If you talk with any social worker or psychologist about sexual abuse, you will learn that it is a more common problem than society will acknowledge. Sexual abuse has devastating consequences which result in severe damage to the victims and the intimate, emotional relationships which they develop throughout their lives. Sadly, often the victim does not seek desperately needed therapy and treatment because of financial hardship and the lack of health insurance resulting in an untreated serious health condition and years of suffering.

The damage caused by abuse is mostly unnoticed by society and the predators who commit the offenses too often escape unpunished. As a result of embarrassment, misplaced guilt, and lack of faith in the justice system, victims and guardians of the victims do nothing and feel helpless. Fortunately, although it has not been widely explored, the law has a window of opportunity to compensate the victim for the pain, suffering, and humiliation caused by sexual abuse.

In some fact-specific circumstances, the law in Pennsylvania permits victims of sexual abuse to obtain substantial monetary compensation from the victim's guardian's home owner's insurance policy. Unfortunately, an abuse victim can not recover insurance benefits from a lawsuit directly against the abuser or molester because all home owner's insurance liability policies come with an exclusion for intentional and criminal acts and have an exclusion for claims against policies on which the victim is a named insured.

Regrettably, the lack of available insurance can render a lawsuit unfeasible due to the unlikelihood of financial recovery. However, where sexual abuse occurs in the custody of a guardian who is responsible for the safe keeping of the child and the guardian knows or should know of the potential for abuse by the molester for whatever reason, then the victim can recover insurance benefits up to the limits of the guardian's home owner's insurance liability policy under a theory of "negligent infliction of emotional distress."

The legal theory of negligent infliction of emotional distress is little used and often overlooked by the legal community because of the uncertainty of and prejudice against psychological and mental injury. Indeed, regarding workers' compensation claims, Pennsylvania Courts have been so strict against mental injuries that they have almost judicially legislated such claims out of the Workers' Compensation Act. However, in most instances, the damaging effect of sexual abuse is so crippling to a child that a capable mental health provider along with a family physician should be able to meet the criteria for a compensable emotional distress claim.

G. Lawrence DeMarco, LLM

Web Blog