Sexual abuse is, among other things, an assault and the principles which apply to physical assault also apply in these circumstances.
A claim against the assailant or criminal compensation may be available. As with most assault claims, a claim against the assailant will usually not be viable because of lack of assets and because also of the limited scope of criminal compensation, it is worthwhile investigating whether or not a third party can be attributed liability for the resulting injury.
There is usually no defence (except consent) to sexual assault. Children cannot provide consent.
Assaults which have occurred many years previously have time limit problems. The 3 year limitation period applies so that the leave of the court is required before any claim can be maintained where proceedings are commenced outside the 3 year period. For persons who are under 18 at the time of the abuse or who have been under a legal incapacity (eg unsound mind) special rules apply.
Extensions of time are difficult to obtain and requires much of the legal investigation which would otherwise be deferred until a later stage of the proceedings to be undertaken at the outset.
In these types of claims it is common to issue the proceedings against the practitioner and argue the claim both as an assault and negligent management of the health condition for which treatment was being sought. Medical insurers sometimes exclude cover for this type of claim which means that any judgment will have to be recovered from the doctor personally.
There is no legal impediment to a child suing his or her parents but issues relating to the absence of insurance cover and availability of parentsþ assets to meet any successful judgment apply.
Where a teacher or carer sexually abuses a pupil or where an institution (eg school or government department) which has reasonable notice of the possibility of such abuse fails to prevent it, a viable claim may arise against that institution.
Generally it must be shown that the institution knew or circumstances existed such that it ought to have known, of the offending conduct.
There are a number of technical defences which must be overcome particularly where religious orders are named as the institution responsible for the abuserþs activities.