If you’re filing a Florida sexual assault lawsuit in civil court, there are a number of potential legal hurdles about which you should be aware.
Before diving into the details, we want to make it clear that the point here isn’t to discourage anyone considering a sex abuse lawsuit. Rather, our goal is to empower. As West Palm Beach attorneys for sexual abuse survivors, we’re fully cognizant of the fact that our clients have already been through so much. Part of our job is to make sure that those clients – and potential clients – have all they need to make informed choices about how best to proceed when it comes to a sexual assault civil lawsuit. That includes carefully explaining some of the legal snags that can stymie a case.
Why File a Florida Sexual Assault Lawsuit in Civil Court?
More than half of women and nearly 1 in 3 men experience sexual violence involving physical contact at some point in their lifetime. Not all incidents are “violent,” but no less damaging for that. (Sometimes it’s even more traumatic when a victim is made to believe they are somehow complicit or responsible.)
Accountability in these cases is often elusive in criminal courts. Even if the alleged abuser or attacker is prosecuted and convicted, the ability of the criminal justice system to compensate survivors is limited. Criminal cases may include an offer of restitution. However, unlike in a civil case, the purpose with this financial compensation isn’t solely to compensate the victim. It’s also intended to serve the rehabilitative goals that the criminal justice system has for defendants – and this doesn’t always align with what’s in the best interests of the victim.
But whatever happens on that end of things, there may be grounds to pursue liability in a civil case – typically from third parties.
Though usually not a direct legal action against the perpetrator, third-party sex abuse cases can be an effective way for victims to obtain:
- Validation and accountability from third parties that had a responsibility to do more to keep you safe or warn you of the danger.
- Financial compensation for the very real and very significant impact this has had on your life.
- A safer future for those in similar scenarios. When third-parties are compelled to pay for failing to protect against the risk of sexual assault when they had a responsibility to do so, they – and others – will take greater care to do better. Defendants in these cases are often property owners, school administrators, sports teams, and employers. People deserve to be safe in these spaces, and successful third-party liability sexual abuse lawsuits can help achieve that.
It’s true that the probability of winning – and actually collecting a financial judgment – is central to the question of whether pursuing a civil sex abuse case is a prudent choice. But it’s not the only consideration. Our attorneys can help walk you through your objectives, concerns, and strategies to overcome common legal issues.
What Obstacles May Stand in the Way of Justice?
Every case is different, but some possible challenges that sometimes crop up in Florida sexual abuse lawsuits:
- Not enough evidence. No claim can prevail in court without evidence. We start with a pretrial investigation to sift through the facts and determine what elements can be independently corroborated. (Lawyers can actually be disciplined by the state bar association if they try to file claims without evidence.) Sexual assaults can be difficult to prove (though the proof burden is lesser in civil cases than criminal). If any amount of time has gone by, it can be even tougher. We’ll do all we can to identify and secure relevant evidence that will help your case. But we’ll also be upfront with you if it doesn’t seem to be enough to “get past the front gate,” so-to-speak.
- Ongoing criminal proceedings. Technically, the criminal case and civil case are entirely separate. It’s not necessary for an attacker to have been arrested and convicted for you to pursue a civil case. Or visa versa. That said, if there is an ongoing criminal case, the abuser/attacker can invoke their Fifth Amendment rights to avoid prosecution. This doesn’t apply if they are no longer at risk of criminal prosecution (i.e., they’ve been acquitted, they’ve been convicted, etc.). Sometimes, this means the civil case needs to be essentially put on hold until criminal proceedings have wrapped up. If there was a conviction or guilty plea, that and other statements made in the criminal trial can be used as evidence in the civil case.
- Judgment-proof defendants. It is a deeply upsetting reality that even if a defendant is deemed legally liable to pay a judgment in a Florida civil sex abuse case, they may never have to pay. If there isn’t an insurance policy that will cover it (and insurers don’t cover the criminal acts of insureds), the defendant needs to have enough nonexempt assets to be able to satisfy it. This is why so many sex abuse lawsuits target third-party defendants instead of the rapists and abusers themselves. The perpetrators rarely have adequate assets to make a lawsuit worth it. But with third parties (government agencies, property owners, employers, etc.), there is not only a higher likelihood of adequate non-exempt assets, but liability insurance that will cover damages. The reason insurance will cover third parties in these situations is that we’re generally not alleging an intentional tort, as we would with an abuser. Instead, we’re alleging negligence, such as failure to supervise, negligence in hiring, inadequate security, etc. Negligence, unlike criminal conduct, is generally covered by insurers. The bottom line is that unless there are assets or insurance, there is unlikely a case.
- Deep-pocketed defendants. While a defendant with assets and insurance is a must, this also creates a challenge because it means they can afford an aggressive defense. They aren’t easily pressed into settlements without crystal clear evidence. That said, insurers are bound by law to act in good faith. That means they are required to settle when the facts (liability and damages) are reasonably clear, and they can’t drag their feet when it comes to paying – especially if the court has ordered them to do so. Failure to do so can result in a bad faith insurance action, which can result in triple damages.
- Statute of limitations. There are many reasons why a victim of sexual assault would not immediately report what happened to police – let alone consider filing a civil lawsuit. Unfortunately, the law does not have an unlimited window of time for claims. As we noted in a previous blog, the statute of limitations for filing a civil sexual abuse lawsuit in Florida is 4 years. But you should really talk to a lawyer before reaching any conclusion about that, because there are a lot of caveats. For example, the law allows for a 7-year statute of repose after the victim’s 18th birthday for abuse that happened when they were a minor. It’s also possible the clock on that 4-year window might not start ticking until such time as the survivor discovers there’s a link between the injuries/damages they’re suffering and the abuse that occurred. If the victim was under the care/control of the abuser, they may have more time to file.
Contact the South Florida personal injury attorneys at Halberg & Fogg PLLC by calling toll-free at 1-877-425-2374. Serving West Palm Beach, Miami, Tampa, Orlando and Fort Myers/ Naples. There is no fee unless you win.
APPLYING COMMERCIAL LITIGATION PRINCIPLES TO THE EVALUATION OF CIVIL SEXUAL ABUSE CLAIMS, August 2014, Florida Bar Journal
More Blog Entries:
When an Employer is Liable for Florida Workplace Sexual Assault, Jan. 23, 2022, West Palm Beach Sexual Abuse Lawyer Blog