The Civil Action for Sexual Battery: Therapeutic Jurisprudence?

32 Pages Posted: 27 Jul 2014

See all articles by Bruce Feldthusen

Bruce Feldthusen

University of Ottawa - Common Law Section

Date Written: 1993

Abstract

Increasingly, victims of rape, sexual exploitation, incest, and other child sexual abuse are seeking legal relief from the civil justice system. The plaintiffs in these sexual battery tort actions are almost always women, the majority of whom were battered when they were children. The defendants were always men, and men who knew their victims prior to the battery. Judgement has been given for the plaintiff in every case except one, but the defendants are frequently judgement-proof. It appears that personal, non-pecuniary goals account for as much or more sexual battery litigation than does the prospect of monetary damages.

This article employs the emerging perspective of therapeutic jurisprudence to explore whether civil litigation might assist in the sexual battery victim’s psychological recovery, as many such plaintiffs appear to expect it will. Section II outlines the potentially greater therapeutic benefits of tort compared to criminal prosecution. These derive mostly from the formal equality of tort law, and the relatively greater degree of victim control that it affords. These theoretical advantages are assessed with reference to what little relevant empirical and clinical literature exists. Section III considers more specifically the therapeutic implications of a civil suit deepening on whether it follows a criminal conviction, criminal acquittal, or no criminal action at all.

The decided cases are too new, too few, and probably too unrepresentative, to support any firm conclusions about the therapeutic benefits of the sexual battery action. This article attempts instead to isolate specific issues for further consideration and empirical study. Research of that sort will enlighten us as much about tort law generally as about sexual battery in particular.

Keywords: sexual battery, cases, tort, plaintiff, women, defendant, judgement, jurisprudence, civil litigation, victim

Suggested Citation

Feldthusen, Bruce, The Civil Action for Sexual Battery: Therapeutic Jurisprudence? (1993). "The Civil Action for Sexual Battery: Therapeutic Jurisprudence?", Ottawa Law Review, Vol. 25, pp. 203-235, 1993, Available at SSRN: https://ssrn.com/abstract=2472460

Bruce Feldthusen (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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