Representing Abused Children: The Changing Law

by Joel Levin*

The statistics are familiar and grim. In Ohio alone, in 2001 there were 2,876,999 children under 18 years old. The percentage of children living in poverty was 16.2%. There were 51,031 maltreatment victims with the number of fatalities equaling 2.8 children/100,000. In 2001, the number of children in foster care was 21,584. The total number of adoptions was 2,230.

It is controversial whether the growth in abuse cases represents a growth in incidents or merely an increasing recognition of harrowing reality. However, actions throughout the court system — whether criminal, juvenile, domestic relations, or in the tort system — are dramatically on the rise. This two-part article attempts to provide some perspective on the legal issues encountered when representing abused children, first looking at the substantive law, then at issues of practice and procedure.

Abuse cases are fraught with legal complications, beginning with the initial question of whom to sue. That said, with virtually no exceptions, tort cases involving abused children almost always are ones of vicarious liability. The actual murderer, torturer or rapist is invariably serving some indefinite, if not nearly long enough, sentence, while the civil suit proceeds against an individual, group, church, school board, or agency who should have been paying attention when the murder, torture or rape was occurring. The plaintiffs plead vicarious liability, often involve government agencies claiming sovereign immunity, and are defended on a panoply of defenses ranging from intervening criminal act to sovereign immunity to failure of notice.