Trial considerations for plaintiff’s attorney in a sexual abuse of minor case.
Jury selection generally
Attorneys experienced in child molestation cases know that the age of the plaintiff can make a big difference in the type of jurors that plaintiff will want on the jury. If plaintiff is under twelve at the time of the trial, jury selection is far less challenging because almost everybody likes kids. With a young child, the plaintiff’s attorney will probably accept almost any juror who likes children, believes they tell the truth and will be able to keep an open mind to the testimony of psychological experts.
Unfortunately, almost everybody does not like adolescents, so jury selection is more difficult in a case with an older plaintiff. This is particularly true if plaintiff was an adolescent at the time of the alleged sexual abuse. Depending upon the nature of the abuse and age of the perpetrator, the closer to age eighteen that plaintiff was at the time of the abuse, more and more jurors are going to believe that, even though it is illegal to have sex with a minor, the minor may bear some responsibility for the abuse. The plaintiff’s attorney must tackle this issue head-on during jury selection. The issue is not whether the perpetrator was “wrong” in engaging in sexual contact with a minor. Almost all jurors will indicate that they believe that defendant was “wrong” if they believe defendant committed the abuse. A more important issue for jury selection is whether any potential jurors will believe that plaintiff was an equal or “somewhat equal” participant in the sexual relationship, and that the relationship between defendant and plaintiff was “consensual.”
In many child sex abuse cases, the plaintiff’s attorney will propose to the judge and the defense lawyer using a questionnaire as part of the jury selection process. The jurors are going to have to be asked in one form or another whether or not they were sexually abused as children or whether their own children or family members have been sexually abused. With a questionnaire, this information can be obtained privately, and the questionnaire should allow prospective jurors to indicate whether or not they would like to be questioned privately about any experience they might have with child sex abuse.
Opening statement themes
In a child sexual abuse case, as in most mental and emotional injury cases, the plaintiff’s attorney should focus the opening statement on the misconduct of defendant, particularly if there is an entity defendant in addition to the perpetrator defendant.
If the entity defendant is a licensed facility, the plaintiff’s child abuse attorney should point out during opening statement that we all, as a society, licensed the entity to take care of our children. If the facility is for profit or paid for its services, plaintiff’s attorney should emphasize that fact as well.
Whether or not the entity is licensed, an important theme of the case will be that we cannot protect our children ourselves twenty-four hours a day and sometimes we have to entrust others to take care of and watch out for our children. In this case, the defendant entity violated our trust.
If the case involves a young child, the plaintiff’s attorney should state in opening statement that the minor plaintiff was not in a position where he or she could protect himself or herself from the sexual abuse. This is another reason why we as a society entrust certain entities to protect our children; that is, because the children cannot protect themselves.
Calling the minor plaintiff as a witness
The issue as to whether or not the plaintiff’s attorney should call the minor plaintiff to testify in the case, and the extent of the minor plaintiff’s testimony, will be a determined by the nature of the case, the nature of the injury, and, most importantly, the plaintiff’s age.
With very young children it is probably best to not call plaintiff for a detailed direct examination at trial. Rather, if a child plaintiff testifies at all, the child should be asked only a few questions so that the jury gets to know the plaintiff. But if the plaintiff is an adolescent at the time that he or she testifies at trial, a jury will probably expect the plaintiff to testify to at least some of the details of the sexual abuse.
People to whom plaintiff reported the abuse
A young child’s revelation of incidents of sexual abuse can be important evidence. In appropriate circumstances, the plaintiff’s attorney should attempt through the direct examination of witnesses to make the point that plaintiff’s revelation of sexual abuse was untainted by a lawyer’s questioning or by the encouragement of parents or other adults.
It is not uncommon for a young plaintiff to gradually report the incidents of abuse over time. As appropriate and feasible, the plaintiff’s attorney should call each and every witness to whom an incident of abuse was first reported.
Plaintiff’s psychological expert
The testimony of plaintiff’s psychological expert is critical on the issues of causation and damages in a lawsuit for the sexual abuse of a minor. Plaintiff’s psychological expert, if properly credentialed, can give testimony that is supportive of plaintiff’s liability case.
As supported by the facts, plaintiff’s psychological expert should testify that the manner in which plaintiff reported the abuse is consistent with the report of abuse of other child victims of a similar age. The psychological expert who personally evaluated the plaintiff should also be able to testify that the expert’s findings that indicate an injury are consistent with the findings regarding other children who have been sexually abused.
A psychological expert’s testimony on causation is particularly important in the case of a young child to establish that plaintiff’s symptoms are inconsistent with normal developmental behavior. Furthermore, the expert can testify that plaintiff’s symptoms are inconsistent with whatever stressor (other than the sexual abuse causing plaintiff’s problems) the defense is suggesting was the actual stressor.
In addition, if supported by the facts, the plaintiff’s psychological expert should be able to testify with reasonable medical and psychological probability that plaintiff will incur significant problems at various stages of his or her life and will require significant treatment to overcome those difficulties.
Generally, the plaintiff’s attorney will repeat themes previously mentioned in the opening statement.
In a case against an entity that employed the perpetrator, the plaintiff’s closing argument should focus on the responsibility of the defendant entity. The plaintiff’s attorney should emphasize that, during the time of the sexual abuse of the child, the defendant entity was responsible for both the perpetrator and the child. The responsibility for both the perpetrator and the child is inseparable because the entity cannot protect the child without properly hiring, training and monitoring its employees including the perpetrator.
Recalling another theme from the opening statement, the plaintiff’s closing argument can remind the jurors of the reason why the law establishes a “special relationship” between those entrusted with the care and protection of a child and the child. It is because children are helpless and are extremely vulnerable to abuse by those who are supposed to protect them.
If the plaintiff will need substantial psychological treatment in the future, the closing argument should remind the jurors of the testimony (elicited from plaintiff’s psychological expert) that if a child sexual abuse victim like plaintiff is left untreated, he or she is at high risk for abusing his or her own children or even sexually molesting other children. Thus, the only way to stop the cycle of abuse is to provide the psychological treatment that plaintiff needs.
The portion of plaintiff’s closing argument that addresses emotional distress should concentrate on plaintiff’s losses rather than plaintiff’s symptoms. The essential loss to focus on is plaintiff’s loss of innocence. Once stolen, childhood innocence can never be retrieved. Plaintiff will feel that loss for the rest of his or her life.