When a child has been the victim of sexual abuse, it may trigger both the civil and criminal process. While these processes both involve the courts and have many similarities, there are also fundamental differences, too.
Fundamentally, a criminal case is targeted towards obtaining a guilty plea or verdict and jail time for the perpetrator; in some cases, restitution may be awarded to the victim but is usually limited to actual medical expenses or out of pocket expenses (for example, lost wages for having to take time off to testify). Of course, in the case of most child sexual abuse victims, these remedies are woefully inadequate because the harm is generally emotional and unseen rather than physical injuries that can be neatly quantified in medical bills, and because most are not of working age yet.
However, in a civil case, a victim can seek monetary damages to compensate him or her for past, present, and future pain and suffering and medical, psychological, and psychiatric needs. In many states, punitive damages may also be available. For victims of child pornography, Federal law may provide a civil remedy as well, automatically providing damages if the victim qualifies (18 U.S.C. § 2255).
One of the most important differences between civil and criminal law as it relates to child sexual abuse is the statute of limitations. This difference is very state-specific. For example, in Indiana, criminal prosecution of a child molester must be commenced before the alleged victim turns 31 years old (Ind. Code § 35-41-4-2(e)(1)), but a civil action for injuries related to the sexual abuse of a child must be commenced by the later of (1) seven years after the abuse, or (2) four years after the victim is no longer a dependent of the perpetrator (Ind. Code § 34-11-2-2-4(b)). But in Illinois, Indiana’s next-door-neighbor, criminal prosecution of sexual crimes against children must be commenced within ten years after the victim turns 18 (if it is a misdemeanor; 720 ILCS 5/3-6(j)(3)) or within twenty years after the victim turns 18 (if it is a felony; 720 ILCS 5/3-6(j)(2)); in some circumstances, there is no statute of limitations for criminal prosecutions of sex offenders at all (see e.g. 720 ILCS 5/3-6(j)(1)). Rules regarding the civil statute of limitations is similarly a minefield of state-specific rules.
Real-Life Examples of How the Differences Work
We probably all remember O.J. Simpson. Although the jury found him “not guilty” in his criminal trial, later, in a civil case, he was ordered to pay a combined total of $33.5 million to the families of Nicole Simpson and Ronald Goldman. Similarly, Robert Blake, although acquitted in the criminal case, was found liable to the tune of $30 million in his civil trial. In both cases, the families who received the favorable verdicts were happy to have finally received “justice,” “closure” and “vindication.”
Civil lawsuits have uncovered conduct that was missed even by the media. In 2001, the Boston Globe “Spotlight” team, began investigating a story that they thought consisted of one priest who was moved several times by the Boston Archdiocese to cover up sexual abuse. Ultimately, the Pulitzer-prize winning series of articles that they published highlighted a much deeper institutional problem with the Catholic church covering up for large numbers of pedophile priests across the United States and the world. However, the “Spotlight” team did not uncover this scandal; that had already been accomplished by two civil attorneys, years before the media or criminal courts ever decided it was worth investigating.
In the Bill Cosby case, only one criminal case has been brought, but several women have filed civil suits.
Who is the Defendant in a sex abuse lawsuit? Although the obvious defendant is the abuser, others may also be liable. Two important questions to ask is "where did the abuse occur" and "who provided oversight to the abuser?" For example, if the abuse occurred in someone’s house, it might be appropriate to name the homeowner to try to trigger a homeowner’s insurance policy; if it occurred in a business or while the perpetrator was on the job, the business or employer may be liable. If others knew about the abuse, but did nothing to stop it, they should be held responsible.
Over the years, churches, schools, athletic associations, sports governing bodies, and the like, have been found responsible for allowing abuse to occur.
Mandatory Reporting Laws
Federal law (42 U.S.C. § 13031) and all fifty states designate certain individuals as “mandatory reporters” – that is, if these individuals learn of facts that make them suspect a child has been physically or sexually abused, they must report the abuse to a designated authority for further investigation. As always, the requirements vary depending on the law. For example, California lists forty-four categories of professionals with a duty to report, (CAL. PENAL Code § 11165.7), whereas Illinois lists no fewer than fifty-seven (325 ILL. COMP. STAT. 5/4). Usually, individuals who are “mandatory reporters” include doctors, psychiatrists, teachers, social workers, child care workers, law enforcement, and the like. See 42 U.S.C. § 13031(b); S.C. Code Ann. § 63-7-310. These are professionals who are in frequent contact with children or who are likely to discover abuse.
On the other hand, forty-eight states provide for criminal penalties if a mandatory reporter knowingly fails to report suspected abuse. Seven states (Michigan, Iowa, Montana, New York, Rhode Island, Colorado, and Arkansas) have civil penalties if a mandatory reporter knowingly fails to report suspected abuse.