Sex Abuse
It is estimated by studies that one in six children will experience some form of sexual abuse prior to reaching the age of majority. This suggests that there is an epidemic involving predatory action towards children in our society.
To file a Petition alleging sex abuse in Louisiana there are particular requirements that do not apply to other types of cases. To file a Petition there must be compliance with LA. R.S. 9:2800.9 entitled “Action Against a Person for Abuse of a Minor.” To pursue a claim this Statute in part states that if a Plaintiff is 21 years or older at the time the action is filed, Certificates of Merit must be executed by the attorney for the plaintiff and by a licensed Mental Health Practitioner selected by plaintiff declaring that there is good cause to conclude that there is a reasonable and meritorious case for the filing of the Petition. The Mental Health Practitioner must offer an opinion that, in his opinion there is a reasonable basis that plaintiff has been subject to criminal sexual abuse during his childhood. If a Petition is filed naming a defendant that does not include these certificates, the filing attorney is subject to disciplinary action.
Punitive Damages for Criminal Sexual Activity
LA. C.C. Art. 2315.7 allows for punitive damages to be awarded for criminal sexual activity occurring during childhood where there is wanton and reckless regard for the safety of the person involved. This is in addition to general and special damages which are recoverable in tort cases.
To establish a negligence claim directly against an institution where the defendant employed or had an agency relationship with the individual perpetrator, it is the plaintiff’s burden to show: 1.) defendants knew or should have known that the plaintiff could be sexually abused if the employees volunteering and serving the institution were not properly supervised; and 2.) defendants failed to take proper and reasonable steps to protect a victim from foreseeable harm. The organization must have adequate safeguards in place to prevent sex abuse when it is foreseeable.
Employers may be Liable
Additionally, employers may be vicariously liable for the acts of their employees. La. C.C. Art. 2320 allows masters to be sued for acts of their employees. To recover against an organization for the acts of its employees, one can show that the employee was acting on behalf of the organization and engaged in activities which would fulfill the mission of the organization.
Prescription is controlled by LA. R.S. 9:2800.9. This is remedial legislation enacted in 1993. It allows for a ten year liberative prescription period running from the day the abused minor obtains majority. Therefore, the prescription effectively runs till age 28 on an individual who was abused as a child.
Prior to this remedial legislation, prescription involving sex abuse of a minor was subject to the liberative prescription of one year, the same as any other tort claim. It was, however, subject to some exceptions.
Because of the particular nature of sex abuse and the tendency of victims of sex abuse to not report it, because of threats by the abuser, shame or other psychological reasons, the Louisiana Supreme Court has held that a claim involving sex abuse of a minor would not prescribe and was suspended until the minor told a parent. This would allow the parent to take action on behalf of the minor if appropriately informed. The one year period would run from the date the minor told the parent. Wimberly v. Gatch, 621 So.2d 633 and 635 So.2d 206 (La., 1994), Wagoner v. Dyson, 647 So.2d 493 (La. App. 1994).
Contra non valentem has also been used to suspend the running of prescription where the claimant alleged repressed memory as a result of the abuse and then had a recovered memory within a year of filing of the Petition. This would be a recovered memory syndrome which would relate to trauma which can result in a loss of memory of the abuse as a defense mechanism.
The Lamothe Law Firm has substantial experience in handling sex abuse cases. Frank E. Lamothe, III, was recently instrumental in settling a group of sex abuse cases for over $5 million dollars which involved a Catholic home for disadvantaged boys. Frank E. Lamothe, III, has lectured on sex abuse in Louisiana and prepared a paper entitled “Sex Abuse in Louisiana”.
If you or a loved one has been sexually abused, please contact our New Orleans sexual abuse lawyers for a confidential meeting to discuss your claim.
