Pennsylvania
Civil Remedies for Sexual Misconduct and the Lack of Civil Pursuit.
G. Lawrence DeMarco -- Page of 1
Copyright © 2002 DeMarco & DeMarco, PC. All rights
reserved.
Pennsylvania Civil Remedies for
Sexual Misconduct and the Lack of Civil Pursuit
By: G. Lawrence DeMarco
DeMarco & DeMarco, P.C.
Introduction
Did you know that one in four women in North America were molested
in childhood?[1]
• There are 1.7 million reports of child abuse each year.[2]
• Approximately one in seven males will have been sexually
molested before the age of 18.[3]
• 51.9% of U.S. women and 66.4% of U.S. men have been
physically assaulted by an adult caretaker as a child.[4]
• Most victims of sexual misconduct suffer an identifiable
emotional injury causing ongoing limitations.[5]
• Courts permit lawsuits for sexual misconduct. These
claims are insured by homeowner’s insurance where an “accident”
is caused by “carelessness.”
Across
America, lawsuits based upon domestic and sexual violence are
increasingly common. Courts and juries alike, across the country
and in Pennsylvania, are awarding substantial verdicts to these
victims based upon a theory of carelessness, or “negligence”
in lawyer-speak. The most important factor for a personal injury
lawsuit is a home owners’ or other insurance policy to
pay the jury verdict or settlement. With few exceptions, without
insurance, there is no money to pay for the lawsuit.
The
Theory
Most insurance policies cover “personal injury”
or “bodily injury” arising out of an “occurrence”.
An “occurrence” is “an accident, happening
or event . . . (including) repeated exposure to conditions which
. . . results in personal injury... during the policy period”[6]
The law supports emotional injuries within this definition.
A homeowner’s insurance policy covers emotional damages
sustained by a victim sexually or physically abused under a
widely underused theory, “negligent Infliction of emotional
distress.” To pursue a claim under this theory, the victim
must prove physical harm or objectively measurable damages from
the emotional distress, such as psychiatric or psychotherapy
bills for treatment for medically diagnosed injuries.
Current high profile news events like the Catholic Priest sexual
abuse scandals and the corresponding personal injury lawsuits
have reinforced the well known fact amongst doctors, psychiatrists,
and counselors: sexual abuse causes severe emotional injury.
The negligent or intentional infliction of emotional distress
claim has been practically ignored by the legal community but
has been gaining increased recognition. Rachel Zoll of the Associated
Press reported that at least 300 civil lawsuits alleging clerical
sexual abuse have been filed in 16 states since January of 2002,
when the case of a pedophilic priest in Boston spurred claims
against Roman Catholic dioceses across the United States.
Although priests have become the brunt of jokes because of the
child molestation scandal, sexual abuse frequently occurs within
the home. Sadly, the victim often does not seek desperately
needed therapy and treatment because of financial hardship and
the lack of health insurance resulting in an untreated serious
health condition and years of suffering.
Pennsylvania Law
In certain circumstances, the law in Pennsylvania permits victims
of sexual misconduct to obtain significant monetary compensation
from the homeowner's insurance policy of the guardian of the
plaintiff. Unfortunately, an abuse victim cannot recover insurance
benefits from a lawsuit directly against the molester because
all homeowner's insurance liability policies contain an exclusion
for intentional and criminal acts. Another exclusion in all
homeowner’s insurance policies is for claims by a resident
of a household against another resident of the household.
Without insurance, a lawyer will not pursue a lawsuit directly
against the molester because there will be no money to pay any
judgment and the extreme expense to bring a claim. However,
two separate circumstances involving the "negligent infliction
of emotional distress" theory have triggered homeowner’s
insurance coverage and fueled lawsuits for emotional injuries
in a manner which may be surprising.
Examples of How it Works
The careless guardian who “looks the other way.”
Example #1: Aunt Jane baby-sits little Lisa during the week
while mom and dad go to work. Aunt Jane's boyfriend, Ernie,
watches little Lisa while Aunt Jane goes shopping, and while
away, Ernie molests Lisa. Mom can sue Aunt Jane in-trust for
her daughter for her carelessness in failing to protect Lisa
from Ernie, and Aunt Jane's homeowner's insurance pays for the
defense and the judgment. Although Ernie goes to jail and perhaps
also gets sued for committing the crime against Lisa, the existence
of Aunt Jane's homeowner's insurance pays for her legal bills
and satisfies the judgment. The only recovery against Ernie
would come from the proceeds of the sale of his home, if and
only if he owns his own home and when he agrees to sell.
Example #2: Mom and dad are divorced and sadly, dad turns to
drugs and alcohol to console him during his depression from
the divorce. Dad gets custody of blossoming 11 year old daughter
Jill on weekends, who reaches puberty early and befriends 16
year old Dirty Ernie, Jr. Jill involves herself in an abusive
and sexual relationship with Dirty Ernie, who rapes and beats
Jill while Jill is out until 3 a.m. because Dad is too high
to supervise her. Provided that Dad still owns his home, Mom
can sue her ex-husband in trust for her daughter up to the limits
of Dad’s homeowner’s insurance policy without taking
his home.
Numerous variations of the same scenario involving domestic
and/or sexual abuse can occur with family friends, grandparents,
foster parents, boys, or girls. In order for an insurable claim
based upon emotional injury, you need: 1) a guardian who is
careless in failing to protect a vulnerable minor child; and
2) an insured home owned by the guardian without the child (or
separate guardian of the child) being on the same policy, i.e.,
residing in the same home.
The Careless Harmful Touching
Some specific circumstances can also implicate homeowner’s
insurance of the person who commits the sexual assault himself.
A Federal Appellate Court obligated a college student's parents'
home owners' insurance policy to defend him against a negligence
claim filed against him by another student as a result of sexual
relations with her while both were intoxicated and in his dormitory.
In Aetna v. Barthelemy, a male Penn State University student,
Michael Barthelemy, promised a virgin female student, Ms. McSparran,
that he would give her a compact disc if she drank several shots
of rum. He told her that rum was no more intoxicating than beer
and served her several shots until she became drunk and got
sick. The two students then had sex. In McSparran’s Complaint,
she alleged negligent or reckless infliction of emotional distress.
In his Answer, Barthelemy alleged that the sex was consensual.
McSparran did not allege that Barthelemy used force of violence,
and she did not claim that he raped her. Moreover, McSparran
asserted in each count that Barthelemy did not expect or intend
that his conduct would cause the specific injuries that she
suffered as a result of his conduct.
The Court handled McSparran’s claim against Barthelemy
the same manner in which an insurance company would handle a
claim in which a person slipped and fell while walking down
a snowy and un-shoveled walkway. In finding against the insurance
company, the Court stressed that there was no allegation that
a crime was committed. The implications of this case are extensive
because the number of ways that male carelessness results in
non-consensual sexual relations is immeasurable.
The Conclusion
The legal theory of “negligent infliction of emotional
distress” is infrequently used and often overlooked by
the legal community because of the uncertainty of and prejudice
against psychological and mental injury. Indeed, regarding workers’
compensation claims, Pennsylvania Courts have been so strict
against mental injuries that they have almost judicially legislated
such claims out of the Workers’ Compensation Act. However,
in most instances, the damaging effect of sexual abuse is so
crippling to a child that a capable mental health provider along
with a family physician should be able to meet the criteria
for a compensable emotional distress claim.
Society learned from OJ Simpson that where the criminal system
cannot provide justice, the civil system can provide compensation.
Society continues to become more aware of the unpleasant reality
of domestic and sexual misconduct and the Courts recognize this
truth. Awareness of the relationship between homeowner’s
insurance, negligence theory of law, and emotional injury can
provide necessary benefits for the neediest and most vulnerable
members of society– children who have been betrayed by
a molester and have sustained severe emotional injury. It is
up to the person who suffers from such abuse or the person who
knows that a minor suffers from such abuse to make sure they
seek both medical and legal assistance.
[1] Dickenson, L.v Verloine deGruy F., Dickinson, W.P., and
L. Candib. Health-Related Quality of Life and Symptom Profiles
of Female Survivors of Sexual Abuse. Arch Fam Med. 1999; 8:35-43.
[2] American Medical Association. Diagnostic and Treatment Guidelines
on Mental Health Effects of Family Violence. American Medical
Association Web Site.
[3] Delaplane, D. and A. Delaplane. Victims of Child Abuse,
Domestic Violence, Elder Abuse, Rape, Robbery, Assault, and
Violent Death: A Manual for Clergy and Congregations. Special
Edition for Military Chaplains.
[4] Tjaden, Patricia and Thoennes, Nancy. U.S. Department of
Justice Full Report of the Prevelence , Incidence & Consequences
of Violence Against Women. Nov. 2000; Key Findings.
[5] Burnett, Lynne Barkley (EdD, MS, LLB) and Adler, Jonathan
(MD). E-Medicine.com Domestic Violence. July 10, 2001
[6] Slezak, Walter T., and Sugayan, Catherine J., Sexual Misconduct
Claims (American Re-Insurance Company, 1998).
