Applying commercial litigation principles to the evaluation of civil sexual abuse claims.

• Author: Ward, Thomas S.

One out of every six women in Florida has been raped at some point in their lives, and one out of every five men has been victimized by some form of sexual violence other than rape. (1) These statistics are sobering to say the least.

While a sexual abuse (2) victim (3) can report the abuse, the decision to criminally charge and prosecute the abuser is solely within the discretion of the state or county's prosecuting attorney. (4) Moreover, even if the alleged abuser is prosecuted and convicted, the criminal justice system's ability to compensate the abused is limited (5) and is subject to the discretion of the criminal judge. (6) This is because "[u]nlike a civil claim for damages, the purpose of restitution" is not only "to compensate the victim," but also "to serve the rehabilitative, deterrent, and retributive goals of the criminal justice system," and the latter consideration is within the exclusive purview of the judiciary. (7) Accordingly, sexual abuse victims who are not fully compensated via restitution are left to decide whether to rehash the horrifying details of their abuse in civil court (8) in hopes of being compensated there. (9)

This life-changing decision should be made in much the same way parties to a failed commercial transaction decide whether a civil suit is an economically feasible response to a mortgage default or a contract breach. Specifically, the decision should be based largely on the probability of obtaining a collectable judgment. A lawyer can help a sexual abuse victim in this regard by gathering information about and examining the seven potential obstacles to civil recovery discussed in this article.

On the surface, it may seem callous or simplistic to reduce what may be the most traumatic event in the victim's life to this sterile analysis. An attorney who conducts such an evaluation, however, demonstrates more compassion and provides more value to the victim than an attorney who submits to a victim's emotional demand to file suit. As the process of litigating a sexual abuse suit necessarily exposes the victim to a great deal of stress, it would be cruel to subject a victim to those stresses without first ascertaining whether there is a reasonable possibility of obtaining a collectable judgment.

Obstacle One: Lack of Evidence to Establish Civil Liability

The lawyer's evaluation of a potential civil suit necessarily involves identifying not only who can, but who should be sued. The abuser is obviously a potential defendant. So too, under the right circumstances, are the abuser's supervisor, employer, and employer's board of directors. (10) But the process of whittling potential defendants down to actual defendants is often dictated by the amount and quality of evidence available. A dearth of evidence can be an obstacle to obtaining a collectable judgment because, quite simply, a claim without evidence to support it is worthless. Therefore, the lawyer should conduct a presuit investigation to determine what evidence is available and how it affects who can be sued and under what legal theories.

The investigation should include everything from visiting the scene of the abuse to reviewing potential defendants' and witnesses' social media sites to requesting police reports, medical records, and surveillance videos. The investigation should critically analyze the victim's version of the facts to determine whether it is corroborated by the available evidence.

In sum, the investigation must be thorough enough to ensure the suit is not frivolous, in which case the consequences can range from disciplinary action from The Florida Bar (11) to court-awarded sanctions against both the lawyer and his or her client. (12) But the lawyer must also tread lightly because discussing the abuse with the abuser's family, employers, or customers may expose the lawyer and his or her client to claims for defamation or tortious interference with the abuser's business should a court later rule that no abuse occurred. While the attorney may be able to rely on the litigation privilege to provide legal immunity for communications that occur after the suit is filed, (13) the privilege does not apply to statements that "do not have any functional tie to a judicial proceeding," such as those made during a press conference or on a website. (14)

Finally, preservation letters should be sent to all potential defendants and witnesses. The "intentional destruction, mutilation, alteration, or concealment of evidence" constitutes "spoliation." (15) If a victim cannot prove his or her case because the critical evidence is unavailable due to spoliation, then the court is authorized to impose a wide variety of sanctions ranging from the imposition of an adverse inference (16) to entering a default on the issue of liability. (17) "Spoliation is established by proving (i) the evidence existed at one time, (ii) the alleged spoliator had a duty to preserve the evidence, and (iii) the evidence was crucial to the movant's prima facie case or defense." (18) Therefore, preservation letters are critical because they ensure that the duty to preserve has been triggered. (19)

Obstacle Two: Lack of Evidence to Seek Punitive Damages

Once punitive damages are in play, the dynamics of a lawsuit can shift rapidly. The desire to avoid the liability and negative press associated with being on the wrong end of a punitive damage award is often sufficient motivation for a previously defiant defendant to commence settlement discussions. Thus, a significant part of the presuit analysis is determining whether evidence exists that could persuade the court to grant a punitive damage amendment.

Punitive damages cannot be awarded unless demanded in the complaint, and they cannot be demanded without permission from the court. (20) A sexual abuse victim can obtain this permission by making a reasonable showing via evidence in the record or by proffer that he or she will be able to establish that the abuser is "personally guilty of intentional misconduct or gross negligence," (21) where the terms "intentional misconduct" and "gross negligence" are statutorily defined. (22) If punitive damages are sought against the abuser's employer, then the victim must also show that the employer "(1) actively and knowingly participated in the conduct; (2) knowingly condoned or ratified the conduct; or (3) by its gross negligence, contributed to the [victim's] damages." (23) Once pleaded, the victim's entitlement to punitive damages must be established by "clear and convincing evidence" and the amount must be established by "the greater weight of the evidence." (24)

A creative attorney can find evidence to support these heavy evidentiary burdens anywhere. Some avenues worth exploring include the abuser's social media account (e.g., bragging), text messages from the abuser to the victim (e.g., threatening to continue the abuse or to harm the victim if he or she attempts to report the abuse), and online articles addressing past abuse involving the abuser (e.g., demonstrating the officers and directors knew or should have known about the abuser's past behavior). The victim's legal costs can be minimized by printing or otherwise preserving this information before the abuser deletes it, thus, eliminating the time and expense of having to subpoena the social media site operator or telephone carrier later.

Obstacle Three: Related Criminal Proceedings

The existence and status of any criminal prosecution stemming from the abuse can also be an obstacle to obtaining a collectable judgment. Specifically, if the abuser or any other potential defendant or witness has not been criminally prosecuted or if the prosecution is ongoing, then they will likely invoke their Fifth Amendment right not to testify against themselves during the civil suit. The Fifth Amendment permits a person to refuse to answer questions that may constitute a link in a chain of...