The latest example comes from Broward and Miami-Dade school districts. The Sun-Sentinel recently reported on several lawsuits in the districts regarding claims of sexual abuse and sexual assault. The Sun-Sentinalreports that the school districts used these arguments as a defense in at least eight separate lawsuits stretching back to 2010.
The idea of comparative negligence in sex abuse cases
In personal injury cases, “comparative negligence,” sometimes referred to as “contributory negligence” is a way to reduce the amount of damages the at-fault party has to pay. This is a legal argument frequently used in slip-and-fall cases and motor vehicle accident cases. The idea is that the total damages are reduced by the same percentage as the victim’s fault. Was the driver 20 percent responsible for the accident? Then a $100,000 jury verdict is reduced by $20,000.
It is never the victim’s fault
While well-established in other personal injury cases, contributory negligence in sexual abuse cases is wholly misplaced. There is no reasonable interpretation of sexual abuse in which a child is partially at fault for being abused. However, this came up as a defense in several of the lawsuits uncovered by the Sun-Sentinel, in which attorneys defending the school argued that damages should be less because students’ failed to report the abuse immediately or did not go to therapy. In one case, the defense attorneys even argued that a student and her mother voluntarily placed the girl in danger.
In its reporting, the Sun-Sentinel quoted several administrators from the district who said they were shocked to hear that this was a defense in the lawsuits. The general counsel for one of the districts said she was not aware that outside counsel were using comparative negligence as a defense, and that it was a practice the district would look into ending.
We hope so, since children who are abused should never be blamed in any manner for the harm that was caused to them.