An article based on Connecticut law, by Chester Fairlie, Attorney
There are some adult survivors of childhood sexual abuse who could successfully bring claims to recover money damages from the persons who caused them harm. This article is intended to be a general guide for persons who might consider bringing such claims.
A recent case illustrates many of the legal and therapeutic aspects which arise when an adult survivor considers commencing a suit against someone who abused them when they were young. A woman in her early thirties had been gravely troubled for many years with a history of depression, acute anxiety and self-destructive behavior. In 1990, she began to experience fragmented memories of abusive acts performed upon her by an older man who had been a friend of her parents. The memories of the abusive acts seemed very real and were very disturbing. The woman was much troubled and she struggled with the help of her therapist to clarify the details of the memories. Through the therapeutic process, the woman recalled the presence of a young friend of hers as part of the memories. The young woman called her friend to discuss her memories. She and the friend then discussed, for the first time, that they had each, for many years, suffered from very similar psychological difficulties. The friend recalled that the same older man had abused both of the women on multiple occasions when they were children. The friend stated that she had always recalled the events and that her memory of the acts by the older man had always remained clear.
The two women then consulted an attorney who advised that the time period in which a civil claim could be brought in Connecticut against the older man had recently been extended. The women brought a civil lawsuit against the abuser seeking compensation for the psychological and emotional harms which he had caused to each of them. The claims were successful.
In civil cases the injured person commences a case through an Attorney whom they may select. Civil cases seek financial compensation for the physical, emotional and psychological harms done to the person by the acts of the abuser. A person seeking recovery in a civil action may claim damages for medical care and therapeutic care and may also claim damages for the impairment of their capacity to carry on their life. The standard of proof required to win a civil claim is proof by a fair preponderance of the evidence, which is a less rigorous standard than is required in a criminal case. If a civil action is successful, an abuser can be ordered by the Court to pay money damages to the person harmed. If the abuser has assets from which the Court-ordered damages can be collected, money can be recovered to compensate for the harms that were caused.
In addition to seeking compensation for the harms that were done, there are other ways civil litigation can be helpful to recovery. The person bringing a claim may feel a sense of empowerment by using the legal system to prove the claim against an abuser. Bringing a claim can also develop a sense of closure by showing that the abuser did in fact cause the harms which have troubled the abused person's life.
There are several elements that can contribute to a successful civil claim. The elements include the evidence to prove the occurrence of the sexual abuse, evidence to prove the emotional and psychological harms that were caused, and assets available to an abuser from which the judgment of the Court could be collected.
In some cases there is evidence which can support a client's memory of the abuse. In my practice, I have investigated cases in which a brother, sister, or friend was abused at the same time, or in which another young person accidentally discovered the things that were happening. In one case, a brother opened a barn door and saw what was happening to his younger sister. Fifteen years late he became in important witness on her behalf. Other evidence could also include confessions of the abuser who may have talked to other family members or to other adults. Sometimes the abuser might feel safe after the time for criminal prosecution has passed and they might talk of what happened. That type of testimony can be used to support a civil claim.
There are decisions by Courts and Legislatures which establish the Statute of Limitations, which is the time period during which civil claims must be brought. The Statute indicates that if claims are not brought within certain periods of time, that they would be barred as a matter of law. In May of 2002, the Connecticut Legislature passed an extended Statute which established that for claims based upon personal injury caused by sexual assault, sexual abuse, or sexual exploitation of a minor the victim could bring a claim until thirty years past his or her age of majority. Since the age of majority is defined to be eighteen, the effect of the Statute is that claims can be brought by a person in Connecticut until he or she reaches the age of 48.
Civil litigation requires that a person be sufficiently strong in their recovery process. One reason is that if litigation is undertaken there will be a degree of loss of privacy. In the therapeutic environment, psychiatrists, psychologists and therapists are bound by ethics of their profession to keep communications confidential. In litigation, Courts have said that when someone presents a claim to the Courts saying that they have suffered psychological or emotional harm by bringing a suit, they have chosen to place consideration of these matters before the Court. Therefore, their psychological and therapeutic history can become disclosed to be analyzed as part of the litigation. The litigation process also includes discussion of the abusive acts with an attorney and perhaps with the members of the attorney's staff. The litigation process may include the answering of written questions known as Interrogatories and may include the answering of questions at trial proceedings. Sometimes those procedures may activate memories and or may trigger flashbacks, depression, or anxieties. For those reasons, it is highly recommended that a person who considers litigation discuss with both their Attorney and with their therapist whether they are ready and able to undertake the litigation process.
There are many steps which attorneys can use to help protect the privacy interest of their clients in civil litigation. These steps could include securing Court Authorization for the client to proceed under a fictitious name, or securing Court Authorization that a file be sealed of that its contents be barred from disclosure to newspaper reporters or to members of the public.
There has developed increased understanding of the harms caused by childhood abuse. New laws and Court decisions in Connecticut have increased the legal recourse available to victims. Attorneys have developed more devices to help protect privacy interests of victims and to protect the emotional health of their clients. These changes have helped to create an environment in which survivors of abuse are more able to assert their rights against those who have caused them harm.