The Double Standard in Child Sexual Abuse
July 14, 2006
OREGON'S TORT CLAIMS LAW
Matthew, a 12-year-old altar boy, was sexually abused by his priest. At age 22, he recognized the harm that had been done and sued the church.
Allison, an eighth-grader, was sexually abused by her schoolteacher. She recognized the harm that had been done three years later and sued the school district.
But there's a world of difference in their two cases. The chance of a child sex-abuse victim in Oregon recovering monetary damages in a lawsuit depends on who the abuser was. The church had to pay; the school district didn't. The difference? Allison was sexually abused by a public employee.
Oregon has a law that protects child sex-abuse victims. Recognizing that the detrimental effects of abuse can take many years to surface, the law allows a victim to file a lawsuit either by age 24 or three years after recognizing the harm -- whichever is later.
But if the abuser is a public employee, different rules apply. To sue a public entity, Oregon's Tort Claim Act requires a person to give notice of that claim within six months of the offense or to forever lose the right to sue.
Take a minute to think about that. Imagine that an 11-year-old boy is sexually abused by a gym teacher. Twenty years later, he finally realizes that the reason for his low self-esteem and depression stems from his abuse as a child. In Oregon, the courthouse door is closed to him if he wants to pursue a sex-abuse claim under state law. That's ridiculous.
Oregon's Court of Appeals has ruled that it doesn't matter if the injury happened to a minor child -- the Tort Claim Act takes precedence over the sex-abuse law. The court recognized the unfairness of this outcome, saying "this is a case in which the technically correct legal result does a great disservice to children."
Not many 13-year-olds could overcome their guilt and confusion and have the presence of mind to discuss such an incident, let alone report it, within six months that it happened
The Tort Claim Act does have one exception for children. A notice does not need to be sent if the child victim is in state custody at the time of the harm. That means a child who is sexually abused by a state employee in a youth correction facility, for instance, can bring a claim years later. But a child who is sexually abused by a state employee while attending elementary school cannot -- unless the notice has been sent.
Recently, two high-profile cases involving the Boy Scouts police Explorer program have highlighted the effect of this legal disparity. I represented a young woman who was sexually abused by four police officers when she was a minor and participating in the Tualatin Police Department's Explorer program. The other case involved a boy Explorer with The Dalles Police Department who was sexually abused by one of the officers.
There was never any doubt in either case that the abuse occurred and that the children were harmed. But because neither Explorer sent a tort claim notice within six months of the abuse, they were forever prevented from having a successful sex-abuse claim under Oregon law. Both victims had to look to other, less-certain legal theories to pursue their claims. The boy initially won a verdict of several hundred thousand dollars, but the Court of Appeals reversed that verdict based on the other legal theory that was presented. My client decided to settle her case for significantly less money than she would have received if she had been abused by a nonpublic employee.
But the issue isn't how much money can be recovered. It's that sex-abuse victims don't have an equal way to pursue their rights and hold their abusers accountable. Inadvertently, the Oregon Legislature and courts have created a double standard in how our kids are protected. That has to change.
The Legislature needs to amend the Tort Claim Act and create an exemption for all children so that child sex-abuse victims will be given equal protection.
Dennis Steinman is an attorney with Kell, Alterman & Runstein in Portland.
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