In civil actions for rape, the quantum of proof required is less than in criminal prosecutions for the offense[i]. The legislature has defined carnal knowledge of a female under the age of 16 years as rape whether the action be civil or criminal[ii].
If a female is capable of consenting to sexual intercourse and if she consents, she cannot commence any civil action. However, a person committing statutory rape with the actual consent of the female will be liable in a civil action generally.
In civil actions on rape, only a preponderance of evidence is required. If the evidence does not show an assault or rape, or shows consent on the part of the woman, then a verdict against defendant must be set aside[iii].
According to some jurisdictions, failure to make a complaint is merely an important circumstance to go to a jury in a civil trial for damages for rape and will not make the matter of complaint a question of law.
A delay or failure to complain can be accounted for by proof of circumstances excusing such delay[iv]. Therefore, a plaintiff’s failure to complain or delay in complaining is not conclusive against such person’s right of recovery[v].
It is to be noted that if a woman voluntarily surrendered herself to a person on a previous occasion indicating her willingness and such a person can show the same in his defense[vi].
In civil actions based on rape, damages can be awarded in various circumstances. Some of the elements of recoverable damages in a civil action for statutory rape are physical pain and mental anguish, including humiliation and embarrassment by the severance of social relationships.
Damages are recoverable for mental suffering consisting in a sense of wrong or insult, indignity, humiliation or injury to the feelings. Elements that may be taken into consideration in determining mental suffering damages include the affront to a plaintiff’s personality, and the indignity, disgrace, humiliation, and mortification to which he was subjected by the defendant’s conduct[vii].
In addition to the civil and criminal penalty, the court can order restitution for any sexual offense[viii]. The order of restitution will direct the defendant to pay to the victim the full amount of the victim’s losses as determined by the court.
The full amount of the victim’s losses includes any costs incurred by the victim for:
- medical services relating to physical, psychiatric, or psychological care;
- physical and occupational therapy or rehabilitation;
- necessary transportation, temporary housing, and child care expenses;
- lost income;
- attorneys’ fees, plus any costs incurred in obtaining a civil protection order; and
- any other losses suffered by the victim as a proximate result of the offense.
[i] Kirkwood v. McFarland, 47 So. 2d 74 (La.App. 1 Cir. 1950).
[ii] Hough v. Iderhoff, 69 Ore. 568 (Or. 1914).
[iii] Kirkwood v. McFarland, 47 So. 2d 74 (La.App. 1 Cir. 1950).
[iv] Adams v. Commonwealth, 219 Ky. 711 (Ky. 1927).
[v] Kirkwood v. McFarland, 47 So. 2d 74 (La.App. 1 Cir. 1950).
[vi] Adams v. Commonwealth, 219 Ky. 711 (Ky. 1927).
[vii] Bruns v. Bruns, 290 Ark. 347 (Ark. 1986).
[viii] 18 USCS § 2248.