Child sexual abuse, also referred to as child molestation, happens to millions of children, boys and girls alike, Sexual abusers look like everyone else. They coach, teach, operate day care centers, act as youth pastors, and serve as leaders in youth organizations like the Boy Scouts of America. In fact, no one “looks” like a sexual predator. As a result, children can fall victim to people who look and seem trustworthy and credible. Unfortunately, it is highly likely that the perpetrator is someone you and your child know well.
Home is supposed to be a place of security for children. Unfortunately, this is not always the case. Sexual abuse is an all-too-common reality for many children across the country.
Here are some startling statistics about sexual abuse in the home or other residence:
- 84% of sexual victimization of children under the age of 12 occurs in a residence. Even older children, ages 12-17, are victimized at a high frequency;
- Most abuse occurs at 8:00 a.m., noon and between the hours of 3:00-4:00 p.m. Older children are more likely to be abused in the late evening hours;
- 1 in 7 incidents are perpetrated by juveniles on school days in the after-school hours between 3:00-7:00 p.m. Most of these incidents occur in the hour or so immediately following school hours.
Survivors Have Rights Too!
Now add in the phenomenon of a global pandemic. Many schools are closed. Parents are home from work. The tension and the opportunities for abuse are substantially increased. Strangely, reports of sexual abuse are down nearly 40% in each state from a corresponding reporting period from 2019. Why? Most experts believe there has been a decrease in reporting, rather than a decrease in acts of abuse. A rise in unemployment and economic stresses increase the risk and the opportunity for abuse of children. There have been alarming anecdotal accounts from hotlines and emergency rooms, but the reports are in decline. Most reports of abuse come from adults, such as teachers. With decreasing contacts with potential reporting adults, reports are down. Most experts fear the incidents themselves are on the rise.
The Incest Survivors Resource Network states that “the erotic use of a child, whether physically or emotionally, is sexual exploitation in the fullest meaning of the term, even if no bodily contact is ever made.” It’s important to notice this clause about “no sexual contact.” Often, victims of sexual abuse will try to downplay their experience by saying that it “wasn’t that bad.” It’s vital to recognize that abuse comes in many shapes, colors, and sizes—and that all abuse is bad.
What you should know about making a claim for recovery of money:
In most cases, any financial recovery for sexual abuse survivors comes in the form of insurance money. While many clients inquire as to their ability to attach to personal assets of the perpetrator or other responsible individuals, it is commonly the situation that those persons do not have assets (i.e., money), or that any assets cannot be accessed due to protections from legal shields, i.e., a trust.
While proving the acts of abuse and damages suffered by the victim presents its own challenges, one of the greatest challenges is finding insurance coverage that will compensate a survivor of abuse. Most homeowner’s policies include one, or a combination of two barriers, to coverage:
- Either coverage is offered at a lesser amount than the limits that apply to other events (e.g., a dangerous condition on the property); or
- An exclusion in the policy precludes coverage altogether (i.e., “losses arising from intentional or sexual acts committed by an insured”)
An insurance policy is little more than a contract. The insured homeowner pays a premium for coverage on certain types of risks. The policy outlines the scope of the insurance company’s duty to pay. While few of us read or understand the full content of our respective insurance policies, many things we may think are covered are limited by the contract of insurance. So, while someone may think his homeowner’s policy protects him from $100,000-worth of negligent acts, the policy may take away some of the covered events.
Exclusions exist in virtually all policies of insurance. In the simplest sense, they reduce or eliminate coverage for certain types of claims.
A common exclusion is what is commonly called, “The Intentional Acts Exclusion.” This exclusion either limits or eliminates coverage for acts of the insured that are expected or intended to cause injury. In most states, this exclusion has been upheld in contested cases when someone claimed the insurance policy covered acts of sexual abuse or molestation.
Attorneys representing victims of abuse have claimed that the homeowner mistakenly committed abuse or that he/she did not intend the adverse, damaging consequences to the victim. Courts have looked beyond such allegations and have characterized the act of sexual abuse or molestation as inherently intentional or that one cannot deny the natural consequences of such acts to cause personal injury.
Certainly, we all recognize the life-long consequences, such as post-traumatic stress disorder, from which survivors of abuse suffer. Courts have correspondingly recognized the undeniable consequences of sexual predation as it relates to insurance coverage. In short, many courts have determined under the inferred-intent rule that abuse is an intentional act, not a negligent act.
Consequently, an attorney who handles cases for survivors must be experienced in both the underlying cases, and in finding coverage under an insurance policy that will properly compensate a survivor if the case is won.
Negligent Supervision of Children
While claims against the perpetrator only may be a dead end for recovery, claims against other persons in the household who knew, or should have known, that abuse was occurring, but failed to intervene may be a road to recovery under a theory of negligent supervision.
The basis of the negligent supervision theory is the “concurrent proximate cause rule”. Our courts have explained that under this rule an insurance policy will provide coverage where sexual abuse was caused by two events, even if one of the events was subject to an exclusionary clause (i.e., intentional acts or sexual abuse exclusion) if the differing allegations of causation are independent and distinct.
In other words, in cases where a member of the household, other than the perpetrator, had a duty to protect and supervise the minor children in the home even before there was suspicion of inappropriate contact, it is likely that an injured person may prevail on a claim of negligent supervision.
Belinda’s grandparents love having her over for the weekend. Grandpa Joe has a history of sexual abuse. Ten years ago, he had charges filed against him for fondling a 10-year old neighbor girl. The facts were a little disputed, and Joe took a plea. Unknown to Belinda’s parents, Grandpa Joe is a registered sex-offender, and Grandma Nancy, while aware of the past charges, after 25 years of marriage, decided to stay with Joe. It was a tough time, but he claims the incident was isolated and will never happen again. As far as she knows, it hasn’t, until now. Nancy went shopping on Saturday, and Belinda, age 11, was left with Grandpa. He convinced her she needed to shower, and stepped into the shower with her, whereupon he fondled her as he “washed” her private areas. Belinda returned home on Sunday evening and told her parents, including her mother Samantha, Joe’s daughter.
At Monsees & Mayer, we are experienced in both aspects of litigating a sexual abuse case that ultimately compensates the survivor. We know how to win, and we know how to collect a settlement or judgment against the insurance company. Here are a few of our successes for our clients:
- $8,000,000 – for a young girl who was sexually abused at an apartment complex
- $400,000 – for grandchildren abused in the home by a surrogate grandfather
Frequently, both the perpetrator and the survivor want confidentiality for the results of a case, and for survivors, perhaps for the claim itself. We strive to achieve what is best for our clients.
Is there an environment where we least expect sexual predation? Our spiritual well-being is habitually placed in the hands of churches, pastors, ministers, rabbi’s, imams and priests. They are entrusted with our souls and guidance on our morality and ethics. When such trust crosses the line into sexual abuse, especially when involving our children, what can be done? The incidence of sexual abuse committed by religious figures and the organizations with which they are either employed or associated is staggering.
Sexual abuse by faith leaders first came to prominent attention during what is now the decades-old inquiries into the Catholic church. However, studies confirm that Catholic priests are far from the only perpetrators. While the vast majority of men and women of faith provide the best of spiritual and moral guidance, the trust inherent in their relationships with parishioners, members of their congregations, synagogues and mosques can cause some of the most devastating acts of abuse.
Recently, it was reported that 3,700 Catholic priests abused a total of nearly 16,000 victims. More startling, Christian protestant congregations are the most prevalent and frequently attended religious institutions in the United States. There are approximately 300,000 Christian protestant congregations in the U.S. and they represent a membership base of about 60 million. Yet, there is little research addressing any incidence of sexual abuse in the Protestant Christian community.
How Abuse by Religious Leaders is Becoming More Prevalent
All religious leaders have three powers to commit abuse: 1) access throughout the physical church and access to victims; 2) little surveillance or oversight by others; and 3) access to personal knowledge regarding congregants, including children (e.g., broken homes, sexual misconduct). Almost all clergy offenders are male. Moreover, most perpetrators can be found in sexually repressive denominations and faiths. Compellingly, the vast majority of victims are also male; usually between the ages of 11 and 14. The overwhelming majority of offenses included some sexual contact (e.g., sexual intercourse, groping), although non-contact incidents are also abusive (e.g., child pornography).
Many cases of abuse take place in a private residence or setting. This may present legal hurdles in making the religious organization legally responsible for the acts of members of the clergy. Cases involving abuse that happens on the physical grounds of the church enjoy a somewhat enhanced chance of success. No clergyman is authorized to engage in sexual abuse, so a religious organization needs some level of knowledge or notice that such acts are taking place. Id. When the offenses are committed within the church itself, arguably someone failed in any obligation to be vigilant.
A church may be responsible if it hires or retains a clergyman in a position of faith after it knows, or had substantial reason to know, that abuse was taking place or had taken place at some prior time. This may take the form of a church employing a pastor when it should have known of a history of abusive acts. A church may even be responsible for the acts of a volunteer at the church, if the circumstances otherwise provide some notice to the church organization that the abuse is imminent or that it is taking place. In one case handled by Monsees & Mayer, shockingly, the pastor of a church hired a known sex offender to serve as the congregation’s youth pastor.
Amanda, a church-going teenager, accompanies her mother to church for a youth meeting. While at the church and while separated from her mother, the young lady is taken into the church janitorial closet and fondled by Bill, the youth minister. The youth minister has always been kind, funny and attentive to Amanda. He is outwardly a God-fearing man, and the congregation seems to universally like and trust him. He is married, and the father of two young boys. How could he possibly undertake any action so heinous and reprehensible? He is in his mid-40’s, but unknown to everyone, he was at a church in Oklahoma several years before when he was caught in the middle of a sexual act with a 14-year old girl. He was asked to leave the church, no charges were pressed, and the entire matter was swept under the carpet. He now uses his age (an outwardly credible, likeable adult), his position (a trusted man of God) and credible and likeable history to manipulate the young lady into sexual contact.
- $6,700,000 – Girls molested by Pastor at Church Camp
- $450,000 – Young Boy Sexually abused by Head Pastor
The attorneys at Monsees & Mayer have dedicated themselves to serving those who are survivors of sexual abuse. Not only do our attorneys aggressively pursue perpetrators and the organizations that imbue them with the opportunities to abuse, we also actively support organizations whose sole mission is protecting those who have been abused, assisting in their recovery, and advocating for measures to prevent these heinous acts. We can help.
Arguably, our children spend more waking time with teachers and educators than they do with their families. The vast majority of educators are trusted allies in the well-being of our children. But what happens if an educator or school employee betrays that trust and uses the school as a vehicle for sexual abuse?
Abuse at school can take on one of two forms:
- Either abuse by a teacher or other school employee, or
- Abuse of a student by another student.
Either case is challenging due to the legal protections afforded schools. While a teacher may be legally responsible for his/her own abuse of a child, a school may not share in that responsibility. That can pose problems when it comes time to collect a settlement or judgment. Schools enjoy what are called “immunities.” Generally, government organizations are immune from lawsuits. In short, they cannot be held legally responsible or the acts of their employees.
Mary is a 14-year old soccer player. Her male coach, Jim, consistently pats her on the backside as she makes plays, comes off the field and in a host of other situations, not all of which occur on or near the playing field. Mary doesn’t like the contact, and some of her teammates have even asked her, “What is going on?” It is the exercise of power over an individual under circumstances that have an unwelcome sexual component that is the key to distinguishing sexual abuse or contact from innocent, welcome touching. Hence, can a pat on the backside after Mary scores a goal be innocent and non-sexual? Of course! The key depends largely on frequency and whether the victim consents.
State-based “immunity” can, and often does, shield schools from otherwise owed responsibility for their part in allowing abuse to occur at school.
In Missouri, for example, state and local governments, including school districts, enjoy sovereign immunity from lawsuits with two very narrow exceptions. Sovereign immunity is a legal throw-back to the days when the king was immune from claims and lawsuits. That common law has carried forward into the modern day, in spite of many good reasons to permit such lawsuits. Only when there is a claim related to operation of an automobile or a dangerous condition on premises owned by the government, can one sue a Missouri government entity. Efforts to characterize sexual predation by a school worker as a “dangerous condition” on the school grounds have been uniformly rejected by courts.
Exceptions to School Immunity
There are narrow statutory avenues to sue schools. One such vehicle, discussed in greater detail below, is Title IX. What Title IX and any effort to place legal responsibility on a school have in common is a hurdle known as “notice.” Simply put, one has to prove that the school had knowledge of the facts and circumstances that would have alerted the school to the acts of predation. Actual notice by a school official is required, and the standards set forth in numerous court decisions create high hurdles to prove notice.
The standard is virtually the same whether the abuse is teacher-student or student-student. The school is legally responsible only when it had some substantial reason to know of the abuse and a corresponding opportunity to act.
Overcoming School Immunity
Federal-based claims are not subject to the limitations, or immunities, afforded at the state-level. Title IX is a federal claim that can be of great benefit to survivors of school sexual abuse.
Title IX of the Educational Amendments of 1972 protects all students from sexual harassment or violence. It states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
In general, a school can be held liable under Title IX if:
- it is an educational institution receiving federal funds
- it had notice or knowledge of acts of sexual abuse
- actions taken sufficiently severe or pervasive to create a hostile (or abusive) environment
- the institution was deliberately indifferent in response to such knowledge
As noted above, satisfying the higher “notice” standard required under Title IX is generally the difference between winning and losing.
The standard for liability under Title IX is not satisfied by knowledge that something might be happening and could be uncovered by further investigation. The standard is ‘actual knowledge’ of specific conduct.
The Courts’ Role in Title IX Claims
Courts have found this threshold to be met in circumstances where a school official witnessed first-hand sexual assault or other forms of sexual harassment, or situations where school officials have been informed of specific allegations of misconduct. However, courts have declined cases based on insufficient notice in circumstances where it was reported to officials that teachers were observed making inappropriate sexual comments and gestures to students, and spending too much time in their classrooms alone.
Additionally, to satisfy the actual knowledge requirement the reports of sexual abuse or harassment must be reported to appropriate persons who qualify as “school officials” having authority to institute corrective measures. Teachers or counselors typically do not constitute “officials”; by contrast, courts routinely hold that superintendents, principals, and vice-principals are “officials” for reporting purposes. For school employees falling somewhere in between these two categories, it is less clear, and typically decided on a case-by-case basis.
Other viable claims against schools may include one or a combination of the following:
- violation of the Human Rights Act
- denial of equal protection
- invasion of privacy
- false imprisonment
- intentional infliction of emotion distress
While the legal challenges are significant, a knowledgeable attorney with experience in such matters can successfully litigate claims for sexual abuse of children committed by teachers and other students. At Monsees & Mayer, we have had success, such as these recent results:
$475,000 – Middle School Student Molested by Teacher
$375,000 – High School Student Sexually Assaulted by Coach
Even attorneys with experience in handling sexual abuse cases may shy away from the substantial additional challenges presented by school cases. At Monsees & Mayer, we may take a critical look at such cases, but we do not balk at aggressively pursuing cases when children are victims at school.
Sexual abuse of children is most commonly committed by someone the child and/or his parents know. In the case of daycares, camps, and other youth organizations, these acts of abuse are particularly insidious for the betrayal of trust it takes.
While all sexual abuse is violent, most commonly, a child is manipulated into cooperation. Studies have indicated how perpetrators choose their victims:
- They look for passive, quiet, troubled, lonely children from single parent or broken homes, or
- They seek out children who are particularly trusting and work to establish a trusting relationship. Frequently, this includes a trusting relationship with the victim’s family.
Most sexual abusers are men and gain access to children in clubs and youth organizations. They gain the compliance of victims with increasingly inappropriate touches and behaviors described as “so insidious” that the abuse is frequently underway before the child recognizes the situation as sexual or inappropriate.
While threats of violence or consequences are used in 35% of such incidents, the element of trust is most often involved. 3 out of 4 victims are assaulted by someone they knew well.
Daycare workers, coaches, and youth organization leaders are common perpetrators. First, again, we trust them. We turn over the care and control of our children to such individuals frequently and with a sense of trust. We leave our children in daycare centers on workdays, never dreaming they will be returned to us at the end of a day scarred from abuse. Coaches frequently build trusting, friendly relationships with our children, and children may look up to the supportive coach with admiration. Youth leaders, such as the Boy Scouts of America or youth camps may even see our children in overnight or out-of-town settings. Again, we trust them.
Steven is a 13–year old 1st Class Boy Scout, dutifully climbing the ladder all the way from Cub Scouts. Harry, the assistant scout master, has been at Steven’s side throughout his progress. While on a camping trip, Steven is alone one night in his tent, as his expected companion was home with the flu. Harry crawls quietly into Steven’s tent, snuggles up next to him, and silently starts to fondle him. This progresses to future campouts, and although Steven now shows an increasing distaste for such trips and continually asks his parents if he can quit scouting, his parents keep reinforcing the benefits of scouting. Harry now manipulates the other scouts so that Steven consistently has a tent of his own at campouts.
When are Organizations Responsible for Sexual Abuse?
An organization may be liable for the acts of abuse committed by an employee or representative. In a general sense, there are two ways an organization can be held legally responsible for acts of employees:
This legal phrase literally translates as, “let the master answer.” In common terms, it means the employer can be held legally responsible for the acts of its employees and representatives which occur in the course and scope of employment. The challenge in this approach is proving that somehow the abuse occurred in the “course and scope” of the employee’s duties. Would any employer permit such heinous acts? On occasion, however, the employer may give the employee such access to children and the opportunity to commit acts of abuse that the employer’s grant of authority to the employee may at least border on permission. Nonetheless, this is a difficult burden in any effort to pin the legal responsibility for sexual abuse on an organization or employer.
Negligent Hiring or Supervision
Most employers or organizations undertake some process to screen applicants. What if that is done inadequately? What if the employer fails to follow up on references that would have disclosed prior sexual misconduct by an applicant? What if the employer knows of some report of prior misconduct but fails to investigate the allegations? In short, what if a potential employee has committed multiple past acts of sexual predation or is a registered sex offender?
Now, let’s assume the employer hires an individual. The individual may not have any prior reports or incidents of misconduct. However, the employer of a daycare knows of allegations made by children that they are being taken into the restroom where the worker is fondling them. If reports are made to the day care center and there is a failure to investigate and take action, the daycare center may be liable for failing to properly supervise the employee.
Responsibility for Negligence
In both instances, the responsibility is placed on the organization for its own acts or omissions in preventing abuse. This is a slightly different approach to respondeat superior claims where the employer is liable even if there was no negligence in either hiring or supervision. These cases have their own challenges. In most situations, the victim must prove that the organization had some level of knowledge or notice that the perpetrator was a threat to the ultimate victim.
The same principles apply irrespective of the nature of the organization. In other words, although a daycare center has been used as the example here, other organizations can be examined relying on the same considerations. In short, a true first-time perpetrator with no signs or signals of imminent abuse, may pose a challenge to proving the elements of a civil child abuse claim that will implicate the organization and not just the perpetrator.
At Monsees & Mayer our experienced attorneys have navigated the course of numerous sexual abuse allegations. We have a track record of compensating our deserving clients for the horrors of sexual abuse.
- $6,700,000 – Girls Molested by Pastor at Church Camp
- $2,000,000 – Sexual Abuse by Youth Choir Director
- $750,000 – Adolescent Boy assaulted by another resident
- $600,000 – Teenage Boy Sexually Assaulted by Camp Counselor