Sexual assault is typically thought of as an act committed by a stranger—sudden, forced, and oftentimes violent. However, these scenarios account for less than 20% of adult sexual assaults and less than 7% of child sexual assaults. Far more commonly, the victim knew the perpetrator, perhaps even romantically involved, leaving one to wonder, “when is it considered sexual assault?”
In this article, we will discuss the signs of sexual assault and what to do if you are a victim.
When Is It Considered Sexual Assault?
In California, sexual assault falls under Penal Code 243.4. Based on the law, it is considered sexual assault if the act involved physical contact and the touching of intimate body parts for the gratification and arousal of the perpetrator.
When identifying if an act was sexual assault, one should consider the following:
- Was consent given? Educational institutions in California say that consent goes beyond “no means no” to be defined as “yes means yes.” Since 2015, SB 967 has granted a “right to be believed based on a preponderance of the evidence,” which re-defined consent as “affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity.”
- Was consent given the entire time? You might be involved in physical sexual contact with consent, but decide you don’t want to continue. It is your right to revoke consent during any time of the act.
- Were you under the age of 18 at the time? In California, consent can only be given by a person who is over 18 years of age. Minors cannot legally provide consent. Penalties stiffen when the age gap between the perpetrator and the victim is greater than four years.
- Were/Are you disabled? The law is particularly protective of Californians with physical, cognitive, intellectual, sensory, and mental health disabilities. By law, those who are disabled cannot legally give consent to sexual activity. In the past, California courts have ruled that adults with child-like levels of comprehension and conversation level are unable to understand the consequences of sex such as impregnation or STDs and therefore, cannot give their consent.
- Was force involved? A victim may have been tricked, coerced, or otherwise pressured into engaging in sexual activity. Force may include verbal threats, physical violence, or use of a weapon (which elevates the crime to felony status.)
- Were you asleep, intoxicated, or otherwise incapacitated at the time? A person who is not of sound judgment and mind cannot legally consent to sexual activity. If the other person knew or reasonably should have known you were under the influence of drugs or alcohol or asleep at the time, assault charges can be pressed.
What to Do If You Were Sexually Assaulted
Press Criminal Charges
Talking to law enforcement about what happened may be difficult, but it is a necessary step if you feel you have been wronged and worry about what might happen if the perpetrator goes unpunished. Most sex offenders are recidivists, meaning they are likely to attack again. By remaining silent, you could be putting yourself and others at risk. As of January 1, 2017, there is no time limit for pressing charges in cases of sexual assault. Prior to that, California had a 10-year statute of limitations.
If you decide to report what happened, the police will investigate your case and forward it to the district attorney who will ultimately decide if there is sufficient evidence to press criminal charges. The end result for the perpetrator could be jail time, probation, fines paid to the state, and inclusion on a sex offender registry. If the district attorney rejects your case, you can still file a lawsuit in civil court.
Seek a Civil Recovery
Civil court represents another option for sexual assault victims. It allows for an expanded scope of liability that may include employers, school districts, church dioceses, or youth organizations that have a legal duty to protect you. A civil lawsuit can help victims recover compensation for damages suffered as a result of the assault. Even if your criminal case is still pending or lost in court, you can still file a civil lawsuit against the perpetrator or other third parties involved. Civil cases are decided based on a preponderance of the evidence, meaning the judge and at least nine out of the 12 jury members must agree that it’s at least 51% likely the alleged act was committed. The statute of limitations for filing a civil lawsuit for sexual assault in California has recently been extended with the passing of Assembly Bill 218.
Filing deadlines can be complicated, as they are always changing. Depending on when your assault took place, you may have more time to file a legal complaint. It’s best to reach out to an experienced sexual assault attorney if you are unsure.
Contact an Experienced Bay Area Sexual Assault Attorney
It can be difficult to know the signs of sexual assault, especially if the act was committed by someone you know and trust. By reaching out to an experienced sexual assault attorney, you’ll receive expert advice and know exactly how to proceed.
DISCLAIMER: The information in this blog is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this blog or on this website should be construed as legal advice from Lewis & Llewellyn LLP. Neither your receipt of information from this website, nor your use of this website to contact Lewis & Llewellyn LLP creates an attorney-client relationship between you and the firm or any of its lawyers. No reader of this website should act or refrain from acting on the basis of any information included in, or accessible through, this website without seeking the appropriate legal advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s jurisdiction.