Redefining Sexual Abuse Liability
Pelland, Dave, Risk Management
As the traditional definition of sexual abuse is being expanded by new court decisions and state legislation, more companies and nonprofit organizations are recognizing a need to bolster their policies and procedures. Once-common practices such as trying to ignore or cover up abusive behavior is increasingly being perceived not just as bad management, but also as negligent behavior.
According to attorney Donald Clark of the Chicago firm Clark and DeGrand, companies and nonprofit agencies are being measured against a new legal definition that extends beyond traditional notions of sexual abuse. Formerly an issue that focused exclusively on behavior, usually under criminal battery statutes, today's definition, of sexual abuse focuses on the improper use of authority. "Liability for sexual abuse is expanding beyond specific acts to include any sexual behavior that causes harm or takes place in a context where a duty to another may be found. Behavior that may not be considered a criminal act may give rise to a liability claim."
Mr. Clark said courts are increasingly willing to hold people who are in positions of trust and authority accountable for their actions--and are more willing to entertain negligence claims against organizations that grant authority.
"If an institution conveys power to an individual, the law will hold that institution responsible for doing so prudently," he said. "That's why negligent hiring and supervision are the fastest growing claims related to sexual abuse and exploitation. And it's also why more state legislatures are imposing reporting requirements and mandating background checks."
In a development he compared to products liability litigation, Mr. Clark said plaintiff attorneys increasingly call upon a group of experts to describe standards of care within a defendant's industry. These witnesses describe the measures adopted by industry leaders, such as background checks and pre-employment screening, and cite any lack of such measures as proof of negligence. "They will try to prove institutional responsibility and try to push liability up the pyramid," Mr. Clark said.
Among the types of organizations that have been hit the hardest by allegations of sexual abuse are religious institutions, youth organizations, day care centers, school districts and health care providers. James Randall Noblitt, a psychologist practicing in Richardson, Texas, said about 4,000 therapists are sued annually in the United States for allegations related to sexual abuse. …