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Child Molestation Civil Vs. Criminal Lawsuits

Civil vs. Criminal Lawsuits: Understanding the Differences

In civil child molestation lawsuits, a victim seeks monetary compensation for emotional and/or physical damages, as well as any other losses he or she may have suffered as a result of the abuse.

Civil lawsuits are sometimes brought directly against the perpetrator. However, there may be organizations or other entities that can be held accountable for allowing abuse to take place or failing to prevent it from occurring. Examples of the types of third-party institutions that can be held accountable in civil child sexual assault lawsuits include:

In a criminal lawsuit, the state files a charge against the perpetrator (the defendant) for any crimes that the person may have committed. If the defendant is convicted, he or she may be sentenced to probation, community service, jail time, or prison time.

In short, a civil lawsuit is filed in an effort to obtain financial compensation for the victim. A criminal suit, which can only be brought by the government, serves to punish the offender.


What is child molestation, and what legal remedies are available?

Few crimes are more offensive to community values and morals than the sexual abuse of a child.

The legal definition of child molestation varies by jurisdiction. To learn more about how each state defines child sex abuse and molestation, visit our child molestation laws page.

The spectrum of legally actionable behavior includes sexual intercourse with a child; touching offenses, such as fondling or forcing a child’s contact with adult’s sexual organs; and non-touching offenses, such as exposing a child to pornographic material, or engaging in indecent exposure or masturbation in front of a child. Acts of sexual exploitation, such as soliciting a child for the purposes of prostitution, or using a child to create pornographic work, may also be actionable as child molestation.

In every jurisdiction, child molestation is a criminal act that typically carries harsh penalties. The criminal law considers such heinous acts of sexual abuse to be an affront to not only the child victim, but to the social fabric of the state, and will seek as a redress the incarceration of the perpetrator.

It is important to understand that various statutes of limitations apply to criminal cases in California. If a criminal case is not brought within a certain amount of time after the offense is committed, the case may be “time-barred” for violating the statute of limitations.

  • For the following crimes, if the victim was under 18 at the time of the offense, the criminal case must be brought before the victim’s 28th birthday:
    • Rape
    • Sodomy
    • Lewd and lascivious acts with involving children
    • Continuous sex abuse of a child
    • Oral copulation
    • Forcible acts of sexual penetration

A criminal case is not the only available avenue for legal action. A civil lawsuit against the perpetrator of child sexual abuse is an additional legal remedy available to victims.

A civil claim can be critical to help heal the emotional, physical, and psychological injuries that can haunt survivors of child sexual abuse well into adulthood. Plaintiffs in a civil lawsuit may seek money damages for trauma and emotional distress, hospital bills, and expenses associated with ongoing psychiatric therapy.  Depending on the severity of the defendant’s conduct, punitive damages may also be available. Punitive money damages are extra money damages intended to punish the defendant.

As discussed below, many factors contribute to building a successful sex abuse case in civil court. It is important to understand that claims involving child plaintiffs pose unique challenges and should be brought only by lawyers for child molestation victims who have experience handling such sensitive cases.

Building a civil case

To succeed in a civil child sexual abuse claim, the plaintiff must prove to the court that the statutorily defined sexual molestation occurred, that the plaintiff suffered injury, and that defendant’s act or failure to act was a direct and proximate cause of the injury. As minors are barred from directly suing in court, the claim must be brought on their behalf by an adult guardian.

The first and most important building block in constructing a successful case is ascertaining whether the claim is procedurally valid and brought within the appropriate statute of limitation in the jurisdiction. Many states have enacted special, extended statutes of limitations for childhood sexual abuse cases. The majority of these “delayed discovery” statutes allow claims to be brought within one year of the plaintiff’s eighteenth birthday.

Many jurisdictions, including California, have gone even further to accommodate civil child sexual abuse claims.  In California, plaintiffs have until the age of 26 to bring an action for child sexual abuse. A plaintiff can sometimes bring a claim at a later age if he or she can prove that the action is being brought within three years of the date that he or she reasonably should have discovered the abuse. As generous as these procedural rules are to plaintiffs, delayed discovery cases can be difficult to win. The passage of time may erode memories, cause physical evidence to be lost or destroyed, and make witnesses unavailable because of death or relocation.

The second building block in bringing a successful claim is deciding which person or party to sue. Claims can be brought directly against the perpetrator of the abuse. It is also possible to sue third parties that were responsible for the child, were aware or should have been aware that the abuse was occurring, and failed to take preventive or remedial action to protect the child. Possible third-party defendants include institutions such as schools, summer camps, churches, and sports organizations if the abuse was perpetrated by a teacher, counselor, member of the clergy, or coach. Bringing a suit against an institutional defendant is often a good option if the direct perpetrator is financially incapable of satisfying a judgment.

Perhaps the most difficult building block is gathering sufficient evidence to prove by a preponderance of the evidence every element of the cause of action.  These elements include the occurrence of abuse, the liability of the abuser or entity that failed to prevent the abuse, and the physical, emotional, or psychological harm that was caused. Child sex abuse cases can be very difficult to prove, largely because of the nature of the offense. Acts of sexual abuse are difficult to detect, often because there are no witnesses aside from the victim, and in cases of prolonged abuse, no identifiable physical injuries.  In such situations, the testimony of the child witness may be the only evidence, and the plaintiff’s credibility becomes the central issue.

Many states have enacted special exceptions to evidentiary rules that address situations where a child’s out-of-court  statements about abuse are rendered inadmissible in court for lack of credibility.  The hearsay exception for child abuse victims is an important evidentiary reform because it rejects the idea that a child’s complaints of abuse are inherently suspect and that they require strict corroboration by additional evidence. Courts have instead recognized that the trustworthiness of a child’s hearsay statement depends on a totality of the circumstances analysis that considers the context surrounding that statement. Such reforms address the unique need in a child sexual abuse case for allowing the victim’s statements to be admitted in court.

Gathering the evidence

What types of evidence can be used to prove the elements of a child sexual abuse claim? The testimony of the plaintiff about the abuse will often be the primary evidence that the abuse occurred. Out-of-court statements by the plaintiff, recorded in interviews and depositions, will play a central role, as will the plaintiff’s in court testimony if the case proceeds to trial. Other direct evidence can also be presented in the form of eyewitness accounts of people who may have witnessed the abuse, accounts of people to whom the plaintiff disclosed information concerning the abuse, accounts of other people who have been abused by the same defendant, and in certain cases, documented medical evidence of the abuse.

Expert witnesses are often invaluable in proving the existence and extent of emotional and physical injuries. Testimony about the nature of sexual abuse by doctors, therapists, social workers, and other professionals may be offered to explain or prove a child’s behavioral patterns, psychiatric reactions to the abuse, or physical injuries caused by the abuse.  Because the emotional, mental, and to a lesser extent, physical injuries sustained by the plaintiff are almost always at issue in sex abuse cases, the plaintiff may be subjected to an independent medical examination, where the defendant chooses a medical or psychiatric professional to interview or perform tests on the plaintiff. In some jurisdictions, such exams may be court-ordered.

Moving forward

Civil sexual abuse lawsuits are critically important in addressing the unique injuries victims of child sex abuse suffer. Civil cases can provide much-needed compensation for the lifelong mental and emotional injuries associated with sexual abuse. Though the road to recovery is long, the legal remedies available in civil courts are a positive step in the healing process.