Hidden Harm and the Short Reach of Traditional Tort Remedies

Justia [Mountain View CA]

January 5, 2022

By Kathryn Robb

Not all civil wrongs are the same. There are, of course, the classic ‘slip and fall’ and fender bender claims, and then there are the more catastrophic harms. Whether negligence, battery, intentional infliction of emotional distress, or trespass—there are degrees of egregiousness in the land of civil justice. Most would agree that none are as bad as the harm to children, especially negligent or intentional abuse of children, where the complicated and lasting damage of trauma transforms the neurobiology of the whole child—continuing the injury to young victims well into adulthood.

The thought of children being manipulated and sexually violated is distressing and uncomfortable, especially when the perpetrator is someone they once trusted—a coach, counselor, doctor, religious leader, or even a family member. When the harm is sexual assault and rape, the image stings, and let’s face it, our eyes and minds look away. We just cannot think about it. Nevertheless, there is no rewinding the brain’s film of the story—whether seen in print or nationally televised news. The photos of grown men and sometimes, although rarely, women—Sandusky, Nassar, Epstein, and his now-convicted co-conspirator felon, Ghislaine Maxwell—all feigning their love and support for the children they ultimately abused, often repeatedly. How do we get back to that place before the horrid image was seared into a now stored memory? How do we get back to the picture of the unbroken and uninjured child?

This fight back is a Sisyphean task for most survivors of child sexual abuse. We almost get back, we almost feel normal and whole—then we do not, again and again.

In our civil justice system, victims of tortious conduct have multiple legal remedies in tort law available for the wrongdoing and harm done to them. Plaintiffs who seek the power of civil laws to remedy the horrific sexual abuse they experienced as children often find the path to relief woefully incomplete. The loss victims experience is endless, and the stain is stubbornly permanent. As shown by the seminal work of Bessel van der Kolk, MD, one of the leading experts on childhood trauma in his book The Body Keeps The Score, toxic trauma, especially for children, re-wires the brain and leaves devastating marks on both the mind and body. These symptoms manifest, sometimes behind the scenes, in anxiety, depression, sleep disorders, PTSD, academic and work performance, addiction, and both medical and psychiatric illnesses. Thanks to van der Kolk and others in the field of traumatology, we are beginning to understand the real damages to children.

Common law tort principles and Restatement Second of Torts recognize compensatory, restitution, and equitable remedies for civil wrongs. Tort law frequently allows victims to recover compensatory damages for their losses. Simply stated, compensation is an effort to make the plaintiff whole when considering their past, present, and future damages. These may include medical expenses, pain and suffering, psychological harm, and loss of earnings. These laws on damages are intended to reimburse the plaintiff for the actual loss or injury. The law also allows parties to recover restitution damages; those seek to restore the plaintiff to wholeness based on the gain by the wrongdoer, not the loss to the injured party. The law frowns upon any sort of unjust enrichment to a wrongdoer, especially when the victim loses something of great value. The equitable principle holds that no one should benefit from a wrong done to an innocent party. In the example of the tort of conversion, the civil remedy for theft, equity holds that the thief should not benefit. Civil law also allows equitable remedies for certain torts when money damages are inadequate. These remedies are typically found in temporary restraining orders and injunctions. If the plaintiff can prove likelihood of success on the merits and irreparable harm, the judge can enjoin the ongoing harmful or dangerous behavior of the bad actor. They are commonly granted in tortious trespass and nuisance claims.

How is a victim to be made whole or restored when the irreversible damage is never-ending?

When I was a little girl, a family member would sneak into my bedroom late at night and assault me in the cover of darkness. It started when I was eight years old. I would awaken in the dark of the night to the feel of his body invading mine. These indecent and forbidden assaults went on for many years, resulting in my immediate sleep troubles, sadness, and anxiety attacks. The harm is clear within those words, but what may not be apparent to the reader is that this chilling trespass really never ended. To this day, he still appears regularly in the privacy of my bedroom and within the intimacy of my private and personal relationships; the trespass continues—I am 61 years old.

The shame never ends, and harm never fully heals for adults who were abused as children. This is why so many jurisdictions are reforming their statutes of limitation laws and initiating programs to educate their judiciary on trauma. Thanks to CHILD USA and their valuable evidence-based research, we are beginning to understand the full scope and depth of childhood trauma and how the law must respond.

Survivors know the loss of wholeness and the continued trespass of debilitating and humiliating flashbacks. If only the courts were able to unleash their equitable power, and enjoin the smell, sound, and sight of a predator. Survivors would benefit if the court could issue an order commanding the terrifying memories of the defendant to get out, and stay out, of the land of trauma in the minds of survivors. What sexual predators get when they abuse is not anything survivors want back. Their pleasure is the child’s loss, a loss that continues for a lifetime.

While survivors may lack x-rays of broken bones and the photos of the scars of sutured skin that the law and jurors like to use as a measure of harm, they carry a deeper full-body and mind wound unequal to any other civil wrong. These are not the type of torts tired-eyed law students study in their 1L leather-bound casebooks. These atypical torts come with a wide range of atypical enduring damages in what is becoming, sadly—a more typical claim.

Kathryn Robb, Executive Director of CHILD USAdvocacy, is a lawyer, legislative advocate, and law instructor who has been fighting to pass meaningful child sex abuse legislation for 14 years in multiple jurisdictions.