DR COSTELLO AND I RECENTLY SAT DOWN TO DISCUSS THE INTERSECTION OF HER COUNSELING PRACTICE AND MY LAW PRACTICE – FOUND THAT WE SHARED A COMMON INTEREST AND COMMITMENT TO HELPING VICTIMS OF CRIME AND SEXUAL ABUSE – HER FROM THE STANDPOINT OF HELPING VICTIMS RECOVER FROM THE WOUNDS OF ABUSE THROUGH DIAGNOSIS AND COUNSELING – I FROM THE STANDPOINT OF WORKING WITHIN THE CIVIL COURT SYSTEM TO HELP VICTIMS RECOVER COMPENSATION SO THAT THEY COULD AFFORD TO PAY FOR DIAGNOSIS AND COUNSELING - WE REALIZED THAT WE COULD MUTUALLY BENEFIT EACH OTHER’S PRACTICES – THAT I OFTEN ENCOUNTER CRIME VICTIMS WITH VIABLE CASES WHO HAVE UNDER-TREATED OR INDEED HAVE NEVER HAD TREATMENT – THAT SHE IN TURN MAY ENCOUNTER PATIENTS WHOSE ABILITY TO FUND CARE COULD BE DEPENDENT ON THE COURT SYSTEMSO THE GOAL OF THIS PRESENTATION IS TO TALK ABOUT THE COURT SYSTEM AND IN PARTICULAR THE CIVIL JUSTICE SYSTEM AND HOW IT CAN BE THE VEHICLE IN SOME INSTANCES TO PAY FOR PSYCHOLOGICAL CARE FOR CRIME VICTIMS AS A QUICK INTRODUCTION MY EXPERIENCE IN THIS FIELD COMES FROM SEVERAL PERSPECTIVES – FOR EXAMPLE, HANDLING CASES INVOLVING: 1) CLERGY ABUSE, 2) FOSTER PARENT ABUSE WHERE THE STATE’S SUPERVISION WAS CALLED INTO QUESTION, 3) LANDOWNER LIABILITY FOR FAILURE TO PROVIDE ADEQUATE SECURITY, 4) CASES THAT INVOLVED THE QUESTION OF WHETHER INSURANCE SHOULD COVER ACT OF SEXUAL ABUSEWITH THAT LETS DIVE IN…
ELEMENTS …ASSAULT = INTENDING TO CAUSE FEAR OF OFFENSIVE BODILY CONTACTBATTERY = INTENTIONALLY CAUSING OFFENSIVE BODILY CONTACTFALSE IMPRISONMENT = INTENTIONALLY RESTRAINING SOMEONE AGAINST THEIR WILL INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS = DEFENDANT INTENTIONALLY COMMITS AN EXTREME AND OUTRAGEOUS ACT THAT CAUSES SEVERE EMOTIONAL DISTRESS ----- A CATCH ALL TORT THAT IS VERY NARROWLY APPLIED************************VICARIOUS LIABILITY = THE CONCEPT THAT AN EMPLOYER COULD BE LIABLE FOR INTENTIONAL TORTS OF ITS EMPLOYEES IF THEIR WERE COMMITED IN THE COURSE AND SCOPE OF EMPLOYMENT. THIS WOULD MAKE THE LIABLE FOR THE ASSAULT AND BATTERY ETC ITSELF. IN ORDER TO PROVE THAT THE PLAINTIFF HAS TO SHOW THAT THE ACT WAS COMMITTED TO FURTHER THE INTERESTS OF THE EMPLOYER SO ITS NARROWLY APPLIED. NEGLIGENT HIRING = A LEGAL DOCTRINE THAT HOLDS THAT AN EMPLOYER CAN BE HELD LIABLE FOR THE CONSEQUENCES OF FAILING TO CHECK INTO THE BACKGROUND AND REFERENCES OF A PROSPECTIVE EMPLOYEE WHO LATER CAUSES NEGLIGENT RETENTION = CONCEPT THAT AN EMPLOYER CAN BE HELD LIABLE AFTER THE HIRING DECISION FOR HARM CAUSED BY AN EMPLOYEE THE EMPLOYER SHOULD HAVE EXPECTED COULD CAUSE HARM IF IT WAS PUT ON NOTICE OF HIS LIKELIHOOD TO DO SOPREMISES LIABILITY = CONCEPT THAT A LANDOWNER CAN BE LIABLE TO AN INVITEE (AS OPPOSED TO A TRESPASSER) FOR VIOLENT ACTS OCCURING ON THE PROPERTY IF HE KNEW OR SHOULD HAVE KNOW THAT THEY WERE LIKELY TO HAPPEN. THE CRUX OF THIS TYPE OF CASE IS SHOWING THAT VIOLENT CRIME OCCURRED ON OR NEAR THE PREMISES IN THE PAST. IF THAT CAN BE SHOWN THEN A LANDOWNER CAN BE HELD LIABLE IF IT FAILED TO TAKE REASONABLE STEPS TO PREVENT VIOLENT CRIME – ENSURE PROPER LIGHTING AND IN SOME CASES HIRE SECURITY GUARDSSTATUTORY LIABILITY = TITLE 9 OF THE EDUCATION AMENDMENT ACT OF 1972 APPLIES TO SCHOOL LIABILITY IN CRIME VICTIM CASES – THESE CASES INVOLVE ALLEGATIONS OF SEXUAL HARASSMENT BETWEEN TEACHER AND STUDENT AS WELL AS STUDENT ON STUDENT - THE BURDEN ON PLAINTIFFS IS TOUGH: THE PLAINTIFF IN THESE CASES HAS TO SHOW THAT AN OFFICIAL WITH AUTHORITY HAD ACTUAL KNOWLEDGE ABOUT THE HARASSMENT AND ACTED WITH DELIBERATE INDIFFERENCE TO IT
CHRONOLOGY….JERRY SANDUSKY WAS EMPLOYED AS ASSISTANT COACH OF PENN STATE FOOTBALL TEAM FROM1969 TO 19991977 FOUNDED THE SECOND MILE WHICH WAS A FOSTER HOME TO HELP TROUBLED YOUNG BOYSALLEGATIONS OF SEXUAL ABUSE INVOLVING THE YOUNG BOYS DATE BACK AT LEAST TO 1992IN 1998 SANDUSKY IS INVESTIGATED BY VARIOUS LEGAL AUTHORITIES BUT NO CHARGES ARE FILED, AFTER THAT HE CONTINUES TO HAVE ACCESS TO THE PENN STATE FACILITIES ACCORDING THE GRAND JURY INVESTIGATION SANDUSKY BEGINS HAVING CONTACT WITH A VICTIM 1 WHOM HE MET THROUGHT THE SECOND MILE PROGRAM – AT THIS TIME SANDUSKY IS ALSO VOLUNTEERING HIS TIME AT CENTRAL MOUNTAIN HIGH SCHOOL IN CLINTON COUNTY PA ALLEGATIONS: MARCH 2002 ASSISTANT COACH MIKE MC QUEARY ENTERED THE LOCKER ROOM IN THE PENN STATE FOOTBALL FACILITY AND LATER WITNESSED SANDUSKY ENGAGING IN A SEXUAL ACT WITH A 10 YEAR OLD BOY KNOWN AS VICTIM 2 – THE NEXT DAY MC QUEARY REPORTS THE INCIDENT TO JOE PATERNO WHO IN TURN INFORMS THE ATHLETIC DIRECTOR TIM CURLEY AND UNIVERSITY SVP – THEY RESPOND BY TELLING SANDUSKY NOT TO BRING BOYS AFFILIATED WITH THE SECOND MILE BACK TO THE PENN STATE FACILITYIN THEIR GRAND JURY TESTIMONY PATERNO, THE AD AND SVP DISPUTED MC QUEARY’S VERSION OF THE STORY – PATERNO: ONLY TOLD “ABOUT FONDLING OR DOING SOMETHING OF A SEXUAL NATURE”, THEY ALL DENIED HEARING ANYTHING ABOUT ANAL INTERCOURSEAS WE KNOW FROM MEDIA COVERAGE SANDUSKY HIMSELF HAS ADMITTED TO AT LEAST A BASELINE OF CONDUCT THAT INCLUDED SHOWERING TEENAGE BOYS 2009 THE GRAND JURY INVESTIGATION BEGINS AND SANDUSKY IS ARRESTED LATE LAST YEAR((DIAGRAM))CORE CIVIL CASE THEORIES ARE EXACTLY WHAT WE HAVE TALKED ABOUT HERE: INTENTIONAL INFLICTION OF EMOPTIONAL DISTRESS, NEGLIGENT HIRING, NEGLIGENT RETENTION, PREMISES LIABILITY – WILL TAKE YEARS TO PLAY OUT
Civil Justice for Crime and Sex Abuse Victims
Marcus CastilloHaas & Castillo, P.A.
More than 23 million Americans are victimized by crime every year The consequences of crime often extend beyond the criminal act. Cost to society per year = ~$450 BILLION per year Crime victims suffer out of pocket losses and emotional pain and suffering Many victims are unable to cover expenses caused by the crime, e.g. psychological counseling
Criminal Justice System Focus on guilt or innocence of the alleged criminal Proof beyond a reasonable doubt Restitution is available ▪ Payment as a part of sentence ▪ Crime Compensation Trust Fund ▪ www.myfloridalegal.com/victims Restitution is not complete justice ▪ Ability of the defendant to pay? ▪ Trust Fund limits ▪ No compensation for emotional pain and suffering
Civil Justice System Focus on the liability of the alleged criminal AND third parties whose negligence or other wrongful conduct contributed to the act Proof by a preponderance of the evidence Civil justice is more complete justice ▪ Victims can potentially recovery for emotional pain and suffering and sometimes punitive damages ▪ Out of pocket damages are not capped ▪ Third parties may be capable of paying full compensation
Liability of the Alleged Criminal Assault and Battery False Imprisonment Intentional Infliction of Emotional Distress Liability of Third Parties Vicarious Liability Negligent Hiring Negligent Retention Premises Liability Statutory Liability
Some Defenses Statute of Limitations ▪ Generally four years BUT abolished on a going forward basis in sex abuse cases effective July 1, 2006 ▪ Recovered memory issue Consent Impact Rule ▪ No liability for negligence unless there was an “impact” i.e. the victim was touched Background Checks as a Defense to Negligent Hiring
Damages Past and future medical and related expenses Past and future income losses Past and future emotional distress and physical pain and suffering Punitive damages Liability for the Victim’s Attorney’s Fees in Some Instances
Crime victims deserve full compensation Civil justice system can often provide better justice for victims It can be the vehicle to pay for adequate psychological counseling Professionals in contact with crime victims should have a working familiarity with the civil justice system My Blog:www.civiljusticeforcrimevictims.com Questions?