Damages in Rape and Sexual Abuse Cases
By: IRA H. LEESFIELD
2350 South Dixie Highway
Miami, Florida 33133
Civil suits are increasingly pursued by victims of rape and sexual abuse to procure "justice" and vindication that the criminal courts may not provide.(1) Consent being the dominant defense, it is often difficult for prosecutors to meet the strict "beyond a reasonable doubt" requirement for criminal conviction. According to the California Bureau of Criminal Statistics, from 1983 to 1988, of 15,373 arrests for rape, only 7,253 yielded convictions(2). The lesser "preponderance of the evidence" requirement, however, allows victims to recover in civil court even when their assailants have been acquitted(3), or have never prosecuted criminally(4). As such, plaintiffs attorneys must familiarize themselves with effective methods of presenting these cases to jurors.
II. Who to sue, and under what theories?
Rape or sexual abuse is a classic intentional tort. A civil suit against the assailant can be brought under theories of assault, battery, false imprisonment and/or intentional infliction of emotional distress(5). As with all intentional torts, an assailant with many assets is always the best target. Not only does this make proof of liability less difficult, thus increasing the chance for recovery, but usually also gratifies the plaintiff/victim through direct confrontation and retribution. Additionally, jurors are likely to award larger recoveries against intentional tortfeasors based on the egregious nature of their actions(6).
B. Third Parties
Civil suits against third parties are based on negligence, and have been effectively waged against landlords(7), renters(8), innkeepers(9), employers(10), businesses(11), government entities(12), schools(13) and hospitals(14). They involve allegations such as failure to exercise reasonable care in maintaining property, negligent security, and negligent hiring or retention of employees.(15)
C. Consortium Claims
In addition to pursuing a traditional loss of consortium claim, you should also consider, where appropriate, filing an additional claim for intentional infliction of emotional distress on behalf of the victim's spouse.(16)
A. Alcohol and Drugs
If information that your client was on alcohol or drugs at the time rape or sexual abuse occurred is likely to come out, make sure to disclose this fact early. Prepare members of the jury during voir dire so that they are open-minded and not surprised. Remind jurors that just because an individual uses drugs or alcohol does not mean that they deserve to be victimized by a brutal crime.(17)
B. Past Sexual Conduct
Because most states have adapted rape shield laws which protect rape victims against irrelevant prying into their personal lives, the attempt of any defendant, in any case involving rape or sexual abuse, either criminal or civil, to admit evidence relating to the past sexual conduct of an alleged victim, should always be denied.(18)
IV. Illustrating Damages
A. Rape Trauma Syndrome
The most prominent study on the effects of rape was conducted at Boston City Hospital, the results of which were published in 1974(19). A collaborative effort with the Boston College School of Nursing, this study identified "Rape Trauma Syndrome" as "the acute phase and long-term reorganization process that occurs as a result of forcible rape or attempted forcible rape"(20). Review of this study provides a detailed yet concise introduction to the manifestations of rape, which include physical trauma such as soreness and bruising; skeletal muscle tension such as headaches, fatigue and sleep pattern disturbances; gastrointestinal irritability such as vaginal discharge, infections, itching or burning sensations; and emotional reactions such as fear, humiliation, embarrassment, anger, revenge, and self-blame(21).
"Traumatophobia"(22) is an additional manifestation, including fear of indoors, fear of outdoors, fear of being alone, fear of crowds, fear of being followed, and/or sexual fears(23). Also discussed are suggested methods of treatment and counseling for victims of rape. It is imperative that an attorney understand the complexity of these manifestations in order to effectively present the issue of damages to the jury.(24)
B. Evidentiary Barriers/Experts
Employing a "Rape Trauma Syndrome" expert is an easy and effective method of presenting your case. Unfortunately, this has been the subject of much judicial scrutiny.(25) Some courts are unwilling to accept a "Rape Trauma Syndrome" diagnosis as reliably showing that a rape occurred, not admitting experts based on fear that this may foster prejudice(26). They point out that research on "Rape Trauma Syndrome" is designed for the purpose of crisis intervention and counseling, not as an investigative tool in determining the reliability of rape allegations. Other courts have allowed these experts with some restrictions.(27) They point out that the Federal Rules of Evidence allow for expert testimony on matters not within the common knowledge of jurors(28), arguing that jurors do not truly understand psychological reactions to rape and should be educated to better serve their function(29). In these jurisdictions, a "Rape Trauma Syndrome" expert should be used to support your liability argument.
It should be noted that most opinions restricting the use of "Rape Trauma Syndrome" experts were rendered in criminal courts. As such, many of these holdings can be limited in their application to civil cases(30). Restraining a plaintiff's presentation of a prima facie case is obviously prejudicial. Because plaintiffs' rights are not weighed on the same scales in criminal court, it is likely that the probative value of such expert testimony would shift the balance in favor of admission in civil cases.
C. General Use of Experts
Nothing in the "rape trauma syndrome" cases exists to preclude presentation of experts on the emotional and psychological trauma suffered by your client(31). Because people tend to have an inherent mistrust of psychological damages, it is essential to have your client's mental therapist or another mental health professional provide a detailed psycho-social assessment of your client's diminished ability to function within family, work and social relationships.(32) Additionally, it must be remembered that "if plaintiffs' lawyers are to recover adequate monetary damages for emotional claims, they must establish that psychiatry and psychology are reliable medical sciences and convince the jury that treatment by, or a referral to, a psychiatrist for psychic injuries is as acceptable and valid as a referral to an orthopedist for a leg fracture. Jurors must understand that invisible injuries can still leave scars on the soul."(33) For a detailed discussion of the parameters of expert testimony, see Delia S. v. Torres, 134 Cal.App.3d 471, 184 Cal.Rptr. 787 (Cal.1982)(34).
D. Punitive Damages
Exemplary damages are clearly warranted against an assailant whose intentional conduct causes severe emotional distress. Psycho-social evaluations can help to strengthen punitive damages claims by focussing on the negative impact that the defendant's outrageous conduct has had on the victim.(35) Punitive damages may also be appropriate against grossly negligent third-parties whose conduct demonstrates reckless disregard for the lives of others.
E. Courtroom Strategy: Seven Steps To A Favorable Verdict(36)
1. Set the stage for acceptance of psychological damages by emphasizing the brutal physical impact which occurred.
2. Have the examining physician, when applicable, take the stand first to discuss the nature of your clients physical injuries and the justification for a referral to a mental therapy professional.
3. Have the treating mental therapy professional, when applicable, take stand to discuss the objective signs of plaintiff's injuries, the basis for diagnosis, and the legitimacy, necessity and validity of treatment.
4. Introduce key behavioral witnesses such as family, friends and co-workers, to discuss the attitude and behavior of your client before and after the incident (due to the personal nature of this testimony, you may want to have your client leave the courtroom during this presentation).
5. Present an independent forensic-psychiatrist, or "rape trauma syndrome" expert, to provide definitions, and discuss the effect of trauma on the everyday life of your client, emphasizing the necessity for long-term care, if applicable.
6. Present a neurologist to discuss your client's quantitative mental disability.
7. Present the plaintiff as the final witness.
Civil suits against assailants and third-party tortfeasors can provide appropriate remedies to victims of rape and sexual abuse. Not only does this enhance the prospect for healthy victim recovery, it also may deter crime. By carefully plotting your presentation of witnesses, an effective trial strategy can be employed, maximizing the chances for a substantial verdict.
1. Epstein, "Legal Aids", The Student Lawyer, March 1988 at 51.
3. See Manley, "Civil Compensation for the Victim of Rape", Cooley L.R., 7:193 1990 at 201.
4. See Delia S. v. Torres, 134 Cal.App.3d 471, 184 Cal.Rptr. 787 (Cal.1982).
5. See Restatement (Second) of Torts, Sections 13 and 46.
6. Recoveries up to $10 million have occurred, see Epstein, supra, note 1.
7. Kline v. 1500 Mass.Ave.Apartment Corp., 439 F.2d 477 (D.C.Cir.1970).
8. Tershin v. State, No.81-2-13811-0 (Wash., King County Superior Court, June 1, 1983)(reported at 26 ATLA L.REP. 417 (Nov.1983)).
9. Garzilli v. Howard Johnson's Motor Lodges, Inc., 419 F.Supp. 1210 (E.D.N.Y. 1976).
10. Manley, at 204.
11. Salinas v. Fort Worth Cab & Baggage Company, Inc., 725 S.W.2d 701 (Tex.1987); and Morris v. Yogi Bear's Jellystone Park, 539 So.2d 70 (La.Ct.App.1989).
12. Miller v. New York, 62 N.Y.2d 506, 467 N.E.2d 493, 478 N.Y.S.2d 829 (1984).
13. Manley, at 205.
14. Alphonso v. Charity Hospital, 413 So.2d 982 (La.Ct.App.1982).
15. For an in depth discussion of cases against third parties in general, see Manley, at 204; and Loggans, "Rape as an Intentional Tort: First and Third Party Liability", Trial, October 1985 at 45. For cases against property owners, see Queller and Horowitz, "Rape and Assault Cases", Trial Lawyer's Quarterly, 18:4 1987 at 27.
16. See Delia S., supra, note 4, where "the rape victim's husband was properly permitted to recover for the intentional infliction of emotional distress, where it could be inferred that the rape...had profound and extreme emotional consequences for the husband. Thus, the wrong for which recovery was sought was personal to the husband," 134 Cal.App.3d at 474.
17. Giacopassi and Wilkinson, "Rape and the Devalued Victim", 381.
18. According to Delia S., supra, note 4, "The rationale underlying the exclusion of [evidence relating to the victim's past sexual conduct] on the issue of consent in criminal proceedings is equally applicable to civil litigation; i.e., the purported victim's past sexual conduct with men other than the defendant has slight relevance, at best, to the issue of consent." As such, the Court upheld the trial court's refusal to admit evidence of this nature.
19. Burgess and Holmstrom, "Rape Trauma Syndrome", American Journal of Psychiatry, 131;9, September 1974 at 981.
20. Id. at 982.
21. Id. at 984.
22. A term coined by Sandor Rado in his study of war victims, "Pathodynamics and Treatment of Traumatic War Neurosis", Psychosomatic Medicine, 4:362 1948 at 368.
23. Burgess and Holmstrom, at 984.
24. For a more detailed discussion on rape trauma syndrome, including further research and recent developments, see Schnepf, "Rape Trauma Syndrome in the Rape Trial", Criminal Justice Journal, 8:427 1986 at 429-432. Additional studies on the effects of rape include Calhoun, et al., "Victim Emotional Response: Effects on Social Reaction to Victims of Rape," 20 British Journal of Social Psychology, (1981) at 17; Williams and Holmes, The Second Assault (1981) at 82-86; "Special Features; Assessment and Treatment of Rape Victims," 36 The Clinical Psychologist, 88 (Summer 1983); Ferris,"Long Term Consequences of Adult Rape," Response, A Publication of the Center for Women's Policy Studies (Jan.-Feb., 1983, at 5-6); McCahill et al., The Aftermath of Rape, (1979); Fox and Scherl, "Crisis Intervention With Victims of Rape", 17 Social Work 37 (January 1972); see also State v. Marks, 647 Kan. 645, 647 P.2d 1292,1298-1300 (1982).
25. See generally, Schnepf, "Rape Trauma Syndrome in the Rape Trial", Criminal Justice Journal, 8:427 (1986) and Fischer, "Defining the Boundaries of Admissible Expert Psychological Testimony on Rape Trauma Syndrome", Univ.Ill.L.R., 1989 at 691.
26. People v. Bledsoe, 681 P.2d 291 (Cal.1984); State v. Taylor, 663 S.W.2d 235 (Mo.1984); State v. Saldana, 324 N.W.2d 227 (Minn.1982); State v. Black, 745 P.2d 12 (Wash.1987); Commonwealth v. Gallagher, 510 A.2d 735 (Pa.Supr.1986).
27. People v. Reid, 475 N.Y.S.2d 741 (1984) (with instructions, expert not permitted to testify whether he or she believes the victim); Division of Corrections v. Wynn, 438 So.2d 446 (Fla.App.1Dist.1983); State v. Marks, 647 P.2d 1292 (Kan.1982); Goodwin v. State, 1991 WL 115534 (Ind.App.3Dist); People v. Hampton, 728 P.2d 345 (Colo.App.1986); People v. Harp, 550 N.E.2d 1163 (Ill.App.4Dist.1990); State v. McCoy, 366 S.E.22d 731 (W.Va.1988); State v. Gettier, 438 N.W.2d 1 (Iowa 1989).
28. See Federal Rule of Evidence 702.
29. See Burt, "Cultural Myths and Supports for Rape", 38 Journal of Personality and Social Psychology, (1980) at 217, 229; and Delia S., 134 Cal.App.3d 471, 478-479..
30. In Bledsoe, 681 P.2d at 301, for example, the court states that "[rape trauma syndrome testimony] may not properly be used ...in a criminal trial," not precluding admissibility in a civil action. It must also be noted that Delia S., 134 Cal.App.3d 471, was not overturned by Bledsoe, further strengthening an argument for admissibility.
31. According to Bledsoe, 681 P.2d at 301, "...nothing in this opinion is intended to imply that evidence of the emotional and psychological trauma that a complaining witness suffers after an alleged rape is inadmissible in a rape prosecution."
32. See Cartwright and Kassel, "Evaluating Emotional Damages", Trial, May 1988 at 77.
33. Robertson, "Emotional Damages: The Law and Strategy of Psychic Damages Litigation", Trial, November 1987 at 99.
34. In Delia S., supra, note 4, the Court ruled that "the reactions of rape victims and the varying motivations and personality characteristics of rapists are not subjects within the common knowledge of jurors and thus may be the subject of expert testimony when relevant." According to the Court, "the trial court properly admitted expert testimony as to rape victims' reactions, where the ultimate issue was one of witness credibility and where the expert testimony provided a background against which the jury could assess the relevance of the defense theory that the victim's conduct was inconsistent with that of a rape victim". The Delia S. court also admitted expert testimony relating to the motivations and personality characteristics of rapists. See also King, "Survey: Women and California Law", G.G.L.R., 13:787 Summer 1983.
35. Cartwright and Kassel, at 79.
36. Adopted from Robertson, at 103.