CLAIMS OF SEXUAL ASSAULT IN A CARE FACILITY

Bringing A Claim For Sexual Assault In KansasMost people are aware of the criminal liability that follows a sexual assault. In criminal court, criminal prosecution is the mechanism to hold someone criminally liable for sexual assault. However, the victim can bring a civil suit against the individual to collect expenses to redress medical bills, lost income, and pain and suffering. Below is a brief overview of what types of legal claims are available to compensate for personal injuries suffered from sexual assaults. Unfortunately, sexual assault is common in some poorly run adult healthcare facilities.

Battery ClaimsUnder Kansas law, sexual assaults will constitute civil battery. Unfortunately, common usage of “assault” has taken on the meaning of what is legally “battery.” A battery is harmful or offensive touching of the plaintiff by the defendant. In contrast, an “assault” under the law is the threat of a battery. Compensation for the assault is directed at redressing the fear the plaintiff is placed in, while damages for battery compensates the physical contact. If the contact is proceeded by the threat of contact, even if very brief, a plaintiff can recover for both assault and battery. Battery covers a wide range of unwelcomed touching, including groping to full sexual intercourse. There is no requirement that the touching be painful or medically harmful. The fact that it the touching is unwanted is enough—that the contact is offensive.

A major issue in most sexual assault cases is consent. Consent is an affirmative defense to a claim of battery. However, consent is limited in scope. The scope of consent is the outer limits of what a plaintiff agreed to, as determined based upon the facts of each case. For example, a woman may agree to go out with a man and even asking him for a good-night kiss. By doing so, the woman is clearly not consenting to the man groping her. If the man does, he would exceed the scope of the consent and be liable for battery against the woman. However, most couples do not lay out clear boundaries before becoming physical—though this is changing in the modern world. For instances where consent is not express, it may be implied.

Implied consent is even thornier than express consent. For implied consent, the scope of consent must be determined by the behaviors and facts surrounding the occurrence because the parties do not verbally set out boundaries or give permissions. For example, a woman may begin kissing a man, but resist any further advances such as touching. If the man ignores the woman’s resisting and touches her anyway, the man has exceeded her implied consent. This can be inferred from the resisting by the woman, as well as any other facts or actions known to the man at the time of the assault. The key is what the defendant subjectively believed—what the defendant actually had in his or her mind—and that this belief was objectively reasonable—a normal person in the same circumstances would agree with the belief. Obviously, in the case of sexual encounters this inquiry can be very revealing and embarrassing. This unfortunately can lead victims to be reluctant to bring forth claims for sexual assaults (as well as difficult for the state to prosecute such actions in the criminal context).

Property Owner’s Liability For Sexual Assaults By OthersProperty owners have a duty to warn or protect guests on their property from foreseeable dangers. In Gould v. Taco Bell and Gardin v. Emporia Hotels, Inc., Kansas courts held that property owners—both businesses and private residents—can be liable for assaults by third-parties on the property. They key for this liability to attach is notice—whether actual notice or “constructive” notice—possessed by the property owner. The property owner must have reason to anticipate the assault and fail to exercise reasonable care to reduce the likelihood of assaults or altogether prevent them. This requirement of notice generally means that the sexual assault can’t be the first. However, if the property owner’s actions are egregious and the likelihood of an assault are plainly obvious, a property owner may be on enough notice to create liability even for the first sexual assault to occur. An example of this would be failing to provide any locks on the doors of dorm rooms in a co-ed dormitory. The danger of a sexual assault is likely so obvious in such a situation that even absent a prior assault, the property owner would be on notice of the need to provide protection to residents. More commonly, a series of assaults will place a property owner on notice that additional safeguards are needed for the safety of guests.

These claims can be particularly important to ensure redress for injuries can be secured. First, the action that is brought against the property owner is a claim of negligence—an entirely different claim than that of battery brought against the perpetrator of the sexual assault. The wrong being redressed by the negligence claim is the failure of the property owner to honor a legal duty owed to guests of the property; the wrong being redressed by the battery claim is the actual sexual assault by the defendant. A second important consideration is the ability of the property owner to satisfy a potential judgment. The defendant that commits a sexual assault is committing an intentional tort that is unlikely to be covered by any insurance policy. This means that only the assets of the defendant him- or herself will be available to compensate the victim—and these assets may be little to nothing. Property owners are more likely to have assets or insurance to satisfy a judgment. Property insurance generally covers claims for negligence brought under a premise liability theory, such as failure to warn or protect from sexual assaults. Even absent insurance coverage, the property owner at the very least has one asset: the property itself.

Sexual assault is an extremely traumatic experience. The physical and emotional injuries brought about by such an assault can be devastating; medical treatment and psychological treatment can be very expensive and the victim may never fully recover. The law recognizes that the responsible party or parties should be liable for these wrongs and expenses. If you have experienced a sexual assault, it is important to contact experienced legal counsel. An experienced attorney will not only ensure full recovery for the harm you have suffered, but also ensure recovery is obtained in the least evasive manner possible.