Arguing Damages Flowing From Sexual Torts
Posted in Articles on June 2, 2017
John D. Winer, San Francisco
I. Sexual Tort Cases
A. Damages Flow from Violations of Sense of Self and Trust
Damages in sexual tort cases flow from violation of a person’s sense of self and sense of trust rather than from any physical injury caused by the sexual act. By definition, in a sexual tort case a defendant has had some type of sexual relationship with a person he had no business having sex with, whether that person be a minor, a patient, a parishioner, a student or any other person who is in a physically or psychologically vulnerable position in relation to the defendant.
B. We as a Society Outlawed the Behavior
A closing argument in a sexual tort case begins with the concept that we, as a society, have outlawed the behavior that defendant engaged in because there is a recognition that such behavior is inherently damaging.
C. The Personal Nature of the Injury
The argument then should turn to the question of how the damage was inflicted. Your expert will have testified that injury that is inflicted within a personal relationship is the most damaging injury of all and the hardest to heal. Almost by definition, somebody that has been injured by a sexual tort has been injured by a person with whom they placed extraordinary trust. This would be true whether the person is a psychotherapist, older relative, doctor, priest or employer. Inherent in that relationship is a dependency and inherent in the relationship has been the turning over of trust, sometimes unqualified trust, to the person in power. This is especially true in healing relationships, such as psychotherapy, in which the person has to turn over trust in order to be helped.
D. Why the Injury is Permanent
When a person in the position of power violates this trust, it is the most personal and frequently permanent of injuries. The permanency flows from the fact that the damage created by sexual torts is extraordinarily difficult and sometimes impossible to treat. Here is the reason: the only way to treat a psychological injury is through psychotherapy. However, any psychotherapist will tell you that psychotherapy does not work without trust. Once a person has been betrayed by another person in power, particularly if that person is a doctor or therapist, trust with another professional is virtually impossible. This is one of the reasons why it sometimes takes a lifetime of intensive psychotherapy to treat victims of sexual abuse.
E. Loss of Hope
1. Why we need hope.
Another critical element of damage in a sexual tort case which should be argued is the concept of “the loss of hope.” It is very difficult to walk through the world on a day-to-day basis without any sense of hopefulness. Without hope, almost by definition, we are defeated. If you look at people who have suffered significant physical or emotional trauma, you frequently wonder what keeps them going. The answer is that somewhere, somehow, someway they have held on to a sense of hopefulness that their situation will get better. When somebody has been sexually violated by somebody else whom they have trusted, often one of the very things that has been violated and exploited is the hopefulness that the person brought to the relationship.
2. Search for hope.
When people work up the courage to enter psychotherapy, or speak to their minister, they are often searching for something to help elevate them from their unsatisfactory circumstances. Frequently in professional abuse cases, we find a doctor, priest or therapist who either explicitly or implicitly holds out hope to the victim for a better life. This not only increases the perpetrator’s power, but also increases the dependency of the victim and often leads the victim to feel this is their one last chance to rise above their circumstances.
3. Hope and transference.
Also, the transference phenomenon is occurring simultaneously. Transference is the process by which a person unconsciously transfers feelings and perceptions from their childhood onto the professional. The transference phenomenon increases the professional’s power over the patient and tends to intensify the feelings of hopefulness that the patient places in the therapist (transference occurs in all relationships, but most intensely in therapeutic relationships).
4. Exploitation of hope and dependency.
It is because of the transference phenomenon and because of the high degree of dependency and hope that exist in healing relationships, that they are so easily exploited. Whether the victim is a patient, parishioner, student or client, they are searching for help and guidance. That, along with the transference and dependency, makes them vulnerable. When a professional steps out of his role and violates the victim, a loss of hope is almost inevitable.
5. Depression and suicidality flow from the loss of hope.
The loss of hope frequently leads to suicidal feelings and sometimes, tragically, suicide. People that have been sexually exploited often become incapable of taking care of their families, holding down jobs or entering into any type of successful social relationships. The death of hope often results in the literal or figurative death of the person as we knew them.
F. Loss of Peace of Mind
1. The anxiety symptoms.
In terms of a closing argument, the “loss of hope” argument will provide the jury with an excellent focus for the depressive-type symptoms that result from sexual abuse. The other type of symptoms that result from sexual abuse are the anxiety symptoms. These symptoms are best discussed with a jury in terms of the “loss of peace of mind.”
2. The value of peace of mind.
Just as we all need hope to survive, we also need peace of mind to make life worth living. If our mind is filled with noise, self-hatred and confusion, we cannot enjoy life’s few precious moments and frequently life becomes a living hell.
3. Attack on peace of mind by the creation of self blame.
A person who sexually exploits another attacks their peace of mind. Why? Victims of sexual exploitation almost invariably blame themselves for the exploitation. The reason they do that is because it is easier to blame themselves than it is to blame the perpetrator. To blame the perpetrator is to believe that they will be forever vulnerable to further exploitation. Self-blame allows the victim to live in the illusion that they will never have to suffer this type of pain again because, somehow, it is in their control to stop it if they are just more careful or do not trust so easily. Unfortunately, this self-blame not only leads to a lack of trust and a sense of hopelessness, but also leads to a mind full of torment. Victims frequently become obsessed with their own faults and uselessness and their minds become very noisy places where there is little or no peace. They lose the ability to enjoy a sunset, or enjoy a few moments with their child or the other things that give one pleasure in life. Instead, everything becomes an ordeal and simple tasks seem insurmountable. The loss of peace of mind means the loss of the moments that make life worth living and, like the loss of hope, frequently leads to suicide.
Both the loss of hope and the loss of peace of mind often lead victims of sexual abuse to develop very unpleasing personalities. Nobody wants to be around a person who is depressed and anxious all the time. Nobody wants to be around a person who is self-absorbed and obsessed with the failure of a relationship. Thus, victims of sexual abuse not only isolate themselves, but are frequently abandoned and neglected by the people who once loved them who can no longer put up with them or be around them. This leads to loneliness, a sense of failure and despair.
G. Converting Emotional Pain Into Dollars
Finally, you must convert these concepts into a request for money from the jury. The best way to do this is to point out to the jury that a person could have the most serious of physical injuries, such as paralysis or the loss of a limb, yet as long as they have their sense of hope and their peace of mind, they can live fulfilled, happy lives. However, when somebody has suffered the death of hope or the loss of peace of mind, they cannot have a moment of happiness. Their lives cannot be fulfilling. Instead, they have their physical well-being, but lack the ability to enjoy or even use it. Therefore, when the jury sits down to assess damages in this case, they should think of the damages that they would award to a person who has suffered paralysis or the loss of a limb, and recognize the fact that an injury to the mind is often far more serious and debilitating than an injury to the body and award damages accordingly. After all, they do make artificial limbs but they do not make artificial minds. The jurors cannot give the plaintiff her mind back; however, they can fully compensate her for the damages that she suffered as a result of the gross exploitation of somebody whom she trusted.
This article was authored by John D. Winer. Winer, Burritt & Tillis LLP
specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.