Remedies Available to Victims of Child Abuse

The allegations of sexual abuse at Penn State are ugly. If proven true, the ramifications will be powerful and long-lasting. Certainly the Penn State officials, including Sandusky, not only face criminal charges but also civil lawsuits.

Although most of the media attention has focused on the individual Penn State employees like Jerry Sandusky, former President Graham Spanier and, of course, Joe Paterno, we must not lose sight of the suffering the victims are going through right now. Everybody was talking about the students’ protests at Joe Paterno’s firing last week when what we really should have been talking about is protecting our kids and preventing tragedies like this from ever occurring again.

A 2004 report by the U.S. Department of Education found that approximately 9.6% of children in school (approximately 3.4 million students in kindergarten through 8th grade) are subjected to sexual misconduct on the part of a school employee. I appeared on the Mully and Hanley Morning Show last Thursday to speak about some of the ways the law strives to protect our children as well as some of the other legal ramifications arising from the case.

Victims of child sex abuse have various civil remedies available. Under Section 1983 of the Civil Rights Act, a claim could be filed seeking recovery arising out of the deprivation of constitutional rights. A victim of child sex abuse can recover damages if he or she can prove a person/institution, acting under color of state law, “subjects or causes to be subjected” a person to a violation of their constitutionally protected rights.

If the allegations of deliberate inaction against Penn State authorities are true, then any university officials who knew of the alleged abuse and took actions which allowed the it to continue may face Section 1983 claims.

A second type of claim available to victims of child sex abuse is one based on ordinary negligence principles. In order to establish a negligence claim, a victim would have to show the university or individual administrators owed a duty of care to the victims. This may be a duty as an employer to prevent employees from committing crimes or civil harms on others while their employees are engaged in their employment, or a duty to prevent reasonably foreseeable abuse happening to children over whom an individual has supervisory capacity, or to follow the state’s reporting requirements.

In the case of Joe Paterno, for example, a civil lawsuit might be brought against him alleging negligently failed to prevent a third party with whom he had a supervisory relationship (Sandusky) from committing abuse. A victim would have to prove that the abuse was reasonably foreseeable, however. So a case against Paterno would all come down to how much he knew about the alleged abuse, when he knew about it and what exactly he did.

Lawsuits of this kind that go to trial often result in huge damages awards. More often than not though, they result in huge settlements before trial. This past week, the Archdiocese of Chicago agreed to pay $3.2 million to a victim of sexual abuse at the hands of convicted former priest for failing to remove the priest from having contact with children even though the church had knowledge of the alleged abuse.

However, these lawsuits are limited in that they only provide monetary compensation to victims of child sex abuse after the damage has been done. You cannot put a price on the emotional pain and suffering that victims experience. The fact that we still see instances of child abuse even with these laws means the threat of legal action is not acting as an adequate deterrent to child abusers. Hopefully the legal process will shed some light on what needs to be done to prevent such a tragedy from ever happening again.

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