Google searches for “What is sexual harassment?” hit a five-year high in the weeks following the NY Times’ Harvey Weinstein exposé. Similar spikes for the terms “sexual misconduct” and “sexual assault” occurred around the same time. In the wake of the #MeToo movement, people are left wondering: What is sexual harassment vs. sexual abuse? What is considered a crime; what is a civil violation; and what is simply inappropriate (albeit legal) behavior? While there are many gray areas, we do our best to separate some of the fact from fiction to give you a clearer picture of how these different issues are addressed and litigated in California.
The Facts Surrounding Sexual Harassment vs. Sexual Abuse
Myth: “If someone cat-calls me on the street, he’s breaking the law.”
Fact: Illegal sexual harassment is largely defined by employment law.
Sexual harassment is annoying, yet legal, if done at a bar or on the street. You can file a police report, but you generally can’t sue someone for cat-calling or touching you in public. In most of these cases, you may feel violated, but legality only becomes an issue if you have:
- suffered a financial loss that would warrant a civil lawsuit, or
- been physically assaulted to warrant criminal charges.
Common recourse is to have the police physically remove the offender from your presence, file a restraining order against the offender, or seek arrest for a petty crime like trespassing or disturbing the peace.
The one exception is sexual harassment occurring in the workplace. Sexual harassment is defined as “behavior characterized by the making of unwelcome and inappropriate sexual remarks or physical advances in a workplace or other professional or social situation.” The courts have determined that unwanted touching, the sharing of pornography, and/or unwelcome comments of a sexual nature creates a hostile work environment, which is illegal under Title VII of the Civil Rights Act of 1964 and California’s Fair Employment and Housing Act. California law prohibits sex-based discrimination in the workplace, which may include indecent propositions, indecent exposure, unequal treatment, inappropriate staring, and sexual favoritism.
Myth: “The term ‘sexual assault’ is in the California penal code.”
Fact: Sexual assault is a vague term that is not clearly defined.
Civil and criminal statutes do not use vague terms like “sexual assault.” California PC 243.3 defines sexual battery as a crime, stating: “Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery.” Sexual battery can refer to unwanted touching, kissing, rubbing, groping, or compelled sexual acts.
The next level in severity can be found in California PC 261 with the definition of rape (which is often mistakenly referred to as “sexual assault”): “Rape is an act of sexual intercourse where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.”
You may also note that “sexual abuse” is not explicitly codified. Usually, sexual abuse is interpreted to mean sexual acts with children perpetrated by adults—which is illegal and a crime in any context. Under California law, a minor is incapable of giving consent to an adult. The California Penal Code codifies child sexual abuse as: Lewd or Lascivious Acts with a Minor (PC 288), Annoying or Molesting a Child (PC 647.6), Unlawful Sex with a Minor (PC 261.5), and Sex with a Child Under 10 (PC 288.7)—which is subject to even stiffer penalties.
Colloquially, the term “abuse” implies a drawn-out process of grooming and multiple acts, whereas an “assault” is more of a one-time act of sexual violence. In addition to talking about children, we also use the term “sexual abuse” when there are developmentally disabled or elderly victims who are similarly unable to consent; by law, they are considered “Crimes Against Public Decency” (PC 261). When sexual abuse is committed by a spouse, it is considered a form of Assault & Battery (PC 243e).
Myth: “A school’s sexual harassment training and policies shield them from a lawsuit.”
Fact: Sexual contact between minors and adult staff members is always abuse—and always illegal.
In some sexual abuse cases, the schools point to sexual harassment trainings and policies in defense to allegations a staff member was sexual with students. However, there is no such thing as sexual harassment of children by adults. Any sexual contact or innuendo between adults and children is considered abuse. Sexual harassment of a child by an adult isn’t just inappropriate; it’s illegal—and extremely damaging to the child.
Schools are legally responsible to recognize, report, and respond to child abuse and neglect, including the sexual abuse of minors by trusted adults. When mandated reporters at schools in California fail to contact the police about known or suspected child abuse, they are guilty of a misdemeanor crime punishable by fines of $1,000 and up to six months in jail (which increases to $5,000 and up to one year in jail when the abuse results in grievous bodily harm or death.)
Sexual harassment training and policies are important to employment law, but there are more important steps schools should take to prevent child sexual abuse:
- All staff should be trained in recognizing predatory behavior, child sexual abuse prevention, and reporting
- They should be well aware of their roles as mandated reporters and be encouraged to report any sexual misconduct suspicions they may have directly to the local police, rather than up the chain of command at school
- Anyone working with children should be screened and vetted for a past history of criminal activity and sexual misconduct
- Adults should be well supervised when working with children
- Any complaints should be fully investigated and reported to the proper authorities
- Individuals suspected of sexual abuse should be removed from access to the children immediately
- School districts should seek to revoke teaching credentials of child abusers.
When these reasonable steps are not taken, schools can be held liable for their negligence. Schools that try to run their own investigations and interview the children themselves often do more harm than good. An experienced attorney will advocate for child victims of sexual abuse to the fullest extent of the law, exploring all failures and factors that led to the abuse.
Through investigations, expert testimonies, and legal prowess, a case can be made that the school district owed a duty of care to protect the student from harm.
Myth: “I filed a lawsuit in criminal court, so I can’t file a civil lawsuit.”
Fact: You can pursue both criminal and civil proceedings.
The law offers various opportunities for the pursuit of justice. Criminal proceedings can be brought against an individual perpetrator of sexual abuse with the end goal of determining innocence or guilt. If found guilty, an offender can be sentenced to prison, put on probation, charged a fine paid to the state, and put on a sex offender registry. Attorneys must prove their case “beyond a reasonable doubt.” To initiate criminal charges, victims must make a police report, which is then forwarded to the District Attorney if there is sufficient evidence backing the claim.
Civil proceedings can be brought against not only the offender, but liable third parties as well. For instance, if a child is molested by a teacher, the school district can be sued for negligent hiring and retention. You may also sue other individual teachers and administrators at the school who suspected or knew what was happening and failed to file a police report, as required by law.
The end goal of civil court is to determine whether or not the defendant(s) owe financial reparations to the plaintiff for harm likely to have been caused based on “a preponderance of the evidence.” If found liable, defendants can be forced to compensate victims for medical expenses, substance abuse treatment, counseling, therapy, lost wages and earning capacity, and emotional trauma. To initiate civil charges, victims should contact an experienced sexual abuse attorney who can provide legal counsel, help file paperwork, investigate, summon expert witnesses, and build a strong case on your behalf.
“Double jeopardy” does not apply to filings in both criminal and civil court. You can file lawsuits in both courts at the same time. Even if your criminal charges went nowhere, you can still succeed in civil court due to the lower standard of evidence, the definitions of liability, better investigation techniques, and differing strategies. If you succeeded in criminal court, it can be a slam-dunk to win the civil case, as the question of guilt may have already been answered. As civil attorneys, we frequently work with the District Attorney’s office on investigative work while both cases proceed through the appropriate courts.
Myth: “There is one deadline for filing a sex crime lawsuit in California.”
Fact: The statute of limitations varies greatly, depending on several factors.
“Statute of limitations” refers to the deadline for filing a lawsuit, which varies widely based on:
- Your Age: Children can file a civil lawsuit eight years after obtaining the age of majority (until age 26).
- The Court: Adults may have as little as two years to press criminal charges through the District Attorney’s office. Civil courts allow plaintiffs to file within three years of discovering the causal relationship between the actions of the defendant(s) and the damages suffered.
- The Defendant: Legal actions against certain defendants (such as the state government) must be initiated within six months.
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.