Causation And Sexual Assault (Part Two): Causation For Liability Has Limited Application In Sexual Abuse Cases
This blog is the second installment in a three-part series exploring causation in the civil sexual abuse context. In part one, I laid the foundation by distinguishing causation for liability from causation for damages. Now, I turn my focus to causation for liability — a concept that has limited application in sexual abuse cases. By examining the nature of claims and the constituent elements of different causes of action, I will explain why causation for liability is often less relevant in the sexual abuse context than is causation for damages.
One must remember that causation for liability purposes is only a relevant consideration for certain types of claims, whereas causation for damages purposes will always be relevant where compensation is being claimed for sexual abuse and violence.
Balance Of Probabilities
So, the starting point for determining if causation for liability is relevant is to consider the nature of the claim, or the cause of action being asserted. Each cause of action has constituent elements that must be proven on a balance of probabilities. For the intentional torts of assault and battery, there is no requirement to prove that harm was caused to make out a viable claim. Rather, one must prove the defendant:
• in the case of assault – intended to create an apprehension of imminent and offensive physical contact; and
• in the case of battery – intended to and did apply physical contact directly to the plaintiff.
Compare that to negligence and its constituent elements: the defendant owed a duty of care to the plaintiff, the defendant breached that duty, the plaintiff suffered damages which were a reasonably foreseeable consequence of the breach, and the defendant’s breach caused those damages. Importantly, intention is not a requirement for negligence, but damages that were caused by the breach of duty is.
Causation Issue For Negligence
Put simply, the causation issue for negligence is whether or not the defendant’s breach made a difference to the outcome. For example, in a clergy sexual abuse case, if the bishop was aware of his priest’s prior history of sexualized misconduct, but failed to take any steps to prevent the plaintiff, to whom the bishop owed a duty of care, from falling prey to the priest, then there is causal connection between the bishop’s inaction and injury to the plaintiff.
On the other hand, if the injury to the plaintiff by the priest had already happened when the bishop became aware of his priest’s history of misconduct, then the bishop’s inaction cannot be said to have caused the injury.
In this latter scenario, the elements of negligence cannot be established, and the negligence claim will fail. In this circumstance, so too will any claim for damages.
Since the majority of personal injury claims are based in negligence, it’s no surprise that much legal ink has been spilled over what a plaintiff must prove to establish causation for liability in negligence. This ink, in turn, has spilled into the treatment of damages in sexual abuse cases, even though these cases rely much more on the intentional torts than on negligence. The result is confusion and uncertainty about how to deal with causation in sexual assault.
Two Tests For Causation
What is often overlooked is that there are two tests for causation, not one:
• The first relates to what must be established to make out liability in negligence, which will only sometimes be relevant in a sexual assault case;
• the second relates to assessing damages after liability has been determined, be it in negligence, for intentional torts, and/or for vicarious liability based on negligence or the intentional torts, and it will always be relevant.
As we’ve seen, causation for liability plays a limited role in sexual abuse cases, which depends on the type of claim being asserted. In the final part of this series, I will shift my attention to causation in relation to damages — a cornerstone of civil liability for sexual abuse.
Join me as I explore how courts approach this critical issue and the principles that guide the assessment of damages.
Contact ELIZABETH Today
Lerners understands you need someone to believe in you. Our consultations are free. Call today and let us help you and your family.
