Legal remedies for victims of Sexual Exploitation and Sexual Assault in Texas


Published on

A primer on the law in Texas for victims of Sexual Exploitation committed by Doctors, Psychiatrists, Psychologists, Family Counselors, and even religious leaders such as Ministers, Priests, Rabbis who violate their Code of Ethics and have sexual relations with their patients or members of their congregation.

Published in: Education, Health & Medicine
1 Like
No Downloads
Total views
On SlideShare
From Embeds
Number of Embeds
Embeds 0
No embeds

No notes for slide
  • For more information on protective orders, see the 10-minute mentor presentation on “Protective Orders in Family Violence Cases” by Charles Geilich
  • Usually the Sexual Assault Forensic Examination is performed by a Sexual Assault Nurse Examiner (S.A.N.E.) rather than a physician.
  • The three offenses that qualify are: sexual assault, agg sexual assault of an adult or child, or indecency with a child by contact CODIS is a nationwide DNA database used to identify offenders.
  • See Ten-Minute Mentor program on “Crime Victims’ Compensation” by Suzanne McDaniel for more information. If victim is in Section 8 housing, the Section 8 administrators may also help with victim relocation – this is apart from the crime victims’ compensation fund. Victims must cooperate with prosecution to be eligible for CVC funds. If the victim becomes uncooperative during the proceedings, any CVC funds must be reimbursed. Relocation expenses may be available if the sexual assault occurred in the victim’s residence.
  • Legal remedies for victims of Sexual Exploitation and Sexual Assault in Texas

    1. 1. 1 Legal Remedies for Victims of Sexual Exploitation and Sexual Abuse committed by Doctors, Psychiatrists, and other Professionals in Texas © Attorney Kevin R. Madison Former Chief of Police Former Assistant District Attorney Principal Office located in Austin, Texas Cases handled throughout the State of Texas Trained TAASA Victim Advocate B.A. Psychology UT-Austin with Honors
    2. 2. What this Slideshare Presentation will educate you about Texas laws  Identifying civil causes of action available to victims of Sexual Exploitation and Abuse, including victims abused by doctors, clergymen, psychologists, psychiatrists, therapists, and lawyers having improper sexual relationships with their patients/clients.  Understanding the benefits of civil causes of action  Understanding the differences in burdens of proof in civil cases as opposed to criminal cases  Understanding and Reviewing “Statutes of Limitations”  Identifying Damages that crime victims may be able to recover 2
    3. 3. Sexual Exploitation cases are accepted throughout the State of Texas by The Law Offices Of Kevin R. Madison What is Sexual Exploitation? Sexual Exploitation is defined in the Texas Civil Practice and Remedies Code in Chapter 81. Sexual Exploitation is improper touching, sexual contact, lewd behavior (without physical contact), and “sexual treatment” of a mental health patient by any mental health professional, which includes your family doctor, your therapist, your psychologist or psychiatrist. Even religious counselors are included in this law, such as: Ministers, Deacons, Rabbis, and Priests. “Sexual Exploitation” is illegal and a victim can sue the person who sexually exploits them. 3
    4. 4. 4 Criminal Process • Report to Law Enforcement • Police Investigate Case • Presentation to Grand Jury • Grand Jury Indicts (or “No Bill”) • Criminal Trial Process Begins • Months of Time or Years Pass • Court Re-sets and Continuances • Trial or Plea Bargain Agreement • Dismissal of Hard to Prove Cases
    5. 5. 5 Civil Litigation...Why? Catharsis- Regaining Control for Victim Public awareness of Abusers Possibility of Settlement or Judgment Faster Track than Criminal Case Don’t have to wait until Criminal Case is Over Easier Burden of Proof than a criminal case: Preponderance of the Evidence Monetary Damages
    6. 6. BURDEN OF PROOF . . . is the level of proof required in a legal action required to prove the allegation asserted. Beyond a Reasonable Doubt: the highest level of proof, required in all criminal trials in the United States. Defendant presumed innocent. Clear and Convincing Evidence: The next highest level of proof, used in family law curt cases- the high standard required to terminate a parent-child relationship. Preponderance of the Credible Evidence: the lowest level of proof, used in these civil trials; typically means “more likely than not.” All that is required is to tip the scales 6
    7. 7. BURDEN OF PROOF In civil cases the scales are even, unlike in the criminal arena, where the defendant is presumed innocent and scales are tipped for defendant at the start of the trial. All is takes to prevail in the civil justice system is to tip the scales in favor of the plaintiff. A 51% to 49% (more likely than not) weight of the credible evidence will win. 7
    9. 9. Sexual Exploitation of Patient by a Mental Health Provider TCPRC, Chapter 81: Mental Health Service Providers such as Licensed Social Workers, Chemical Dependency Counselors, Licensed Professional Counselors, Licensed Marriage and Family Therapists, Clergy, Physicians, and Psychologists are Liable to patients and former patients for damages for sexual exploitation if the patient or former patient suffers a physical, mental, or emotional injury caused by, resulting from, or arising out of: 9
    10. 10. SEXUAL EXPLOITATION BY MENTAL HEALTH CARE PROVIDER TCPRC, Chapter 81 (a) Sexual Contact Between patient and Provider; (b) Sexual Exploitation of patient by Provider; or (c) Therapeutic Deception of patient by Provider. 10
    11. 11. Sexual Exploitation of Patient by a Mental Health Care Provider Statute of Limitations: Three (3) Years TCPRC 81.009 Actual Damages:Medical Bills Mental Health Counseling Bills Mental Anguish & Physical Pain Physical Impairment Lost Wages + Attorney’s Fees + Punitive Damages 11
    12. 12. Sexual Exploitation of Patient by a Mental Health Care Provider TCPRC, Section 81.004: A Plaintiff who prevails may recover actual damages, including damages for mental anguish even if an injury other than mental anguish is NOT shown. 12
    13. 13. Sexual Exploitation of Patient by a Mental Health Care Provider TCPRC, Section 81.005(a): It is NOT a defense that the sexual exploitation of the patient or former patient occurred: (1) with the consent of the patient; (2) outside the therapy or treatment sessions; or (3) off the premises regularly used by the mental health services provider for therapy or treatment. 13
    14. 14. 14 NON-DISCHARGEABILITY IN BANKRUPTCY PROCEEDINGS 11 USCS § 523(a)(6) §523. Exception to discharge A defendant who commits an Intentional Tort, such as Assault, Sexual Assault, or Sexual Exploitation is forbidden by federal law from being able to file for bankruptcy and discharge any civil judgment against him if he caused... ...a willful and malicious injury to another person or entity
    15. 15. 15 Attorney Kevin Madison has been successful suing and obtain money settlements for victims of: SEXUAL ASSAULT SEXUAL MOLESTATION BY A DOCTOR CONSENSUAL* SEXUAL CONTACT BETWEEN DOCTORS & PATIENTS LAWYERS PRESSURING CLIENTS TO HAVE SEX WITH THEM** * There is no such defense as “consent” when a doctor, psychiatrist, psychologist, therapist, minister, priest, rabbi violates their fiduciary duty and convinces a patient to have sexual relations with them! **The same is true if a lawyer has sex with a client. This is highly unethical conduct and a violation of their fiduciary duty to client. We love to sue lawyers who violate their ethical duties to clients.
    16. 16. 16 SEXUAL ASSAULT Texas Penal Code, Section 22.011 Statute of Limitations: Five (5) Years TCPRC, Sec. 16.0045 Actual Damages:Medical Bills Mental Health Counseling Bills Mental Anguish & Physical Pain Physical Impairment Lost Wages Punitive Damages:NO LIMITATION TCPRC, Sec. 41.008(c)
    17. 17. 17
    19. 19. 19 Tips to Help Assault Victims This is a list of top legal rights that can assist Assault Victims. This list is not meant to be comprehensive, but rather is a list of legal rights that most crime victim attorneys feel are important to help our crime victim clients.
    20. 20. 20 Magistrate’s Order for Emergency Protection, TCCP Article 17.292. Originally for family violence victims, but now includes victims of sexual assaults, dating violence, and stalking Order valid for 31-61 days, unless deadly weapon used then order extends to 91 days. Judge can issue on own motion or request by victim or police officer. Emergency Protective OrdersEmergency Protective Orders Texas Code of Criminal Procedure, Article 17.292Texas Code of Criminal Procedure, Article 17.292
    21. 21. 21 Prohibit a defendant from: – Committing further acts of violence against victim – Communicating with victim in threatening or harassing manner – Going near victim’s home, school, or place of employment – Possessing a firearm – Punishable by up to year in jail + $4,000 fine
    22. 22. 22 Sexual Assault ExamsSexual Assault Exams Texas Code of Criminal Procedure, Article 56.045Texas Code of Criminal Procedure, Article 56.045 Victims have right to sexual assault examination that is paid for by the state. Victims have the right to have an advocate from a sexual assault program with them during the sexual assault forensic medical examination.
    23. 23. 23 Sexual Assault HIV TestingSexual Assault HIV Testing Texas Code of Criminal Procedure, Article 21.31Texas Code of Criminal Procedure, Article 21.31 • If requested by victim or ordered by the court, testing is mandatory for anyone indicted for sexual offense. • Results are released to local health authority • Health authority reports the results to victim • Results of the test cannot be used in prosecution • This testing is different from CODIS database testing for offenders.
    24. 24. 24 PseudonymsPseudonyms Texas Code of Criminal Procedure, Article 57.02Texas Code of Criminal Procedure, Article 57.02 A victim of an alleged sexual assault can use a pseudonym in public court documents. Police officers required to offer forms to sexual assault victims to use a pseudonym. Pseudonym means a set of initials or fictitious name that designates the victim in all public records of a criminal proceeding. e.g. “JRD” or “Jane Doe” The pseudonym is used in police report, indictment, and during trial to protect true identity of sexual assault victim.
    25. 25. 25 Address ConfidentialityAddress Confidentiality Texas Code of Criminal Procedure, Article 56.82Texas Code of Criminal Procedure, Article 56.82 The Office of the Attorney General of Texas has established an address confidentiality program for victims of sexual assault, stalking, and family violence. The OAG designates a P.O. box address for victims to use and then forwards all mail to victims. The OAG serves as agent for service of process.
    26. 26. 26 Crime Victims’ CompensationCrime Victims’ Compensation Texas Code of Criminal Procedure, Article 56.31 – 56.64Texas Code of Criminal Procedure, Article 56.31 – 56.64 Victims of sexual assaults, physical assaults, and other violent crimes are entitled to apply for crime victims’ compensation benefits through the Attorney General’s office. Financial benefits may include assistance with:  medical treatment  mental health counseling  relocation expenses
    27. 27. 27 Crime Victim Bill of RightsCrime Victim Bill of Rights Texas Code of Criminal Procedure, Article 56.02Texas Code of Criminal Procedure, Article 56.02 Victims must INVOKE their Rights! You can do this by sending Prosecutor a Letter.  Protection from threats  Notification of all court proceedings  Information on victim compensation fund  Right to provide information on pre-sentence report  Right to make victim impact statement to court  Separate waiting area during court proceedings
    28. 28. 28 Victim Rights Letter to Prosecutor My office sends out a notice letter to the prosecutor invoking the Crime Victim Rights Act A copy of this letter is filed with the Court TCCP, Art. 56.02 Texas Crime Victims’ Act
    29. 29. 29 Victim Rights Letter to Prosecutor District Attorney Via Certified Mail # Return Receipt Requested Re: State of Texas vs. ________________________ Crime Victim: ______________ Cause Number: _____________ In the _____ Judicial District Court of _________ County Offense: Aggravated Sexual Assault NOTICE OF INVOCATION OF CRIME VICTIM RIGHTS TCCP 56.02 TEXAS CRIME VICTIM’S ACT Dear District Attorney _________, Pursuant to the Texas Code of Criminal Procedure, Article 56.02, more commonly known as the Texas Crime Victims’ Act, this letter is to advise you, as District Attorney, (and the Court) that I am the above-referenced crime victim in this aggravated assault case.
    30. 30. 30 Pursuant to the Texas Code of Criminal Procedure, Article 56.02, I am invoking all of my legal rights under the Crime Victims Act, including but not limited to the following enumerated legal rights: Texas Code of Criminal Procedure, Article 56.02(a): (3)(A) the right, if requested, to be informed by the attorney representing the state of relevant court proceedings, (5) the right to provide pertinent information to a probation department conducting a presentencing investigation concerning the impact of the offense on the victim and his family by testimony, written statement, or any other manner prior to any sentencing of the offender;
    31. 31. 31 (8) the right to be provided with a waiting area, separate or secure from other witnesses, including the offender and relatives of the offender, before testifying in any proceeding concerning the offender; if a separate waiting area is not available, other safeguards should be taken to minimize the victim's contact with the offender and the offender's relatives and witnesses, before and during court proceedings; (13) the right to be informed of the uses of a victim impact statement and the statement's purpose in the criminal justice system, to complete the victim impact statement, and to have the victim impact statement considered: (A) by the attorney representing the state and the judge before sentencing or before a plea bargain agreement is accepted; (b) A victim, guardian of a victim, or close relative of a deceased victim is entitled to the right to be present at all public court proceedings related to the offense, subject to the approval of the judge in the case. (c) The office of the attorney representing the state, and the sheriff, police, and other law enforcement agencies shall ensure to the extent practicable that a victim, guardian of a victim, or close relative of a deceased victim is afforded the rights granted by Subsection (a) of this article and, on request, an explanation of those rights.
    32. 32. Summary of Limitation PeriodsSummary of Limitation Periods 2 Years Simple Assault & Assault with Bodily Injury 2 Years Intentional Infliction of Emotional Distress 3 Years Sexual Exploitation by Mental Health Provider or Mental Health Counselor 5 Years Sexual Assault and Incest Claims If victim is a child, time begins to run when victim turns 18 years of age 32
    33. 33. All Cases are Contingency Fee  Attorneys who handle Crime Victim Cases do not charge hourly fees or retainer fee. We handle Crime Victim cases the same way we handle Personal Injury cases – by agreeing to accept a percentage of the total money recovery we obtain for the client.  Our fees are “contingent” on obtaining a settlement for the Client.  If we are unable to get a recovery for the Client, the Client owes us nothing! Not even out of pocket costs. 33
    34. 34. 34 Guilty, as charged!
    35. 35. Contact Information: Texas Attorney Kevin R. Madison Former Police Chief - Former Prosecutor Tel: (512) 708-1650 Office 35