fear of retaliation. Any form of elder abuse or abuse of a dependent adult is illegal in the state of California and punishable by law. Elder abuse is also grounds for pursuing civil litigation against responsible entities such as long-term care facilities or nursing homes.  

What Is the Law Regarding Elder Abuse?

California’s Penal Code, Section 368 specifically defines the crime of elder abuse and outlines particular punishments for those who harm elders (persons 65 years or older) and dependent adults (persons between the ages of 18 and 64, who have physical or mental limitations which restrict their ability to carry out normal activities or to protect their rights). The law acknowledges that special consideration and protection should be extended to elders, “not unlike the special protections provided for minor children,” because elders and dependent adults may be on medication, physically or mentally impaired, or otherwise incompetent to protect themselves, report criminal conduct, or testify in court.

The law states that any person who knows or reasonably should know that a person is an elder or dependent adult and who willfully causes or permits them to suffer, be injured, placed in a situation in which their health is endangered, or inflicts unjustifiable physical pain or mental suffering, is punishable by imprisonment in a county jail for up to one year, by a fine of up to $6,000, or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years.

Punishment increases by three years if a victim under the age of 70 suffers great bodily and by five years if that victim is age 70 or older. If actions by the perpetrator cause death, up to an additional seven years is added to the sentence. Additional fines and imprisonment may be issued depending on the type of perpetrated abuse.   

Does California’s Penal Code 368 Apply to Elder Sexual Abuse?

Though “abuse” is vaguely defined under California Penal Code, Section 368, elder sexual abuse falls under legal definitions of abuse previously defined in the Penal Code as well as other types of abuse, including:

Physical abuse:

• Assault (Section 240)
• Battery (Section 242)
• Assault with a deadly weapon or force (Section 245)
• Unreasonable physical constraint or deprivation of food and water

Sexual assault:

• Sexual battery (Section 243.4)
• Rape (Section 261)
• Rape in concert (Section 264.1)
• Spousal rape (Section 262)
• Incest (Section 285)
• Sodomy (Section 286)
• Sexual penetration (Section 289)
• Lewd or lascivious acts (Section 288)
• Use of medication for punishment

Special Protections and Services for Abused Seniors

The Area Agency on Aging provides protective services for elders endangered by sexual abuse. Every report received must be investigated—immediately for emergencies or within 72 hours for non-emergencies—to determine if the victim requires emergency, priority, or non-priority protection from abuse, neglect, exploitation, or abandonment. The APS works with local police, firefighters, paramedics, nurses, and physicians to provide the necessary care to recover from victimization.

Following their investigation, a written service plan is presented to the victim for their approval. In most cases, the elderly victim must consent to protection services. Protection may also be provided as part of a court order, upon request from the court-appointed caretaker, or implemented by emergency service personnel to prevent imminent risk of serious physical injury or death.

A civil attorney will work closely with Adult Protective Services to remove a victim from harm’s way and provide restraining or protection orders if the case warrants it. Oftentimes, prosecutors won’t pursue a case if the victim is unavailable to testify. However, an experienced civil attorney may be able to overcome this obstacle by presenting evidence to establish mental capacity and providing testimony from treating physicians, expert witnesses, and loved ones who can attest to the harm caused by the alleged incident.

What to Do If You or a Loved One Has Experienced Elder Sexual Abuse

While California’s Penal Code 368 applies to the criminal punishment for perpetrators of elder sexual abuse, victims of elder sexual abuse can also pursue financial compensation in civil court for medical bills, therapy bills, emotional pain and suffering, repayment of stolen or damaged property, repayment for lost investments, transportation or relocation expenses, legal fee repayment, and/or wrongful death benefits related to the abuse.  

Beyond the obvious perpetrator of the abuse, the civil justice system allows for multiple parties to be prosecuted when elder sexual abuse occurs at a long-term care facility. Suing a nursing home, for example, is often a more effective strategy to recover damages, as they have insurance and more funding available to pay than an individual. Even if an arbitration agreement was signed upon admission into a long-term care facility, survivors of elder sexual abuse can still seek justice. It is important institutions be held accountable for enabling elder sexual abuse to remedy the hazardous environment being created and prevent future harm from befalling other elders and dependent adults.

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.

Sexual predators typically abuse positions of authority and trust. In cases of sexual abuse that involve an athletic coach, victims are typically selected and groomed over a long period of time. Instances of sexual abuse by coaches often go unreported for years but that doesn’t mean survivors can’t seek litigation against the coach for sexually abusing them.

If you’re wondering “Can I sue my coach for sexually abusing me,” you will find the answer in this article, along with related questions that may arise in the process of seeking litigation.   

What Are the Legal Duties of a Coach?

An athletic coach has a legal duty—also known as a standard of care—to protect young athletes in their care.

A coach’s duties consist of:

• • Providing a safe sport environment

• • Using total knowledge and skills of instruction and training

• • Using safe and appropriate equipment

• • Planning for short and long-term training programs

• • Properly matching athletes in competitions based on size, skill, and power

• • Sufficiently supervising athlete training and competition

• • Warning athletes and parents of the risks involved in the sport

• • Providing proper medical care, as necessary

• • Taking steps to prevent sexual harassment and discrimination by other athletes or staff

• Reporting suspected or known child abuse to the proper authorities

The most recent legislation clarifies the standard of care for all youth sports organizations. According to the Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act of 2017, all adults authorized to interact with an amateur athlete must report immediately any allegation of child abuse of an amateur athlete who is a minor. Anyone who fails to do so is subject to penalty. The Act also states that the federal statute of limitations is “10 years from the discovery of harm,” rather than “10 years from the date of abuse.”

Can I Sue My Coach for Sexually Abusing Me?

Rarely are sexual predators in positions of authority “grabbers,” people who suddenly sexually assault a student-athlete. Instead, more often, a sexual predator in a position of authority, such as an athletic coach, follows a five-step grooming process. In this process:

1. 1. Special attention is paid to a particular child. Victims are often “elite” athletes, which allow the coach to justify paying extra attention to the child. Sometimes targets are children who are shy loners, depressed, or lack self-confidence.

1. 1. The child is involved in peer-like activities. Coaches may arrange group travel in a private vehicle, invite athletes on shopping trips, attend professional sporting matches with students, host dinner parties with the team, or share hotel rooms during out-of-area competitions. Informal peer-like behavior is typically introduced during this time.

1. 1. The child is desensitized to touch. Most of the legally actionable behavior falls under the inappropriate boundary invasions that begin in stage three. Tickling, rough-housing, and wrestling are common tactics that cross the bridge to more physical contact.

1. 1. Time alone is spent with the child leading up to the abuse. Where other teammates may have once been in their company, the student may find themselves suddenly alone with the coach. Favored athletes are often granted special privileges and urged to keep secrets.

1. Discretion is advised as the coach attempts to make the child feel responsible for what happened. Coaches will try to make the child feel responsible for what happened. They may even threaten the child and make them feel that they will get into trouble if they try to tell someone what happened.

Regardless of whether the sexual abuse was verbal or physical, the coach is held legally responsible. And along with taking legal action against the coach, larger entities that may have played a role in allowing the sexual abuse to take place can also be held responsible.

Currently, the deadline for filing a civil lawsuit depends upon the Plaintiff’s age when the abuse occurred. According to Section 340.1 of the Code of Civil Procedure, “In an action for recovery of damages suffered as a result of childhood sexual abuse, the time for commencement of the action shall be within eight years of the date the Plaintiff attains the age of majority [age 18] or within three years of the date the Plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse, whichever period expires later.”

Should I Contact the District Attorney or a Civil Attorney?

There are two types of legal recourse available to you, and they are not mutually exclusive. You may pursue both avenues if it suits your interests. If your desire is to put your coach behind bars for the crimes committed against you (and possibly others), then you will need to contact your local District Attorney. The DA will review your complaint and decide whether or not to press criminal charges. If criminal charges are pressed, the case will proceed as The State of California vs. the Defendant for the crime of sexual abuse committed. The end result could be jail time, probation, fines paid to the state, and inclusion on a sex offender registry. If the DA rejects your case, you can still file a lawsuit in civil court. In civil court, the judge and at least nine out of the 12 jury members must agree that it’s at least 51% likely the alleged crime was committed, as opposed to convincing all 12 jurors the defendant is guilty beyond a reasonable doubt, as with a criminal case.

To file a lawsuit, you should contact a civil attorney. If successful, a civil lawsuit will result in monetary compensation paid to you for damages caused by the abuse—such as medical bills, therapy costs, loss of employment, and emotional pain and suffering. A win in criminal court can greatly assist your chances of winning in civil court, as the basis for liability has already been established. However, a loss in criminal court does not necessarily bar you from recovering damages as a result of the sexual abuse in civil court.

Let an Experienced Attorney Fight for You

Athletes entrust coaches and sports organizations with their safety. When this trust is violated, the ramifications can have devastating effects for the abused that last a lifetime.

The attorneys at Lewis & Llewellyn find the statistics regarding the prevalence of sexual abuse in youth sports to be profoundly upsetting. As lawyers, we are compelled to devote our professional expertise and resources to ending the epidemic of abuse. We seek to effect real change in the lives of those impacted by abuse, as well as society as a whole, by strategically bringing lawsuits that shine a spotlight on the individuals and entities that condone, cover up, or turn a blind eye to sexual abuse.

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.

When seeking litigation, having to revisit sexual abuse that occurred during college can evoke a wave of emotions. Whether or not it is worth suing a university for sexual assault, even years later, is a factor that each survivor of sexual abuse must determine on their own.

If you are considering taking civil litigation against a university, this article will provide you with information regarding the legal grounds for suing a university, school immunity, who can be held responsible, and what to expect during the litigation process.    

Is It Too Late to Sue a University for Sexual Assault?

Even if years have gone by since the sexual abuse occurred, you may still be able to pursue litigation, depending on the statute of limitations. The statute of limitations is a deadline for pressing criminal charges or filing a civil lawsuit seeking compensation. It’s important to keep in mind that criminal and civil proceedings are treated differently by law and different timelines apply. California’s SB 813 outlines the statute of limitations for pressing criminal charges against a sexual abuser.    

Currently, the deadline for filing a civil lawsuit depends upon your age and when the abuse occurred.

• Are you 26 years old or younger?
  Section 340.1 of the Code of Civil Procedure sets the legal deadline for filing civil charges of child sex abuse to “within 8 years of the date the plaintiff attains the age of majority (age 26) or within 3 years of the date the plaintiff discovers that psychological injury or illness occurring after the age of majority was caused by sexual abuse, whichever occurs later.”
• Did you only discover the injuries you suffered were a result of wrongful sexual abuse within the last three years?
  Section 340.1 of the Code of Civil Procedure also provides for a delayed discovery period of three years. This means that your lawsuit will be timely if it is filed within three years after the date the victim discovers the connection between the injury they have suffered and the abuse itself.  

Even if you think your statute of limitations has expired, a skilled legal team can often find loopholes or exceptions to the general rule that will enable your case to be settled or heard by a jury.

By Law, Sexual Abuse Interferes With Education

Most sexual abuse cases fall under the jurisdiction of Title IX of the Education Amendments of 1972, which prohibits “sexual discrimination” at any institution receiving federal funds—which means most public universities in the United States. The idea is that sexual violence impedes an individual’s fundamental right to education. School administrators and personnel have a legal duty to protect students from sexual abuse, whether it be by staff members, coaches, organizational leadership, or other students on campus.

Under Title IX, schools must:

• Conduct a prompt investigation into any reports of sexual assault or abuse
• Provide survivors with the option to notify law enforcement authorities if desired
• Share allegations of sexual abuse made to faculty members with the Title IX Coordinator
• Take prompt and appropriate policy steps to protect the victim and prevent future sexual abuse

When it can be proven the school knew or should have reasonably known about a harm or injury to a student, they may be deemed as negligent in their duty to provide the standard of care, as described in Title IX.

Over the years, Supreme Court cases have further defined a university’s role in preventing sexual predation. In Franklin v. Gwinnett County Public Schools (1992), the Supreme Court ruled that monetary damages could be awarded to individual victims of sexual harassment under Title IX and that school districts were financially liable for coaches who sexually abused student-athletes. In Davis vs. Monroe County Board of Education (1996), the Supreme Court found that school boards can be liable for student-on-student sexual abuse when the school’s knowledge of the incident is “so severe, pervasive, and objectively offensive that it effectively deprives the student of access to education.”

Government Immunity and California Universities

In cases involving public schools, government immunity can come into play. Government immunity prevents citizens from engaging in costly litigation against government entities. However, in 1963, the California Legislature recognized the need for reform and passed the California Claims Act (CCA). The CCA was intended to provide public entities with sufficient information to investigate a claim, facilitate settlement, enable the public entity to engage in fiscal planning, and discover ways to avoid similar liability in the future.

Government immunity does not protect public schools where gross negligence is at play. Gross negligence is defined as “carelessness to the point of consciously violating another person’s safety.” In some cases, public schools may be sued for negligent hiring, negligent retention, negligent supervision, and failure to report sexual abuse.

When it comes to sexual abuse that occurred at a private college or university, Title IX often cannot be used, as these institutions don’t receive federal funding from the United States government, which therefore has no jurisdiction over how they conduct business. This is not to say that private institutions are above the law. If you suffered sexual abuse at one of California’s private institutions, you can still pursue claims under grounds such as:

• Breach of contract
• Negligence
• Statutory civil sexual harassment
• Negligent supervision, hiring, and retention

A California attorney with experience in sexual abuse civil litigation knows how to handle these types of cases. Fortunately, the courts in California are some of the most progressive in the nation on the topic of campus sexual abuse.

The Process of Suing a University for Sexual Abuse Years Later

Your journey through the litigation process will likely begin with a confidential consultation with a civil firm. During this time, the statute of limitations for your case will be calculated. The cost of an initial consultation with an attorney varies from firm to firm. A reputable law firm will not charge you upfront for this expense, but may bill you later if they secure compensation on your behalf.

There are seven stages of working with a civil attorney for a sexual abuse case in California; they include:

1. Case Evaluation
2. Early Investigation
3. Initiating Negotiations
4. Filing a Legal Complaint
5. Discovery
6. Pre-trial Resolution
7. Trial

Most civil lawsuits against universities cast as broad a net as possible. The abuser, the university itself, and anyone who knew of the sexual abuse, but failed to act can be implicated in a lawsuit.

Work With an Experienced Attorney

If you’ve decided to pursue litigation against a university, an experienced legal representative can act as your advocate, providing counsel and empowering control over the course of the proceedings.

Working with a California attorney who specializes in sexual abuse cases is about more than legal advice and paperwork. Lawyers can also point you in the right direction for seeking medical attention, connecting with crisis social workers and counselors, dealing with insurance issues, and getting your life back in the wake of disturbing events that were beyond your control. 

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.

According to a review of child sexual abuse prevalence studies conducted by non-profit organization Darkness To Light, approximately one in 10 children will be sexually abused before their 18th birthday, with a median age of nine. Sexual predators abuse positions of authority and trust in order to “groom” their victims. Most sexual abuse survivors suffer the abuse at the hands of someone they know, often a trusted adult such as a coach, teacher, or sports mentor.

What Is the Standard of Care in Youth Sports?

You may be wondering what the law says about who is responsible for child sexual abuse in sports—is it the coach, or can the entire organization be held responsible? New federal legislation protecting young victims from sexual abuse in sports was signed by President Trump in February 2018 to clarify what is expected of youth sports organizations in the United States. The Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act of 2017 (S. 537) amends the Victims of Child Abuse Act of 1990 and the Amateur Sports Act of 1978.

This legislation clarifies the standard of care for all youth sports organizations. According to the Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act of 2017, all adults authorized to interact with an amateur athlete must report immediately any allegation of child abuse of an amateur athlete who is a minor. Anyone who fails to do so is subject to penalty. The Act also states that the federal statute of limitations is “10 years from the discovery of harm,” rather than “10 years from the date of abuse.”  

Who Can You Sue in a Civil Lawsuit Involving Sexual Abuse in Youth Sports?

Civil proceedings allow you to hold different entities responsible for the role they played in tolerating abuse:

• The coach: Laws prohibit adults in positions of trust and authority from sexual harassment and abuse of young athletes in their care. The spectrum of behavior you may litigate as sexual abuse covers everything from sexual jokes, discussions of a sexual nature, and innuendo, to voyeurism, exhibitionism, and sharing pornographic material, to physical assault.

Sexual predators generally fall into two categories: grabbers or groomers. Grabbers seize a perceived opportunity to commit a sudden inappropriate action. However, most cases of sexual abuse in youth sports involve a slow strategy of grooming victims by finding a seemingly vulnerable child, involving the child in peer activities, increasing boundary invasions to desensitize the child to touch, spending alone time with the child, urging secrecy, and finally, making the child feel responsible for the sexual misconduct. Both types of predator can be penalized for these behaviors.        

• The sports organization: Sports organizations may be charged with failing to recognize and report grooming behaviors to law enforcement, failing to formally address complaints, failing to take corrective action against known abusers, or failing to screen staff member backgrounds before hiring. According to one recreation insurance company, about 9% of applicants will be red-flagged with criminal histories uncovered by the background check, and another 5% of applicants can be disqualified based on commonly used criteria.

Responsible organizations should have a statement that defines and prohibits all forms of child abuse. They should have policies in place to reduce risk and procedures to investigate complaints.

• The school district: School districts are liable for investigating complaints and taking steps to prevent child sex abuse. Recently, four students at a high school in La Palma sued their school district, accusing administrators of ignoring signs that two polo coaches were sexually abusing the girls they trained. The lawsuit further alleges the district and water polo officials concealed the abuse from the police and the victims’ parents.  

How Much Time Do I Have to File a Civil Lawsuit for Emotional and Physical Abuse in Youth Sports?

With ever-changing state legislation, your deadline for filing a civil lawsuit depends upon when the abuse occurred, among other things. According to Section 340.1 of the Civil Code, “In an action for recovery of damages suffered as a result of childhood sexual abuse, the time for commencement of the action shall be within eight years of the date the Plaintiff attains the age of majority [age 18] or within three years of the date the Plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse, whichever period expires later.”

While there are important exceptions, this generally means that a victim of childhood sexual abuse can file a civil lawsuit stemming from the abuse on or before the victim turns 26, or within three years of discovering the ramifications of the abuse, whichever is later.  

What Evidence Do You Need to Sue for Emotional and Sexual Abuse in Youth Sports?

In civil court, it must be proven that every element of the cause of action “more likely than not” occurred. These elements include the occurrence of abuse by the perpetrator, the harm caused to the Plaintiff, and the liability of all parties listed in the suit. Child sex abuse can be very difficult to prove, as there are often no third-party witnesses and no documented physical injuries. In such cases, child witness testimony (either in-court or out-of-court, taken in interviews and depositions) may be the only evidence.  

Other evidence that could potentially be used includes:

• Eyewitness accounts of people who directly witnessed grooming or abuse
• Accounts of individuals to whom the offender spoke to about the abuse
• Accounts of other victims abused by the same Defendant
• Police reports and information obtained from a parallel criminal investigation
• Documented medical evidence, physical examination results, and rape kits
• Expert witnesses like doctors, therapists, social workers, and psychologists

Obtain a Recovery With the Help of an Experienced Attorney

Parents entrust coaches and youth sports organizations with the safety of their children. When this trust is violated, the ramifications can have devastating effects for the abused that last a lifetime.

As parents of young children themselves, the attorneys at Lewis & Llewellyn find the statistics regarding the prevalence of sexual abuse to be profoundly upsetting. As lawyers, we are compelled to devote our professional expertise and resources to ending the epidemic of child sexual abuse. We seek to effect real change in the lives of those impacted by abuse, as well as society as a whole, by strategically bringing lawsuits that shine a spotlight on the individuals and entities that condone, cover up, or turn a blind eye to sexual abuse.

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.

The concern over last year’s new rule regarding binding arbitration is still very much a topic of discussion; particularly for those with loved ones in long-term care facilities. TIME magazine tells the story of an 87-year-old woman with dementia who was sexually abused during her stay at a nursing home near Birmingham, Alabama. After a criminal investigation failed to produce enough evidence to identify a suspect in the alleged attack, the woman’s family tried to file a civil suit against the nursing home, alleging everything from negligence to outrageous conduct. They felt there was plenty of evidence to back up those charges. But none of it would see the light of day in a courtroom.

When the woman first came to the nursing home, she signed the facility’s standard admissions contract. Buried in pages of terms and conditions was what is known as a pre-dispute binding arbitration agreement. By signing it, the woman gave up her Seventh Amendment right to trial by jury and any right to bring a civil suit against the facility for any reason and at any time in the future.

According to the article, roughly half the 2.5 million Americans in nursing homes are likely bound by arbitration agreements in their admissions contracts.

What Is the Trump Administration’s Position on Binding Arbitration Agreements in Nursing Homes?

Frequently, prospective nursing home residents are handed a stack of papers to sign before they are admitted. Among these papers is usually a binding arbitration agreement that states they will go to arbitration instead of suing if something goes wrong.

Here is a timeline of recent updates to the federal policy on binding arbitrations:

• In November 2016, the Obama administration issued a regulation prohibiting nursing facilities from forcing residents to sign pre-dispute binding arbitration agreements.

• The nursing home industry challenged the rule in federal court and delayed enforcement until July 2017.

• In June 2017, the Trump administration announced they would be “indefinitely” postponing the rule enactment schedule for the following month, and had negotiated an alternate rule.

• As of January 2018, class action waivers are banned and arbitration agreements are allowed in any long-term care facility that accepts Medicaid or Medicare, as long as the contract clauses are written in “plain language.”    

What Is Arbitration?

Arbitration was designed as a streamlined, cost-effective method of resolving legal disputes as opposed to filing a lawsuit and going to court. Arbitrations begin with a notice of intent, followed by a response, the selection of arbitrators, and then the hearing itself. Similar to courtroom proceedings, evidence will be presented, arguments made, and witnesses called; though, there are limitations that expedite the dealings. For instance, depending on the arbitration and the organization overseeing it, there may be less motion practice and less discovery before the arbitration hearing. Additionally, the ultimate decision of the arbitrator may not be susceptible to challenge by appealing to a higher court or tribunal.  

Unlike court cases, arbitration is typically not a matter of public record. This can be a favorable difference if you are a plaintiff who wishes to remain anonymous. Rather than having your case heard by a judge or jury in open court, arbitration hearings occur before a private arbitrator who abides by a different set of rules than civil courts. One of those rules being the selection of the arbitrator.

For example, in a case that goes to court, neither party generally has any input with regard to who the judge will be. However, with an arbitration, the parties often have some input into who will end up being their arbitrator. Both parties may be allowed to select from a pool of arbitrators or eliminate choices from provided options. Arbitrators can also be required to be experts in the field or industry involved in a dispute, whereas a judge may or may not have such expertise

The Pros and Cons of Arbitration in Cases of Sexual Abuse

A number of state attorney generals, state senators, and groups (like the AARP and the American Association for Justice) who oppose nursing home arbitration clauses worry that the new rule will lead to less transparency and accountability. They argue that nursing home residents will have to pay their lawyer’s (and a share of the arbitrator’s) fees out-of-pocket. Studies show that awards to Plaintiffs can be up to 35 percent lower in arbitration. Plaintiffs may also have to travel further to attend arbitration proceedings and will likely have a harder time appealing unfavorable results.

While arbitration can be an uphill battle, there are also a few benefits of going into arbitration:

• Simpler procedures
• Faster processing time
• Protection of your identity
• Lower total case costs (generally speaking)

Working with an attorney who has substantial experience representing clients in arbitration is key. Arbitration is not a bar to recovery. In fact, arbitration shouldn’t hinder an experienced attorney’s ability to negotiate the reimbursement of lawyer and arbitration fees as part of the Plaintiff’s final award.

Are Arbitration Agreements Enforceable in California?

Hiring a knowledgeable attorney will help you determine whether an arbitration agreement you’ve signed is enforceable. Article VI of the Constitution, also known as “The Supremacy Clause,” states that, in a dispute, federal law takes precedence over state law. Based on this statement, a signed nursing home agreement could potentially favor the nursing home facility.

However, the State of California has a longstanding history of ruling favorably in challenges to the Federal Arbitration Act. Under California law, nursing home contracts must be procedurally and substantively “conscionable”—supported by consideration and absent of fraud.

Procedural factors pertain to the circumstances during which the contract was signed. For instance, a contract could be deemed “procedurally unconscionable” if your loved one signed the contract while on mind-altering medications. The courts look unfavorably on stronger parties taking advantage of weaker parties in the drafting of terms. “Take it or leave it” contracts that do not allow signees to opt out later are also unfavorably by the courts in many cases.

Substantive factors focus on the terms of the agreement and whether they are so one-sided that they shake the conscience. One example would be a contract that limits damage recovery, requires arbitration hearings prohibitively far from the resident’s home, or mandates that one side pay upfront for all costs related to arbitration.

In the August 2000 case Armendariz vs. Foundation Health Psychcare Services Inc., the California Supreme Court ruled that arbitration agreements must: 1) require neutral arbitrators; 2) allow for more than minimal discovery; 3) result in a written decision by the arbitrator; 4) allow for all types of relief available in court; and 5) not require parties to pay unreasonable costs.   

How to Avoid Nursing Home Clauses That Trample Your Rights

If you’re in the early stages of finding a nursing home for your loved one that will allow the pursuance of all legal remedies if necessary, you can:

• Hire an attorney to review the paperwork before you sign.
• Cross out and withhold surrogate authority.
• Consider different facilities that are privately funded or offer non-binding agreements.

If you have signed a nursing home arbitration agreement within the past 30 days, you may also send a rescission letter via certified mail. If it has been more than 30 days, you will need to prove that the contract in some way violates California’s Health and Safety Code Section 1599.81(a).

Binding Arbitration Agreements Are Not Dead-Ends

The civil attorneys at Lewis & Llewellyn have ample experience in identifying legal solutions for individuals who have signed pre-dispute binding arbitration agreements during the nursing home admissions process. Our firm is equipped to help you fight, even if your case involves a previously signed agreement. There is always hope for justice to prevail when you work with an experienced legal team.

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.

As a survivor of sexual abuse, there are several paths you may choose to take in your pursuit of justice and healing. One path might be to file a civil proceeding and another could be to press criminal charges. Thankfully, you don’t have to choose one over the other. You can press criminal charges and file a civil proceeding for the same crime—either separately or simultaneously.

Here you’ll learn about the differences between civil proceedings and criminal cases; the advantages of timing your legal actions in different ways; reasons why it’s worth pursuing the civil claim even if a related criminal case ends short of a plea or conviction; and how filing a civil suit for sexual abuse can empower you while the criminal case is still pending.

What Are the Differences Between Civil and Criminal Litigation?

Criminal law deals with behavior that is a danger to society, with consequences that may include jail time, fines to be paid to the government, and inclusion on the National Sex Offender Registry. The State Attorney General runs the proceedings and seeks to establish the Defendant’s guilt “beyond a reasonable doubt.”

On the other hand, civil law deals with negligent or wrongful behavior that may lead to personal injury, with compensation awarded to the survivor for losses suffered. Another difference to note: beyond the obvious perpetrator of the abuse, the civil justice system allows for multiple parties to be prosecuted. This allows for a school district to be held legally responsible for the actions of a school employee, for example.  

Why Might You Run Concurrent Civil and Criminal Proceedings?

It is not uncommon to have criminal cases pending alongside tort lawsuits. Filing a civil proceeding while the criminal proceedings are underway may:  

• Increase your odds of winning a criminal case: If prosecutors are on the fence over whether to bring charges against the Defendant, the act of filing a civil motion can add to the validity of the claim and cause prosecutors to take a closer look at the case.
• Increase the odds of a guilty verdict: Civil proceedings can call upon the Defendant as a witness to hear the other side of the story. This may make the defense counsel nervous because their client may inadvertently incriminate him or herself by answering questions. Documents and evidence disclosed in discovery can make it to a criminal trial and be admitted as evidence before the jury, thus strengthening the chances the Defendant will be found guilty.
• Expedite the resolution: If the Defendant waived the right to a speedy trial, criminal proceedings can last for a while. Civil proceedings aren’t always quickly resolved, either. Having both running concurrently could potentially resolve the whole ordeal faster.

If My Criminal Case Lost, Can I Still Pursue a Civil Case?

The short answer is: yes. According to a White House report, thousands of sexual assault cases are abandoned each year because “law enforcement and prosecutors are not fully trained on the nature of these crimes or how best to investigate and prosecute them.” Rape and sexual assault are notoriously difficult to prove “beyond a reasonable doubt” because of the cultural assumptions surrounding this type of crime.

The Kobe Bryant rape case is one example of a case that failed in criminal court but prevailed in civil court. Though the felony sexual assault charge was dropped because the accuser decided not to testify, Bryant subsequently settled the civil suit outside of court by paying a confidential sum. The resolution came less than a week after Bryant was scheduled to give a deposition to the accuser’s attorneys in Orange County and six months after the felony sexual assault charge against him was dropped.  

District Attorneys don’t always agree to prosecute. This rejection can be a huge let-down for survivors of sexual assault, but fortunately, the civil courts still allow some measure of justice. For this reason, it is also very common for victims to file a civil proceeding after losing a criminal case. It’s worth seeking monetary compensation, particularly if you have missed work or leave a job due to depression, anxiety, or the abuse suffered.

Explore Your Legal Options in the Aftermath of Sexual Abuse

There are many benefits to pursuing a civil case while a criminal case is still pending. The civil attorneys at Lewis & Llewellyn are always prepared to fight hard for your case. We have the experienced litigators, knowledge of the law, and the resources necessary to take on your case and win.

We are here to listen to you whenever you’re ready, whether it’s days after the abuse occurred or many years later, whether you’ve pressed criminal charges or not. Speaking with us may open the door to the justice you deserve.

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.