Inside Legal: J.S. and M.S. v. R.T.H.

Ps (12 and 15-year-old girls) spent a lot of time with their neighbor in his horse barn.
The neighbor, an older man, sexually abused the girls for more than a year.
The man was convicted and put in jail for his crimes.
Ps brought actions against the man and his wife. Man conceded liability. Wife (D) denies liability.

Does a wife who suspects or should suspect her husband of sexual abuse have any duty of care to prevent such abuse?

When a spouse has actual knowledge or special reason to know of the likelihood of his or her spouse engaging in sexually abusive behavior against a person, a spouse has a duty of care to take reasonable steps to prevent or warn of the harm.

In determining whether a duty is to be imposed, a court must weight several factors…

The nature of the underlying risk of harm (its foreseeability and severity)
The opportunity and ability to exercise care to prevent the harm
The comparative interests of and the relationships between the parties
The society interest in the proposed solution based on public policy and fairness.

A person can be charged with knowledge if they are in a position to discover the risk of harm
Duty is not rigid but a malleable concept that must adjust to changing social conditions.
When a D's actions are relatively easily corrected and the harm sought to be prevented is serious, it is fair to impose a duty.
A wife may well be the only person with the kind of knowledge or opportunity to know that a particular person is being sexually abused or is likely to be abused by her husband.
There is a strong policy in this state to protect children from sexual abuse.
There is a statute that requires people (not just psychiatrists or doctors) to report suspected sexual abuse of children.
The societal interest in enhancing marital relationships cannot outweigh the societal interest in protecting children from sexual abuse.

Inside Legal