March 2014 Archives

Liability of Child Welfare Agencies in Foster Care Placement.

According to the United States Department of Health and Human Services, in 2011, at least 1,669 children were maltreated by a foster parent. This maltreatment includes neglect, physical abuse and sexual abuse. However, there were 41,798 cases where the relationship of the perpetrator to the victim was unknown. Furthermore, this only includes cases that were reported to the child's local Child Protective Services Agency. As such, it is possible that this number is even higher than reported. Each county has a local child welfare agency that is in charge of placing children in foster care. Unfortunately, these agencies sometimes place children in a situation that is worse than the situation they are leaving behind. If the local child welfare agency knows that there are problems with a particular foster care placement, such as if one of the foster parents has previously been accused of sexual abuse of a child, and place a child there anyway, then the agency can be liable for negligently placing the child in that situation. Sometimes, the problem is not with the foster parents, but is rather with one of the foster children. If the agency knows that the foster child they are placing has a history of sexually abusing other children, and it places that child in a home that has children living there, including other foster children, then that agency can be held liable in the event that the newly placed child abuses one of the other children.

Civil Lawsuits on behalf of Crime Victims for Inadequate Security

Crime victims and their families should be aware they can recover from businesses on whose premises they or a loved one is assaulted or murdered. These lawsuits can be brought against many types of establishments, including apartment buildings, hotels, shopping malls, convenience stores, concert arenas, or amusement parks. The law requires any business that is open to the public to exercise reasonable care to protect patrons from violent criminals. This often means business owners need to provide adequate security, including guards, metal detectors, or surveillance cameras. If, for example, a shopping mall fails to monitor an unlit parking garage, and a patron is murdered or raped there, the shopping mall's owner may be liable. Before an inadequate security lawsuit against a business will succeed, however, the plaintiff often must show the owner should have reasonably anticipated the crime. In practice, this means a crime victim's lawsuit against a business owner is more likely to succeed if there is a history of crime on the premises. If a convenience store is repeatedly robbed, yet the owner fails to install cameras or hire security guards, and a patron is later shot in the store, the patron's subsequent lawsuit is more likely to succeed.

School District Liability for Teen Sexting

Today, photographs can be shared in an instant through mobile phones via the Internet. Unfortunately, this had led to a growth in "sexting." Now ubiquitous, "sexting" is the act of sending sexually explicit messages and/or photographs, primarily between mobile phones. In fact, In August 2012, the word "sexting" was listed for the first time in Merriam-Webster's Collegiate Dictionary. The phenomenon is particularly prevalent among teens, many of whom naively think it harmless. Sadly, though, "sexting" can have disastrous consequences. The images are sometimes shared with others, and can quickly circulate around a school. In fact, a 2012 study estimated that 88% of self-made explicit images are "stolen" from their original upload location, and made available on other websites, in particular porn sites collecting sexual images of children and young people. The report highlighted the risk of severe depression for those that lose control of their sexually explicit images and videos. There have been several high profile stories of young girls committing suicide after their sexually explicit images were shared. Parents should be aware their child's school may be held liable for failing to curb the dissemination of "sexts" depicting their son or daughter.

Mental Health Care Provider Liability for Sexual Abuse and Assault

Sadly, people with mental handicaps, like psychiatric patients, are often targets of sexual assault and sexual abuse. As some of the most vulnerable among us, they are unfortunately seen as easy prey by sexual predators. Mental patients can also be unstable, and may pose a risk to others. As a result, mental health care providers, like therapists and psychiatrists, have a special duty to protect their patients and third parties from harm. In most states, including Pennsylvania, mental health care providers have a special duty to warn third parties of harm posed by their patients. If, for instance, a mentally ill person tells their therapist they plan to hurt someone, like an ex-boyfriend, the therapist must tell the ex-boyfriend. This duty arises when the patient makes a specific threat of serious, imminent injury against a specific person. If the mental health care provider fails to warn the potential victim, like the ex-boyfriend, they may be held liable. The issue of mental health care provider liability is slightly complicated in Pennsylvania, however, by the existence of the Mental Health Procedures Act. Passed in 1976, the Act gives all mental health care providers limited immunity from lawsuits. To overcome this immunity and recover civil damages, the mental health provider must have acted with "gross negligence." Gross negligence is a legal term that requires a defendant have acted with "substantially more than ordinary carelessness, inadvertence, laxity, or indifference." In other words, the defendant's behavior "must be flagrant, grossly deviating from the ordinary standard of care."

Daycare Centers And Owners Can Be Held Liable For Sexual Abuse That Occurs Under Their Watch

While the majority of child abuse occurs in the home, child abuse frequently occurs in other situations, such as at daycare. According to the United States Department of Health and Human Services, in 2011, at least 2,474 children were maltreated by daycare providers. This maltreatment includes neglect, physical abuse and sexual abuse. However, there were 41,798 cases where the relationship of the perpetrator to the victim was unknown. Furthermore, this only includes cases that were reported to the child's local Child Protective Services Agency. As such, it is possible that this number is even higher than reported. With respect to daycares, each state has laws that set forth provisions that daycare providers must abide by in order to be licensed by the state. These laws usually apply to larger daycare centers rather than home centers that only watch a handful of children. Violation of any of these laws amounts to negligence as a matter of law, and a daycare center owner can be held liable if the violation of one of these laws leads to a child being sexually abused. Even without these laws, a daycare center operator can still be held liable for sexual abuse of the children in his or her charge. If the abuse is committed by an employee, volunteer, or family member of the daycare center operator, then liability can be based on the operator's negligence in supervising the perpetrator, if the operator knew of or should have known of a reason to supervise the perpetrator. If the abuse is committed by an employee, the daycare center operator can also be held liable for negligently hiring the employee if a background check would have revealed something that would disqualify the employee from working at a daycare center. Finally, the day care center operator can be held liable for failing to fire an employee after the operator learns that the employee has abused one of the children. If the employee continues to abuse that child, or abuses other children, then the daycare center operator could be liable to the children who were abused after he or she knew about the initial abuse.

Liability of a Workplace for Sexual Harassment

Both sexual assaults and sexual harassment exist in the workplace, and employers can be held liable for both sexual assaults and sexual harassment. Sexual assaults or sexual harassment in the workplace can constitute a sexually hostile environment. This is a violation of Title VII of the United States Code, 42 U.S.C. § 2000e-2(a)(1), which prohibits discrimination against an employee on the basis of sex.

Liability for Sexual Abuse or Harassment by a Person or Persons Who Work for Local, State, or Federal Government

When sexual abuse or harassment is committed by a state actor, such as a teacher or police officer, or a state actor facilitates the abuse or harassment, then the state actor and/or entity can be held liable pursuant to 42 U.S.C. §1983. In order to prove this, a victim must show that he or she was deprived of a constitutionally protected right by a person or persons who work for local, state, or federal government.

Maryland School Teach Indicted Alleged Sexual Abuse

Lawrence W. Joynes, a former Montgomery County, Maryland school teacher was indicted several days ago in connection with the alleged sexual abuse of 14 elementary school girls and rape of a middle school student during his long career with the school system. Joynes allegedly posed the girls in sexually suggestive ways, and recorded and photographed them. Apparently, a number of the backgrounds were of a Montgomery County classroom. At this point, it is unknown what, if anything, school officials knew about Joynes behavior. It will be interesting to see how the criminal trial unfolds.
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Swain Valley School Sexual Assault Charged On Teacher

Thomas J. Curran, a former teacher at the Swain School in Allentown, Pennsylvania, was recently charged with the sexual assault of an 11-year-old boy in New Jersey. Swain also worked at the American Boychoir School in Plainsboro, New Jersey. Prosecutors are already expecting more of Curran's victims to step forward. It is unknown at this point, however, whether Curran's victims were students at the Swain School, or the American Boychoir School. If they were, the victims may be able to pursue civil claims against those institutions.

Civil Liability for Public Schools Under Mandatory Child Abuse Reporting Laws

Over the last several years, all 50 states have passed laws that require certain people to report allegations of child sexual abuse to appropriate authorities. In Pennsylvania, for example, any person who comes into contact with children in the course of their employment must report to the Department of Public Welfare when they suspect child sexual abuse has occurred. With some variation, the same rule applies in every state. Forty-nine states require teachers to report suspected instances of child abuse.

Statute of Limitations for Victims of Sexual Abuse in West Virginia

As we have previously written, it is imperative that victims of sexual abuse understand how the Statute of Limitations in the state where they were abused affects their rights. After the Statute of Limitations has run, a lawsuit can no longer be filed, and a victim will be left with no civil remedy.

Substance abuse in victims of sexual abuse

In recent criminal and civil proceedings in the news, defense lawyers and institutional defendants have pointed to child sexual abuse victim's substance abuse as a means of attempting to persuade a jury that the sexual abuse victim is not credible. However, this argument is short sided and is often done to persuade jurors who might not fully comprehend the depths of emotional scarring that sexual abuse victims suffer. Sexual assault and sexual abuse victims often turn to alcohol or other substances as a means to cope with emotional distress. This unhealthy reaction to the abuse allows the sexual abuse victim to temporarily escape from reality and numb the pain of what they have endured. Unfortunately, substance abuse often leads to more problems, so it is important to gain a better perspective of the abuse which can be provided in the course of counseling.

Liability of Hospitals in Sexual Assault Cases

Hospitals can be sued when their employees commit a sexual assault. In order to show that a hospital is liable, a plaintiff will need to show that the employee posed a risk of danger to others, and the hospital knew about the employee's dangerous proclivities. One example of this is when an employee had a prior conviction that could have been discovered by a properly conducted background search and the hospital either did not run the background search or hired the employee in spite of the prior conviction, then the hospital could be liable for any injuries caused by that employee's sexual assault of a patient or other employee.

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