INSIGHTS On Massachusetts Personal Injury Law

Welcome to the SUGARMAN blog. We'll be sharing our perspectives on the state of the law and current legal issues in Massachusetts personal injury law. Issues relating to medical malpractice, construction site injuries, premises liability, product liability, motor vehicle accidents, insurance, and more will all be reviewed here by our team of lawyers who have prosecuted some of the most complex cases in Massachusetts personal injury law.

Articles Posted in Sexual Assault and Abuse

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Personal injury cases most frequently involve physical injuries – bone fractures, burns, lacerations, for example. The emotional injuries caused by a sexual assault are less visible but no less real or harmful. These emotional injuries are often present more difficulty in recovery and are resistant to treatment efforts.  Proof in court of emotional injuries most often requires the testimony of treating and/or consulting psychiatrists or mental health counselors.

In addition, the testimony of the victim, family members, teachers and others might be used to complete the picture for judge or jury of the extent of the emotional injury caused by the sexual assault.
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Most insurance policies do not provide insurance against the intentional, wrongful acts of the insured.  Thus, in a claim against the perpetrator of a sexual assault or abuse,  his homeowner’s, automobile or business insurance policy will not cover the claim.  This means that a court judgment against the sexual assault or abuse perpetrator would have to be paid by him individually and not by any insurance that he had.

The situation is different for negligence liability claims against the employer of the perpetrator or the landlord, rock promoter, or hotel that provides inadequate security. Although these insurance policies usually do not cover the intentional criminal acts of the insured, the policies have frequently been found to cover these types of sexual assaults. The courts have reasoned that the intent of the sexual abuse perpetrator is not to be attributed to his corporate employer or the security provider whose negligence permits the sexual assault.
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The general statute of limitations in Massachusetts for personal injury claims including those alleging damage as a result of sexual assault or abuse is three years. There are a number of exceptions to this general rule.

In cases involving sexual assault or abuse, the most important is where the assault or abuse causing the personal injury was committed on a minor victim. Section 4C of Massachusetts General Laws Chapter 260 has three alternative ways to compute the statute of limitations where the victim is a minor.
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There are two basic fact patterns that lead to a finding of negligence on the part of a company for failing to prevent a sexual assault. In the first, the assault is committed by an employee of the company. The injured victim can prove that the company failed to take reasonable steps to check the perpetrator’s background before hiring or during the employment.

An example of this might be failing to check the criminal record of a camp counsellor who had a record of a previous sexual assault or other sex-related offense. An alternative is to prove that the company failed to properly train, supervise and monitor its employees and thus failed to recognize warning signs that sexual assault was occurring or about to occur. As an example, again a sexual assault by a counsellor, but one with a clean record; however, the camp supervisor or director fails to monitor the counselor’s activities and so fails to observe the warning signs of on-going assaults.
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The general rule in Massachusetts law is that an employer is not liable for the intentional acts (in this case the crime of sexual assault or rape) carried out by its employees. There are, however, a number of exceptions to this general rule which can be called upon in sexual assault cases.

When the perpetrator’s employee is a common carrier, such as a school bus operator, transit company, airline, etc. and the sexual assault is upon a passenger in the course of a trip, the employer/common carrier is liable for the criminal sexual assault by its employee (or co-passenger also). Similarly, if the victim is a guest in a hotel, motel, inn, or other public lodging, the operator of the public lodging will be liable for the assault by either one of its employees or the victim’s fellow guests if the assault occurred at the place of lodging while the victim was a guest.
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Being a victim of a sexual assault or sexual abuse has long-term consequences the severity of which often only become fully apparent years after the sexual assault or abuse occurs. The criminal side of the justice system is designed to determine the guilt of the assailant or abuser and punish the guilty, but does not provide for these consequences of the assault or abuse suffered by the victim.

In a sexual assault lawsuit on the civil side of the justice system, the victim can seek compensation for the damage done as a result. However, as clear-cut as the incident or incidents of sexual abuse may have been, there are difficult legal issues to be confronted by the victim in collecting damages for the injury suffered. Frequently, the perpetrator is incarcerated or otherwise unable to pay for the injury he caused. So, although a substantial sexual assault judgment might be awarded against the perpetrator, actually collecting money from a perpetrator is rare. Civil claims for sexual assault are often brought against parties other than the perpetrator who have the means and ability to both prevent the assault or abuse and pay damages awarded for failing to prevent the harm. Examples of these types of claim are:
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