The legal field can seem complicated and daunting to those who do not have much experience navigating it. This may lead to confusion about who can be held liable for acts of abuse, due to factors such as age or relationship to the victim.
The most important thing to know, however: in all instances, the direct perpetrator of abuse can be sued. This is true even if the abuser is also a minor.
Minors can be sued. However, they can only be sued when an adult is appointed to look after their legal interests. The adult essentially acts as the minor’s guardian for purposes of the lawsuit filed.
If Buddy, age 11, is sexually abused by Nate, age 13, Buddy will need a guardian to represent his interests in a lawsuit against a guardian appointed by Nate because minors lack legal capacity to sue one another.
A guardian, or “next friend,” can be anyone, but in most cases, it is filled by the victim’s natural mother or father. It is a temporary position, and the guardianship only lasts so long as the lawsuit itself.
Authority over the minor, unless the minor’s representative has long-term guardian status (e.g., parent), extends only to matters directly related to the conduct of the lawsuit, including decisions about settlement and working with counsel.
Very young minors may lack the capacity to understand the wrong- ness of his or her actions. Such as, “show me yours, I will show you mine” episodes in the closet. There is no bright-line rule as to when a minor becomes old enough to be legally responsible for his or her own actions.
When a minor lacks the capacity to understand the essential wrong- ness of his or her actions, responsibility for the child’s actions may extend to his caretakers.
Parents, babysitters, grandparents and others may be responsible for “negligently” failing to supervise a child, especially if the child has demonstrated any tendencies in the past.
Billy has been caught on several occasions fondling his sister. His mother, Betsy, has repeatedly warned him and punished him accordingly. His sister has friends over for her 7th birthday party, including, Erin, a friend from school. Betsy does her best to keep an eye on Billy during the party. She lets him go downstairs to play video games. Unknown to Betsy, Erin wanders downstairs and begins playing video games with Billy. A bit later, looking for Erin, Betsy too wanders downstairs only to find Erin undressed with Billy fondling her. Betsy could be held responsible for neglecting to supervise Billy.
Any type of organization can be sued when one of its employees sexually abuses a child. In rare cases the circumstances are such that the organization can be responsible for the wrongful acts of an employee, even when the acts are intentional, without engaging in any active wrongdoing.
This is what is called “respondeat superior” or vicarious liability. The employer is responsible when the employee commits a wrongful act in the course and scope of his or her employment.
Many children are put into contact with adults that neither they nor their parents know. An employer or an organization may have access to information and resources to investigate backgrounds that are underutilized. They have a responsibility to make sure their charges are not a threat to children.
Jacob is 3-years old and spends 3 days a week in daycare. Daycare R Us, a prominent, nationally recognized facility, hired Beth two years ago. Beth seemed such a fine and personable individual that Daycare R Us did not speak to her former employers, search criminal records or obtain any of her former employment records. If they had done so, they would have found that two of the three facilities had noted in her file that she was fired after allegations of sexual abuse. One employer referred charges on her to the prosecutor’s office, but the plea agreement did not specifically mention a conviction for a sex crime. It was listed simply as “mis- demeanor assault.” Beth has been fondling Jacob and other kids at the center when she takes them to the bathroom, under the guise of giving assistance. Jacob tells his parents about these episodes over dinner one night when he casually comments, “I don’t like it when Ms. Beth takes me to the bathroom.”