DO I HAVE A CASE?

To know if you have a good case, you should be able to answer these five questions:

1. Do you know who the perpetrator is, or how to find out?

A civil lawsuit only works if it is brought against an individual or business that is known.

2. Do you have evidence to support your case?

There are many kids of evidence, including witness testimony, text messages, video, emails, documents, rape kits, etc. Often, sex crimes have relatively little evidence because they involve "he-said, she-said" situations where nobody else was in the room. This is why many prosecutors cannot file criminal charges. But if the survivor's testimony -- along with all surrounding circumstances -- is more believable than what the perpetrator says, then a survivor can prevail in a civil suit.

3. Do you have the emotional strength and desire to deal with a civil lawsuit that might last years?

Some lawsuits are quick, others last years. But the process of being in a lawsuits is often stressful. This may or may not happen, but sometimes survivors need to talk about their experience in front of other people, might need to be in the same room with the perpetrator, and might be accused of fabricating their story for money. This can take an emotional toll on many people.

4. Does the perpetrator have financial means to satisfy a judgment?

A civil lawsuit cannot put a perpetrator to jail or on a sex offender registry. Usually, the result of a civil case is a judgment or a settlement agreement saying the perpetrator must pay money to the survivor. If the perpetrator has no assets (money, home, etc.) then in the end, it can feel like it was a waste of time and effort.

5. Do you have a "claim" to pursue?

To have a lawsuit, you need to have one or more "claims." For survivors of sexual crimes, common claims include: (a) rape, (b) sexual abuse, (c) child sexual abuse, (d) assault, (e) battery, (f) negligence, (g) fraud, (h) kidnapping, (i) voyeurism, (j) theft, and the list goes on and on.

Each claim has "elements," which is like a checklist of what must be proven. Below, we'll list the elements that go with some common claims. Often, one incident can result in multiple claims. For example, rape of a child might include all of the following claims: rape, sexual abuse, battery, child sexual abuse, intentional infliction of emotional distress, etc.

Just remember, a whole book could be written about each sentence below; what you read here is simplified and general. For a more detailed explanation, you should speak with an attorney.

Is it too late?

Before we get to the individual claims, it's important to recognize that each claim has a time limit. These are known as "statutes of limitation." If the time limit has expired, you cannot win on that claim.

These laws about timing can get confusing. But some basic concepts apply. Just remember, this whole discussion is about Utah law. If the events happened in a different state, the time limits might be very different.

1. Many claims in Utah have a default time limit of four years after the event. In other words, if a claim happened on March 1, 2010, then the time limit to file a lawsuit is typically on or before March 1, 2014. But there are many exceptions, sometimes the time limit or more or less.

2. Sometimes, when a wrongful event is part of a continuous series of ongoing wrongful acts, the time limit might only start with the most recent event. For example, if there was an on-going series of wrongful acts that lasted from January 1, 2002 to March 1, 2010, then in some circumstances the clock only starts to run on March 1, 2010.

3. For any claim that happened to a child (under 18 years old), the law assumes the event happened on the person's 18th birthday. So if a child was assault when they were 7 years old, the clock does not start to run until they turn 18. And if that claim has a four year limitation period, it can be filed up to the person's 22nd birthday.

4. For any claim of child sexual abuse committed by an adult, if that child was born after March 1993, then they can wait until their 53rd birthday to file a lawsuit against the perpetrator, but only if the perpetrator is still alive. There is an effort to change this law so that it allows survivors of all ages to file claims for child sexual abuse.

5. For claims involving fraud or deception, a three-year limitation period usually starts running from the date when a reasonable person in the victim's position would have learned about that fraud or deception.

Again, these are best thought of as rules of thumb. You should discuss questions with a lawyer before making any decision about your situation.

Do You Have Any Claims?

Look at the elements for the claims below. If each element for that claim is true, and if the time limit has not expired, you likely have a claim that you can pursue. Many items might overlap. For example, anytime a child is raped, it almost certainly includes rape, battery, child sexual abuse, and probably others.

Claim: Rape. The elements are:

1. Sexual intercourse between a male and a female, and,

2. The female does not consent.

Claim: Object Rape. The elements are:

1. Penetration of genitals or anus by any object (this can mean a body part),

2. For the purpose of sexual gratification or to cause pain, and

3. The victim does not consent.

Claim: Sexual Abuse. The elements are:

1. Intentionally touching the genitals, anus, buttocks, or breast of female,

Note: The touching can be over clothing or done with an object.

2. For the purpose of sexual gratification, and

3. The victim does not consent.

Claim: Assault. The elements are:

1. A person intends to touch another person in a harmful way, and

2. The victim is afraid they will be touched imminently.

Claim: Battery. The elements are:

1. A person intends to touch another person in a harmful way, and

2. That person touches a victim in a harmful way.

Claim: Sodomy. The elements are:

1. Touching of one person's mouth to the genitals or anus of another person,

2. The victim does not consent.

Claim: Intentional Infliction of Emotional Distress. The elements are:

1. A defendant’s conduct is outrageous to the point that it offends generally accepted standards of decency and morality.

2. The defendant intends to cause emotional distress, or doesn’t care if he does.

3. The victim suffers severe emotional distress caused by defendant's conduct.

Note: The "severe emotional distress" usually means things like depression, severe anxiety, suicidal thoughts, post-traumatic stress disorder, etc.

Claim: Negligent Infliction of Emotional Distress. The elements are:

1. A defendant unintentionally cause emotional distress to the victim.

2. The defendant should have realized his conduct involved an unreasonable risk

of causing the distress.

3. The defendant should have realized that the distress might cause an illness or bodily harm”;

4. The victim's emotional distress resulted in illness or bodily harm.

Claim: Molestation. The elements are:

1. At least one of the following:

(a) Intentionally touching the genitals, anus, or buttocks of any child, or the breast of female of a child,

Note: The touching can be over clothing or done with an object.

(b) Taking indecent liberties with a child; or,

Note: "Indecent liberties" is a broad term; it can include exposing genitals to a child, asking them to engage in sexual acts, asking them to participate in pornography, etc.

2. For the purpose of sexual gratification.

Claim: Child Sexual Abuse. The elements are:

1. An adult perpetrator,

2. Who commits one or more of these acts:

a. sexual intercourse,

b. sodomy, or

c. molestation

3. Against a child under the age of 18;

Claim: Kidnapping. The elements are:

1. Any one of the following:

a. A victim is detained or restrained for a substantial amount of time;

b. A victim is detained in a circumstance the exposes them to risk of bodily injury;

c. A victim is held in involuntary servitude;

d. A child victim is detained or restrained without parent's consent

2. The person doing the detaining/restraining is not acting with lawful authority.

Claim: Fraud. The elements are:

1. A statement is made,

2. About an existing and important fact;

3. Where the statement is false;

4. The person making the statement either

a. knew it was false, or

b. said it recklessly knowing they lacked sufficient knowledge

5. The statement was made to get the victim to do something;

6. The victim acted and reasonably did not know the statement was false;

7. The victim relied on the statement being true;

8. The victim acted based on the false statement; and

9. The victim was injured.

Claim: Negligence. The elements are:

1. A defendant owed the victim a duty;

2. The defendant breached that duty;

3. That breach of duty caused the victim to suffer injuries or damages.

Claim: Intrusion upon Seclusion. The elements are:

1. An intentional substantial intrusion, physical or otherwise, upon the plaintiff's solitude;

2. In a way that would be highly offensive to a reasonable person.

Claim: Sexual Harassment (Quid Pro Quo). The elements are:

1. An employee works for an employer that has 15 or more employees;

2. The employee is subjected to unwanted requests for sexual acts;

3. Where the harassment is caused by someone in a position of power over the victim.

There are numerous other claims not discussed here.