Are Civil Money Damages Available After a Sexual Assault?
This is a question that might be asked following yesterday’s report of two women accusing a massage therapist of inappropriately touching them. According to a story in KSL News, the accused was a masseuse at a Salt Lake City, Utah, Massage Envy, and has since been charged with object rape, a first-degree felony, forcible sexual abuse, a second-degree felony and sexual battery, a class A misdemeanor. One of the victims is a 51-year-old woman, the other a 19-year-old woman. The alleged perpetrator is 64 years old.
While the criminal prosecution plays out, what about potential civil remedies? The involved criminal statutes do provide for “restitution.” However, the recovery in restitution can be woefully inadequate, sometimes limited to just what the victim may be out of pocket from therapies, prescriptions, or other medical procedures to treat the mental and physical injuries received. Even then, recovery is based on what the accused is able to pay. This amount will certainly be compromised given that this individual probably lost his job and will likely have difficulty finding another.
Which then raises the question of whether the facility where the alleged sexual assault happened bears responsibility for helping make the victims whole in situations like this.
We must first assume in this troubling story that Massage Envy never asked the alleged perpetrator to do what he is accused of doing. Neither can we assume that they are okay with what he allegedly did. However, in situations like this, there can be multiple chances for businesses to make sure the people they hire are fit for the job and remain fit for the job. It really starts when they hire a person. If, in this case, the massage parlor ignored warning signs at the application phase, failed to perform background checks where they may have discovered red flags, then this could be the basis for a negligent hiring claim.
And the duties don’t end once the masseuse is hired. Facilities like this have additional duties to make sure they train their staff that in situations where customers are in compromising and vulnerable positions (as in when they’re half naked getting a massage!), that there is zero tolerance for any behavior that would be even suggestively sexual or inappropriate.
On top of training, facilities such as Massage Envy have added duties to supervise their staff to make sure everything is above board and to be sensitive to concerns that customers might be making about any of their massage therapists. Management also needs to keep their eyes open and be on the lookout for visual cues that customers are having an uncomfortable experience or that the staff is getting too “handsy” with the clientele.
Finally, in the event that the facility receives complaints of inappropriate touching, they need to respond immediately to investigate, and if necessary, suspend or terminate the offending masseuse. The failure to do so here would constitute negligent retention.
Legally speaking, the above duties can equally be applied to other businesses and professional relationships where trust is involved, such as counselor-patient, teacher-student, clergy-parishioner, scout leader-scout, fast food restaurant manager-teenage worker, to name a few. Violation of these duties can expose the business to civil liability for the resulting harm that surely comes from the serious crimes of sexual assault, object rape and forcible sexual abuse.
However, every situation is unique and depend on the facts of your individual case. To best know if your situation, or that of a loved one, involves professional or institutional negligence where civil remedies may be available, I would recommend you speak with an attorney with experience in this area to see what options may be available.