Over the past several years, there has been an alarming spike in the number of allegations of misconduct and sexual abuse at massage parlors throughout the country, including, specifically, against Massage Envy Franchising LLC, a massage parlor and spa chain with franchises in California. Misconduct and abuse at massage parlors can take many forms, such as inappropriate touching, groping, massaging areas of the body without proper consent, non-consensual penetration, and more. This abuse can impose, intentionally or otherwise, severe and lasting physical and emotional distress.
What to do if you believe you may have been the victim of a sexual misconduct or abuse at a massage parlor
Because misconduct and sexual abuse at massage parlors in California can vary widely, there are many avenues that a victim of this abuse may seek in order to obtain a full recovery for their injuries. After such an abuse has occurred, there are generally several avenues that a victim should immediately pursue:
First, if unwanted penetration or a similar sexual act has occurred, the victim should immediately go to the emergency room for medical evaluation and treatment, and so that important evidence can be obtained and preserved for future use in a criminal or civil trial.
Second, the victim should report this abuse to the police, so that the police can begin a full investigation of the circumstances of the crime.
Finally, the victim can (and should) pursue legal claims against the perpetrator of this crime, and against the operators and owners of the massage parlor at which this abuse occurred. Pursuing a legal claim against the perpetrator of the crime may carry time limits (as discussed later), and almost always requires the help of a skilled and experienced attorney in this field.
Criminal and Civil Proceeding: The Next Steps
Sometimes, victims of this manner of abuse are confused about the differences between a criminal and civil proceeding in the context of sexual abuse. Although both are means that justice can be served against the perpetrator of the abuse, a criminal and civil trial have very different purposes and can yield different results for victims. In California, criminal cases are initiated by a state prosecutor, who collects evidence (such as physical evidence from rape kits or equivalent), interviews key witnesses, and compiles information with the aim of obtaining a conviction against an abuser in court. A conviction generally requires the prosecutor to prove his or her case “beyond a reasonable doubt,” which means that the prosecutor must amass enough evidence to convince a jury that the abuser committed the alleged crime beyond any reasonable doubt — usually a high and challenging burden. A conviction results in criminal penalties for the abuser, such as fines, probation, or prison time, however it does not provide direct financial restitution for victims. Moreover, in general, only the actual abuser can be punished for these crimes, and not the corporate entity that may have hired the abuser (or other employees who were aware of the crime, unless they are also, separately, charged for the crime or a similar crime). Although victims may feel that justice has been served in that the perpetrator has been punished and, hopefully, prevented from continuing his or her behavior, victims will not be financially compensated for their often substantial physical and emotional damages.
In a civil case, the abuser him or herself brings a suit against the parties thought to be responsible for the abuse. This can include the actual abuser, the abuser’s co-workers, managers, the owner of the massage parlor, and so on. The goal of a civil case (in this case, a “tort” case) is to obtain financial recovery for the victim. A victim is required to prove that the incident is more likely than not to have occurred, which is a much lower bar to meet than in a criminal case. If a victim prevails in a civil case, he or she may receive financial compensation from anyone or any combination of parties that are sued: the actual abuser, co-workers, managers, the owner of the business, insurance companies, the owner of the company, and so on.
Both criminal and civil cases can occur concurrently. California civil law, except in some specific cases regarding minors and regarding governmental entities, imposes a two-year period of time (the “statute of limitations”) during which victims can bring cases against abusers. This means that a victim may often be required to bring suit in civil court while a criminal case is pending.
In bringing a civil claim as a result of sexual abuse at a Massage Envy massage parlor or a similar massage location, a victim can sue the massage therapist directly, the individual franchisee or owner of the massage location, and, in some cases, the landlord, owner of the property (if different from the owner or operator of the franchise), or franchisor (such as the Massage Envy corporate entity).
A victim of this manner of abuse may have a strong claim directly against the massage therapist for sexual battery, a tort entitling the victim to financial recovery. California has some of the nation’s strictest sexual abuse laws, and requires proving that the alleged perpetrator of the abuse acted with intent to cause sexually offensive conduct, and that such offensive conduct actually occurred. In the case of a sexual assault at a massage parlor, a victim would therefore have to prove that the massage therapist actually intended to cause offensive conduct (as opposed to accidentally causing such conduct), and that the conduct actually occurred.
Getting the Financial Compensation You Deserve
Unfortunately, however, in many cases, pursuing a claim against the massage therapist directly may yield less than a full recovery for the injuries, mostly because the massage therapist might be functionally insolvent — they simply lack the money to pay for the damages they caused. Moreover, the massage therapist may lack insurance, or any other assets substantial enough to satisfy the judgment levied against the therapist. Although some massage parlors carry general liability insurance that could cover the actions of abusive therapists, this is not a legal requirement, and some businesses, to save money, will fail to carry such policies, or will carry policies too small to actually result in recovery for victims.
In these cases, victims of this manner of abuse may pursue alternate claims against the massage parlor directly. One such claim to be pursued is a negligence action: essentially, that the manager, owner, operator, or franchisee of the massage parlor failed to perform some duty they were entrusted to perform, that this failure resulted in the damages alleged, and that there were actual, physical damages alleged (as opposed to solely emotional distress).
The owner and operators of a massage parlor owe a general duty to both their clients and the general public. Owners and operators owe a duty to reasonably screen and to supervise their employees and agents. They must ensure that these individuals do not affirmatively harm customers or, through lack of training or supervision, unknowingly cause customers physical or emotional harm. Quite frequently, massage therapists who act inappropriately or sexually abuse customers are repeat offenders of this manner of abuse, and the massage parlor may be well aware of previous allegations against this employee or agent. It is not infrequent to see massage therapists that are fired from a previous employer for sexual abuse be re-hired by another massage parlor. Frequently, these therapists will not reveal their previous transgressions. Despite this, a massage parlor or spa has a duty to investigate that the employees they hire for massages or other treatments on customers are qualified to perform massages in a manner consistent with a customer’s reasonable expectations.
What If Management Pleads Ignorance?
Quite commonly, massage parlor operators, owners, franchisees, or the franchisor, will claim that they were unaware that their employees or agents had previously committed sexual abuse, and therefore were unfit to be hired, or needed close supervision or training. They may argue that, because they were unaware of this previous history, they are therefore not liable for the actions of their employees. Unfortunately for them, this argument falls flat. Courts in California apply a reasonableness standard to the conduct of employers such as massage parlor operators. This means that courts impose a duty on massage parlor operators to do what a “reasonable” massage parlor operator or similar operator would do given the circumstances. For example, given the nature of the services to be provided, it would likely not be reasonable for a massage parlor operator to fail to investigate whether that employee had been charged or convicted with sexual abuse prior to hiring the employee. The employer would therefore be liable for the employee’s actions, even if the employer had actually failed to do such an investigation. It would similarly be unreasonable for an employer who had actual knowledge of the employee’s sexual misconduct to fail to investigate this misconduct further, or to continue employing this same employee in a position where he or she could continue to abuse customers.
After a victim is able to prove that those in charge of the massage parlor both had a duty to protect against the sort of injury alleged, and failed to fulfill this duty, the victim must show causation: that is, but for the massage parlor’s negligence, the injury would not have occurred. In many massage parlor abuse cases, this is quite obvious: for example, had the employer fired the employee prior to the massage, the abuse would not have occurred.
Finally, the victim must show actual damages. Although, in sexual abuse cases, victims quite frequently suffer from extensive and sustained emotional distress, actual damages, such as evidence of the physical contact made by the massage therapist, must be shown. A skilled attorney can use testimony from doctors, coworkers, friends, and family to show the manner of damages that the abuser’s actions have resulted in. Damages in sexual abuse cases generally cover hospital visits and medical treatment (which may continue over time), such as therapy or treatment for post traumatic stress disorder, and for the emotional damages and toil such abuse can take.
Victims may also be entitled to damages beyond merely so-called compensatory damages (money to compensate the victim for medical bills, and emotional and other distress). For example, if it can be shown that the massage parlor has a history of employing sexual predators, or has failed to investigate similar cases in the past, or that the employee in question has had a history of sexual abuse, a court may impose so-called “punitive damages.” These are damages intended to punish the massage parlor. Recoveries in these cases can be quite substantial, sometimes up to triple the amount of compensatory damages received.
The Myth of “He Said, She Said”
Many victims worry that, because they and the abuser are the only people with direct knowledge of the incident, their legal claim will boil down to a “he said, she said” case, in which it is simply the victim’s word against the abuser’s. On the contrary, the vast majority of all criminal and civil cases regarding sexual assault contain no eyewitness reports of the abuse outside of the testimony of the abuser and victim. Skilled attorneys can use other evidence (such as evidence obtained from rape kits, if any) and the testimony of family, friends, and analysis of the behavior of the victim after the abuse, to show that the abuse occurred and had a substantial impact on the life of the victim. The lack of documentary evidence of the abuse does not mean that the victim will be unsuccessful in obtaining recovery.
Similarly, many victims are concerned that the process of bringing a lawsuit will involve the disclosure of their name and other personal details that may be highly embarrassing. Experienced attorneys, however, can submit documents to the court using pseudonyms or assumed names (such as “Jane Doe,” for example) to protect the identity of victims and, when documents may require full disclosure of real names, ensure that those names and details are not publicly disclosed or viewable.
Victims of massage parlor misconduct and sexual abuse have many options under law to resolve what is often an enormously stressful, devastating interaction. The legal issues discussed here represent only a small fraction of the possible avenues of recovery for these victims. As suggested, the complexities involved in advocating for victims’ rights in these circumstances necessitate the need for an attorney who can both navigate the complex legal issues involved, and can also zealously advocate on behalf of their client for the most complete and just recovery, while, at the same time, preserving the victim’s identity, and compiling copious evidence substantiating the abuse.
If you or someone you know has been the victim of sexual abuse or misconduct at a Massage Envy location or any other massage parlor, please contact Thompson Law Office either by calling (650) 513-6111 or emailing email@example.com for a risk-free consultation.