Laws about Sexual Assault and Sexual Battery in Georgia
From Roy Moore and Donald Trump to Kevin Spacey and Charlie Rose, allegations of sexual assault and sexual battery among the political and entertainment elite have been widespread in recent months, and new ones seem to emerge almost every day. Sexual battery has serious consequences for the actors, not only in criminal court and the court of public opinion, but also in civil court.
If you or a loved one has been the victim of sexual assault or sexual battery, we are here to help.
Establishing a Claim
In civil court, the elements of a battery claim are more generalized and therefore easier to establish than in criminal court. Battery is an intentional tort, which obviously means that the tortfeasor (wrongful actor) must intend the conduct; in contrast, most other torts are negligence (carelessness) cases. The elements of battery in Georgia are:
- Harmful or Offensive Touching: Quite contrary to popular myth, battery is one of the few torts that does not require a physical injury. It’s also noteworthy that the touch can be harmful or
- Victim’s Person: Technically under the law, kicking a person’s wheelchair may not constitute a battery. The touch must occur on the person’s body or something very closely associated with the body, such as clothing or a walking cane.
- Intent: In this context, victim/plaintiffs need only establish intent to touch and not intent to harm (e. the harmful or offensive touch cannot have been accidental).
- Causation: There must be a direct relationship between the tortfeasor’s conduct and the victim/plaintiff’s damages. Most victims are entitled to compensation for both economic and noneconomic losses.
Furthermore, in civil court, victim/plaintiffs need only establish their claims by a preponderance of the evidence (more likely than not). The standard of proof is much higher in criminal court, where prosecutors must establish guilt beyond any reasonable doubt.
Common Defenses in Sexual Assault and Sexual Battery Torts
Alleged victims often argue that their touches were not harmful or offensive. But under Georgia law, if the touch occurs in the “primary genital area, anus, groin, inner thighs, or buttocks of a male or female and the breasts of a female,” it was essentially offensive as a matter of law. See O.C.G.A. § 16-6-22.1(a) (sexual battery). Victim/plaintiffs usually need only prove intent and causation, as outlined above.
Some alleged victims also argue that they had a sex addiction which compelled them to behave in the way they did. But condition is never a defense to conduct (e.g. alcoholism is not a defense to DUI). Such arguments are essentially attempts to revive the now-debunked irresistible impulse defense.
Sexual battery victims may be entitled to substantial compensation. For a free consultation with an experienced personal injury attorney in Atlanta, contact Butler Kahn. We routinely handle cases in the metropolitan Atlanta area and beyond.
Third Party Liability In Sexual Assault Cases
Many sexual assaults would not occur if a landowner had not created the proper environment for such an incident. The most prominent examples include a burned-out light that creates a dark parking lot or insufficient security guards to properly police a large crowd. The law recognizes the relationship between environment and act, which is why property owners are often responsible for damages in these situations.
Such damages normally include money for both tangible losses, such as medical bills, and intangible losses, such as pain and suffering. In many extreme cases, additional punitive damages may be available as well.
Duty of Care
The first step in obtaining compensation against a landowner is to determine what legal obligation, if any, said landowner had. In Georgia and many other states, the nature of the duty depends on the nature of the relationship between landowner and victim.
- Invitee: If the victim’s presence conveyed an economic or noneconomic benefit on the landowner, or a potential benefit, the victim was an invitee. In these cases, the landowner must ensure that the property is reasonably safe.
- Licensee: People whose presence on the land is not offensive to the landowner, although they received no express or implied invitation, are licensees. Guests of hotel guests are a good example. If the victim is a licensee, the owner has a duty to warn about any latent (nonobvious) defects. The aforementioned burned-out light is a latent defect during the day and an obvious defect at night.
- Trespasser: If the victim has no permission to be on the land, the owner has no duty. Tales of injured burglars who sue the homeowner for damages are essentially urban legends.
If the victim was a child trespasser or a foreseeable trespasser, liability may still attach under the attractive nuisance rule or the frequent trespasser rule.
The landowner must have actual or constructive knowledge (knew or should have known) about the defect which caused damages.
Direct evidence includes repair invoices, inspection reports, and other “smoking guns.” Under Anjou v. Boston Elevated Railway Company, circumstantial evidence is admissible to establish constructive knowledge. Essentially, the longer the defect existed, the more likely it is that the owner had constructive knowledge.
Commonly, landowners deny liability in these situations, claiming that the assailant was solely responsible for damages. That’s simply not the case. Under Sturbridge Partners v. Walker, if a “substantially similar” event had occurred on or near the owner’s property, the owner is a responsible third party.
Victim/plaintiffs need only establish substantial similarity by a preponderance of the evidence, or more likely than not.
Landowners may be jointly responsible for sexual battery and other torts which occur on their property. For a free consultation with an experienced sexual assault attorney in Atlanta, contact Butler Kahn. We do not charge upfront legal fees in tort cases.