Learn the basics of a lawsuit and why you should file one against the school or other institution where your child was sexually assaulted.
What Is a Lawsuit?
A lawsuit involves a long process, with lots of steps, from the initial filing to the possible trial. Every lawsuit is different but there are certain stages that remain the same in every case.
Below is a general description of the various stages that happen in a lawsuit and the documents you need:
The Petition. You start a lawsuit in a court by filing a petition or complaint. The petition includes statements of fact about what happened. It could include factual details about the people involved, the sexual assault itself, and the injuries that were suffered. The petition will then have the legal claims that are being filed against the institution and maybe the perpetrator. You are the Plaintiff, and the other side is the Defendant.
The Answer. After you have filed your petition with the court, the Defendant’s attorneys will then file an answer in response. Generally, the answer does not provide much information and simply serves as a denial of the legal claims that you made in your petition.
Discovery. Discovery is a phase of the lawsuit in which the parties obtain information from one another. The discovery process includes written requests from one party to the other. These written requests include the following:
Interrogatories. Interrogatories are written questions from one party that must be answered by the other party. They can include requests for names of witnesses or descriptions of what happened.
Request for the Production of Documents. These requests from one party to the other ask that the other side produce documents that they have in their possession that relate to the lawsuit.
Medical Authorizations. Most likely your child has received medical and psychological treatment as a result of the sexual assault. The Defendant’s attorneys are going to want to see copies of your medical records and medical bills.
Depositions. After the parties have exchanged information through written discovery, then depositions will occur. A deposition is a process of an attorney asking questions of the parties. The Defendant’s attorney will want to take your deposition. This means that on a certain date you will come to an attorney's office and sit down at a table in the meeting room. Your attorney will be there with you. There will be a court reporter who will be making a record of everything that is said during the deposition. The Defendant’s attorney will ask questions and then you will provide answers.
Motions. In some cases, the Defendant’s attorneys may file a motion to try and dismiss your lawsuit. This motion will attempt to argue that you do not have a legal claim against the Defendant for one reason or another. Whether the Defendant’s attorneys file this motion and whether it will be successful is extremely specific to each and every case.
Mediation. Nearly every court will require the parties to participate in a mediation. At the mediation both parties and their attorneys will be there along with a mediator. The mediator's job is to attempt to negotiate a settlement between the parties. The mediator does not have the power to force you to settle. That remains a decision for you and your attorney.
Trial. The final stage in any lawsuit is a trial. Nearly 95% of cases settle before they get to trial. But depending on what happens during the course of the lawsuit and what the Defendant is willing to do to settle the case, you might choose to go to trial. At trial, a jury of people from the community is the ultimate decision maker.
Why File a Lawsuit?
Most people who file a lawsuit do it because they want to know what really happened, and they do not want what happened to their child to happen to any other child. It boils down to two main reason:
Sunshine. The institution has not told you the full story. Instead, you are getting excuses that they can’t tell you everything. Or, the institution did not conduct any sort of real investigation into what happened, and you don’t know where to start.
You don’t want it to happen to another child. You have seen the devastating impact on your child, and you rightly want to make sure that no other child or parent has to go through this.
The fact of the matter is that a lawsuit is the way to change behavior. Most likely you have already spent a lot of time talking to the institution, maybe even before the assault happened. And most likely all of that effort did not result in a change in the institution’s behavior. A lawsuit is how you get access to the information the institution has and how you finally get them to listen.
But you should think carefully before you file a lawsuit. It will be difficult on you and your child. The defense lawyers will try to embarrass you and make your life unpleasant. They will try to blame you by suggesting that bad or inattentive parenting is what allowed the assault to happen.
You, frankly, are going to have to be brave and endure the sacrifice. The only way to make any change is to step where other people fear to tread. Think about the 9 African-American students who enrolled in Little Rock Central High School in 1957. You’ve seen the pictures of the screaming and the hatred. They were just kids, and they had to take on an entire city of adults. If they can do it, you can do it.
Why File a Lawsuit Against an Institution?
If you or your child has been sexually assaulted, then certainly the perpetrator should be called to account for such horrific actions. Sometimes the perpetrator is charged criminally and a local prosecutor becomes your advocate to criminally punish the perpetrator.
But you may question why should you file a civil lawsuit against the organization where the sexual assault happened? The simple answer is because institutions that sponsor children know they are a locus for sexual assault.
The United States Department of Education has repeatedly warned schools that sexual assaults are occurring within their walls. The Department of Education has issued studies reporting on the prevalence of teachers or staff members sexually assaulting students. Gathering data from victims can be very difficult and tends to be underreported, but it has been estimated that 10% of students are victims of sexual misconduct by educators.
The Department of Education also has issued guidance letters to schools on sexual assault perpetrated by both peers and adults. The DOE has told schools that they must train their staff to detect and respond to the threat of sexual assault of students.
- Letter from Russlynn Ali, Assistant Secretary for Civil Rights, Office for Civil Rights, U.S. Dep’t of Educ., to Colleague (Oct. 26, 2010), available at: http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.html
- Letter from Russlynn Ali, Assistant Secretary for Civil Rights, Office for Civil Rights, U.S. Dep’t of Educ., to Colleague (Apr. 4, 2011) available at: http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf
Institutions know they have a responsibility to protect kids. When you leave your kids with an organization, you have to trust them. You aren’t there, and you need them to stand in your shoes and protect your child.
You may not know that sexual assault is happening to children, but institutions know. You don’t know the facts and the statistics because institutions keep that information secret. But they know what the dangers are. They train their staff and send them to conferences. They have access to resources. The question is how they allocate those resources and whether they take the threat of sexual assault seriously enough to prioritize the protection of children.