I want to protect other children from the abuser, and sue for the emotional damage and personal injury caused by the abuse. Our whole family of five is suffering and the costs for therapie etc are enormous.
Is there possibilities to sue in civil court, and what is the statue of limitation when it comes to Child Abuse? The case was not able to be picked up by the DA's office, because of the age of the two children in question, but the children's forensic interviews were 'without a doubt' cases. It's not likely that he ever will get convicted in criminal court, but the DA suggested us to take the case to civil court instead.
There are plenty of personal injury attorney who "might" be willing to take on your case. The applicable statute of limitation is two years. However, any attorney is going to ask what assets the person being sued has. Is he judgment proof? Myself and other attorney meet with clients and file lawsuits every day. However, when we get a large judgment, even though such a judgment can not be liquidated in bankruptcy, it is a waste of time and money to go after someone that you can not recover money from. I have sued dozens of people who we thought had assets only to learn that they were judgment proof and unless they win the lottery, my clients will have little chance of recovery.
Mr. Leroi outlines the problems with a lawsuit such as you are proposing. Most crimes against people and crimes against property are also civil wrongs and can be filed as lawsuits. However, criminals are usually not the most productive members of our society and if you get a judgment it may take a very very very long time to collect any actual money if the perpetrator is an unproductive deadbeat without assets or a good job. Further, insurance rarely covers intentional criminal behavior so there is no third party payer like there is in an auto accident or similar case. If the evidence is strong and the perpetrator is wealthy it might be possible to interest a traditional personal injury firm in pursuing the case, but otherwise you have significant hurdles. There are reasons that few civil claims are filed for this type of criminal behavior.
I believe that criminals, especially violent criminals and sexual predators, should be held responsible for their actions more often in civil courts. Criminal courts are aimed at making offenders "pay their debt to society" but are not aimed at fully addressing the debt owed to the victims of the crimes. Sometimes principal makes these cases worth pursuing despite the practical difficulties of actually collecting judgments. I have started taking some of these types of cases on a contingency basis despite the likelihood that most judgments in these types of cases will take a very long time to produce anything. However, even without charging clients for up-front attorney fees, I cannot afford to pay the out of pocket costs of such litigation and such costs have to be paid by the clients. Since these types of cases do not come with an insurance company guarantee of payment at the close of the case, it is not possible to advance costs on their client's behalf. Those costs are your biggest impediment to pursuing a civil action.
The lack of a criminal conviction means that liability is not pre-established. You will have to prove the perpetrators guilt to a jury (albeit to a lower standard of proof than in a criminal trial). Whatever issues gave the D.A. pause in filing charges will be present in a civil case as well. Additionally, the children will have to be witnesses not only at trial, but possibly at pretrial depositions as well. Are they interested in doing that? Are they prepared for it? Are they old enough to participate in the process?
There are costs involved in pursuing a civil claim that are not present in a criminal case or are paid for by the government in a criminal prosecution. Filing fees and jury fees have to be paid in order to pursue such a claim. Process has to be served and the Sheriff charges a fee for civil processes. If you want any hope of proving significant damages, you will need expert testimony from a psychologist or psychiatrist to show a jury the ongoing impact of the abuse. These people have to be paid for their time and testimony. Depositions are often a part of the pretrial work and they also cost money. Civil litigation is not inexpensive even without attorney fees.
The statute of limitation for physical assault is one year. For sexual assault, it is 6 years. The limitation period does not begin to run until the victim is 18 if they are a minor, so if we are talking abuse of a child the time you have to pursue a civil claim can be quite long.
If the children are too young to fully participate, it might be best to table the idea of pursuing a civil claim until they are older and better able to participate in the process themselves. They are the victims and they will have to be prepared to go through a lot to pursue a claim like this.
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