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When someone is sexually abused, they don’t always interpret what’s happened to be abuse. This misunderstanding is more common when children are the victims of sexual abuse, especially when the child was groomed by their abuser. There are many other reasons why a sexual abuse victim wouldn’t immediately make the connection. When these events aren’t addressed, they could result in signs of sexual abuse trauma manifesting into adulthood. 

While some adults may never think about their early sexual experiences, others may suffer acute disturbances in their everyday lives arising from unresolved trauma. Symptoms of sexual abuse that arise later in life may include difficulties with relationships and arousal, low self-esteem and depression, anxiety, stress management, identity crises, and lack of motivation.

This article will discuss how to identify the signs of sexual abuse trauma and how to seek recover compensation if your quality of life has been impacted by childhood sexual abuse.   

Recovering Memories of Childhood Sexual Abuse

Having no memory of certain parts of childhood is common. These “memories” may come back to you as a feeling of repulsion or anxiety. You may have a dream that awakens your suspicions that something really happened to you in the past that you have repressed or don’t recall. Or you may be unable to connect the dots of your past to explain changes in your demeanor. 

“While the majority of people experience the past as a collection of reflections and memories, positive and negative,” researchers surmised, “the past portrayed by childhood sexual abuse survivors was filled with memories of abuse and trauma that obliterated other memories.”

If you believe you have repressed memories of childhood sexual abuse, the best way to recover them is to work with a trusted therapist. A licensed mental health practitioner can help you revisit past trauma in a safe environment and work through any conflicts that may arise. 

Signs of Sexual Abuse Trauma in Adults

The signs of sexual abuse can take both psychological and physical forms. 

Sexual abuse can cause long-term symptoms of Post-Traumatic Stress Disorder, such as:

• concentration difficulties
• deep feelings of guilt and shame
• emotional outbursts
• extreme dislike of certain places, smells, sounds, people, or situations
• memory loss
• restlessness
• vigilance

Interpersonal relationships can be affected. Adults suffering from sexual abuse trauma may have:   

• anger issues and issues with holding onto resentment
• difficulty establishing boundaries or saying “no”
• easy stress within relationships
• fear of attachment or intimacy
• fear of being alone
• secrecy, and the inability to open up or trust

 Childhood sexual abuse almost always affects sexual behaviors, often leading to:

• confusion about sexual identity
• dislike or fear of sex
• mental escapes in order to enjoy sex
• going above and beyond to “please” others and gain acceptance
• promiscuity
• sexual fantasies of abuse, rape, or confinement 

There are also physical symptoms associated with childhood sexual abuse, such as:

• anorexia
• chronic pain
• digestive issues
• gynecological disorders
• headaches
• immune system disorders
• joint pain or arthritis
• lethargy and listlessness
• obesity and compulsive eating
• sexual dysfunction

These symptoms and signs can be associated with a number of other medical issues and are not necessarily relegated solely to childhood sexual trauma. There may also be other symptoms and signs not on this list. If you’ve experienced any of these symptoms, contact an experienced professional to seek help and avoid taking this journey of discovery alone. 

Unsure If You Were Sexually Abused as a Child?

Unearthing childhood trauma can lead to a spiral of research, worry, and panic. It can be easy to spend countless hours researching your symptoms. Try to stay balanced and practice good self-care. Daily exercise, healthy eating habits, meditation, and engaging in enjoyable hobbies.

If you are uncertain as to why you are presently suffering, it’s worth speaking with a qualified mental health counselor. Professional support is critical, whether it’s calling a mental health hotline, booking one-on-one time with a psychotherapist, seeking treatment for substance abuse, or joining a local support group.

Delayed Discovery: Seek Civil Justice for Past Abuse

If you’ve recently discovered that you were sexually abused, you have the option to pursue justice through the civil court system—even if the abuse took place many years ago. Most states have a deadline for filing civil lawsuits. In California, survivors of sexual assault and abuse have the opportunity to seek financial reparations until age 40. And, beginning January 2020, survivors have three years (until 2023) to pursue legal remedy for childhood sexual abuse, regardless of how long ago that abuse has taken place. 

California law also allows for delayed discovery in instances of childhood sexual abuse. This means you have within five years of the realization of harm to file a civil lawsuit seeking monetary damages. It does not matter how long ago you were abused. The law recognizes that certain realizations can come up later in therapy or may be triggered by life events or news stories. Mental illness can be latent for years and emerge in adulthood, causing widespread disturbances.

If you are uncertain about how to proceed upon recently discovering you were sexually abused, contact an experienced attorney.

Contact Experienced Sexual Abuse Trauma Lawyers 

If you recently realized a childhood experience constituted as child abuse, didn’t know the identity of your assailant at the time (but you do now), or you mistakenly believed the institution in charge of protecting you had the situation under control, you deserve to seek justice. 

The law is a complex maze of hurdles, but they are not necessarily insurmountable, given the right set of facts and a compelling argument. As you know, there is no arbitrary time limit on how long a person can suffer from childhood sexual abuse. Whether the abuse happened months or years ago, it’s never too late to seek healing from childhood sexual violence.

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.

The COVID-19 pandemic has contributed to the rise in reports of child sexual abuse during quarantine across the country. When asked by NPR, the Rape, Abuse and Incest National Network (RAINN)—which runs the National Sexual Assault Hotline—reported that by the end of March, with much of the country under lockdown, there was a 22% increase in monthly calls from people younger than 18, and half of all incoming contacts were from minors. Of those young people who contacted the hotline in March, 67% identified their perpetrator as a family member and 79% said they were currently living with that perpetrator. In one out of five cases where the minor was living with their abuser, RAINN assisted the minor in immediately contacting police.

For children who are vulnerable to (or have suffered) abuse during quarantine in California, help is just a phone call away.

Why Have Reports of Sexual Abuse During Quarantine Increased?

Abusers who would normally be distracted with work or other aspects of daily life pre-pandemic are likely spending more time at home, increasing their opportunity to abuse children who have also been ordered to stay home. Essential workers now have children at home and limited access to child care facilities, so they may be relying on others to supervise while they are working. Dating partners who may have previously lived outside the home have been hastily moved in to get around social distancing orders. And, many convicted sex offenders have been released early from prison due to fear of virus outbreaks behind bars. 

While lockdown orders have been put in place as a measure of public health and safety, home is not the safest place for every young person. RAINN reports that about 34% of child sexual abusers are family members. By closing schools and canceling youth activities like sports, children are removed from the watchful eyes of mandatory reporters—those trusted adults, like teachers, nurses, and child care providers, who are required by law in most states to report suspicions of child abuse or neglect.

What’s Being Done to Stop the Abuse

California Governor Gavin Newsom has set aside $42 million to support families affected by domestic violence and child abuse during quarantine. Initially, welfare checks were performed online and technology to do so was delivered to families in need. Protocols are now in place for social workers to visit homes. They may talk on the porch or in a hall, versus going deep into the home; they wear protective gear and stay six feet away.

On a national level, RAINN and other child welfare organizations are lobbying to make it easier for children to report abuse. According to Camille Cooper, RAINN’s vice president of public policy, “One of the solutions we came up with that we are now currently working directly with the leadership in Congress on is to get all of the online learning platforms that children are interacting with to have a reporting function on that platform in plain sight for children.” 

While local governments and national organizations are working to stop future abuse, those who’ve suffered abuse have options.  

What to Do if You’re Being Sexually Abused by Parents During Quarantine

In cases of sexual abuse by a parent or foster parent, a child can call 911 or one of the organizations listed below to be immediately removed from the situation. From there, the child may choose to pursue criminal charges that could result in jail time for the offending parent or file a civil lawsuit with the help of a litigation guardian to receive compensation (from the parent’s homeowner’s or renter’s insurance policy) which can be used to pay for any damages that have occurred or may occur as a result of the abuse. Because foster parents are typically vetted by foster care organizations funded by the government, a civil lawsuit against the organization can be filed if it failed to remove a child from a home after reports of abuse or if they failed to take the proper protocols when vetting the foster applicant.    

Resources for Immediate Child Sexual Abuse Help in California

• The Children’s Interview Center: (800) 670-7273
• The Child Abuse, Listening, Interviewing, and Coordination Center: (510) 895-0702
• The Children’s Advocacy Center: (626) 331-6700
• The Rape, Abuse & Incest National Network: (800) 656-4673
• The Joyful Heart Foundation: (212) 475-2026
• The ChildHelp National Child Abuse Hotline: (800) 4-A-CHILD or (800) 422-4453
• Darkness To Light: (866) FOR-LIGHT or (866) 367-5444 or text “LIGHT” to 741741
• National Center for Missing and Exploited Children: (800) THE-LOST or (800) 843-5678
• Stop It Now: (888) PREVENT or (888) 773-8368
• California Child Protective Services: 1-(800)-540-4000 or visit the link for local numbers
• National Parent Helpline: (855) 427-2736

You can always call 9-1-1 if you’re in trouble to connect with local law enforcement. You are not required to provide proof, but it is recommended that you see a Sexual Assault Nurse Examiner at the emergency department of your county medical center or by going to the nearest child advocacy center.

Contact an Attorney for Legal Help Regarding Abuse During Quarantine

If you have suffered sexual abuse during quarantine, or at any point in your life, you have legal options. You can choose to press criminal charges against the abuser and file a civil lawsuit. If you are unsure where to begin, an experienced legal representative can act as your advocate, providing counsel and empowering control over the course of the proceedings should you decide to pursue justice in civil court. 

The aftermath of child sexual abuse may take you through the full gamut of emotions—but you don’t have to go through it alone. Working with a California attorney who specializes in sexual abuse cases is about more than legal advice and paperwork. Lawyers can also point you in the right direction for seeking medical attention, connecting with crisis social workers and counselors, dealing with insurance issues, and getting your life back in the wake of disturbing events that were beyond your control.

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.

Post-Traumatic Stress Disorder (PTSD) not only affects soldiers who have gone to war, but also survivors of childhood sexual trauma. Increasingly, research is bridging gaps in the understanding about how the brain processes traumatic experiences in early childhood and erratically pieces them back together later in life. Scientists have explored the epigenetic changes that occur with child molestation that account for the development of PTSD in adulthood. What’s clear is that trauma has the power to literally shape one’s DNA. The good news is that therapeutic approaches can significantly improve function and quality of life, while the civil court system provides a path to greater empowerment and the financial resources necessary to pay for your recovery, especially if you have PTSD from being molested as a child.   

Risk Factors for PTSD Exhibited in the Aftermath of Trauma

Research published in the American Journal of Psychiatry revealed several PTSD risk factors:

• Dissociation during and after the trauma: Children may daydream during inappropriate sexual encounters as a coping mechanism to escape the reality of the situation. After the event, feelings of depersonalization, reduced responsiveness to surroundings, and detachment from others is common. Poor integration of trauma memories can result in flashbacks that progress to PTSD. 
• Anxiety or arousal responses when recalling the trauma: PTSD sufferers have a higher baseline sympathetic nervous system (SNS) activity than most people. SNS activation, otherwise known as the “fight or flight” response, occurs when a person is first attacked. The stress hormone cortisol floods the system, leading to increases in blood pressure, muscle tenseness, rapid breathing, and reduced perception of pain. The parasympathetic nervous system, or “learning” brain, shuts down almost entirely, along with any non-essential neural circuits. Feelings of anxiety, nervousness, and depression may surface along with stress. While we need our SNS to survive life-threatening situations, these pathways can become too deepened in the mind, causing the brain to have trouble distinguishing a true emergency from a partner’s embrace, a news story about rape, or a nightmare. Many sexual trauma survivors with PTSD experience sexual inhibition and the inability to become aroused with a sexual partner. 
• Intrusive thoughts, followed by cognitive suppression: The trouble with dissociation and extreme anxiety is that these mental conditions interfere with the coding, storage, and retrieval of traumatic memories. Survivors may experience amnesia in the immediate aftermath, only for severely disturbing memories to resurface later on.  A person with PTSD could experience a memory that is simultaneously vivid and vague. Fear structures in the brain linking sensory details of the abuse together can become triggered, causing intense unpleasant emotions to flood the system.
• Avoidant coping such as denial or minimizing: Once the abuse has occurred, many survivors deny that a problem, symptom, feeling, or need exists. They may blame themselves, seek rationalization for what happened, or assure themselves they’re fine. They may come to admit what happened, but deny the consequences and avoid seeking help. Sexual abuse survivors sometimes engage in behavioral strategies designed to reduce or avoid unpleasant thoughts and emotions associated with their traumatic experiences—excessive worrying, abuse of drugs or alcohol, self-harming, or engaging in promiscuous acts. Some survivors retreat in social isolation and depression to avoid any potential hurt.

Symptoms of PTSD Caused by Molestation

Generally, there are three main symptoms related to PTSD, of which survivors may experience one or all:

• Re-experiencing: Some survivors feel like they are reliving childhood trauma all over again through flashbacks, dreams, or intrusive thoughts. Certain people, places, life events, or news stories can serve as triggers, bringing unwanted memories or sensations back to their present thoughts.
• Avoidance: Other survivors intentionally avoid scenarios, events, or activities that may be associated with childhood trauma in some way. They may shrink away from social circles, retreat to drugs and alcohol as a coping mechanism, or lose interest in hobbies that were previously enjoyed.
• Hyperarousal: Childhood trauma survivors with PTSD may feel “on edge” at times. They may be easily startled, have difficulty sleeping, or may be prone to emotional outbursts. The physical “fight or flight” symptoms are also heightened.  

Survivors frequently encounter waves of depression, anger, guilt, shame, and distrust. They may mourn the “death” of the innocent child who existed before the trauma occurred. Their opinions, perspectives, and personalities typically remain forever shaped by what happened to them. Family and friends may notice irritability, anger, or numbness. The ability to maintain steady employment and relationships can be seriously hindered in some cases.

Tips on Seeking Assistance for PTSD Recovery

Avoidance is the most significant factor in prolonging and intensifying trauma-related PTSD. This short-term strategy for resolving distress may seem to confirm that you are in control of your mind, but research shows that 70% of sexual assault survivors experience moderate to severe distress, which is a larger percentage than for any other violent crime. Repressed memories have a way of coming back—sometimes when you least expect it and feel you’ve truly put the past behind you—for instance, when you’re about to get married or have your first child. Major life events commonly serve as emotional triggers. It can be difficult for even the most supportive family members and friends to comprehend.

It is highly recommended that you seek treatment as soon as you can. Early intervention greatly reduces the likelihood of that trauma can impact your quality of life. Therapists may employ a number of different techniques in your treatment, including Cognitive Processing Therapy, Prolonged-Exposure Therapy, and Eye-Movement Desensitization Reprocessing. Through these sessions, you will likely learn how to calm yourself, relieve depression and anxiety, increase awareness of your inner strengths and competencies, process specific memories, reconnect with past hobbies, find meaning in what happened, challenge trauma-based thinking to restore a healthy mental framework, enhance relationships with others, achieve a more stable mood, and regain quality of life.    

Recovering from PTSD from being molested as a child doesn’t mean you will forget the experience entirely or absolve all symptoms for good. Rather, a successful recovery can mean acquiring new skills, attitudes, or paths to forgiveness. It’s letting go of the blame, self-hatred, shame, and guilt that you may experience. Recovery can also come in the form of replacing negative thought patterns and actions with healthier ones for better overall functioning. Hopefully, by the end of your work with a trusted therapist, you will discover a better degree of support, a more positive self-concept, and an inner wellspring of personal strength.  

Recovering Compensation in Civil Court for Child Molestation

One of the most effective ways to obtain compensation for the harm suffered as a result of child molestation is to file a civil lawsuit. Technically, sexual abuse is considered a type of personal injury, though it’s important to find a law firm specializing in these particular types of cases. In many ways, sexual abuse is not a straightforward personal injury claim. It takes a skilled, persistent team of attorneys who understand the subtle nuances of the law to win these cases. 

The harm suffered as a result of sexual violence such as molestation is oftentimes more difficult to measure as compared to other personal injury cases. For example, in a car accident, it’s easy to calculate the total medical bills for physical injuries sustained. Emotional damages are then added based on a percentage of the physical harm experienced. While there can be serious physical injuries associated with sexual abuse, they often pale in comparison to the lifetime of emotional and psychological damage endured by the survivors. Unlike criminal court—which seeks to punish wrongdoers with jail time and other sanctions—civil court focuses on compensating survivors for the harm they have suffered, are currently suffering, and are likely to suffer in the future. Also, there need not be physical signs of trauma to win compensation in a civil lawsuit as most of the damage suffered as a result of sexual abuse is typically psychological. 

In some cases, you can seek financial compensation from the perpetrator and any organization or institution that allowed the molestation to occur. If you were molested by a teacher, the school district can be held liable for failures in hiring, training, supervision, and reporting known or suspected abuse. If you were molested by a coach, the athletic organization can be held liable.  

What if the Molestation Happened Years Ago?

The State of California does impose a time limit for pursuing sexual abuse claims through the courts. The time limit for pursuing civil litigation to obtain a recovery of damages suffered as a result of childhood sexual assault is 22 years from the date the plaintiff attains the age of majority or by age 40. There is a rule of delayed discovery that allows a claim to be filed within five years of the date the plaintiff discovers or reasonably should have discovered that the psychological injury or illness occurring after the age of majority was caused by sexual assault. 

As of January 1, 2017, Senate Bill 813 went into effect in California, ending the 10-year statute of limitations on pursuing criminal charges for rape and child molestation cases. However, if your abuse occurred prior to that and is not associated with new DNA evidence, you have up to 10 years from the age of majority (age 28) to press criminal charges.

An experienced attorney will work with you to discuss the deadlines that may apply to your claim.  

If You Have PTSD From Being Molested as a Child, Contact an Experienced Attorney

The law firm of Lewis & Llewellyn specializes in cases of delayed discovery and childhood sexual abuse trauma. We want you to know it’s never too late to seek help for the abuse you’ve suffered. Our team of skilled investigators, expert witnesses, and compassionate attorneys will work hard for you to help you find a measure of peace. A lack of financial resources should never be a reason why you don’t obtain the help you need. Many rape crisis centers, support groups, and non-profit programs offer free counseling services to help you through the aftermath. 

Whether you are an adult victim or the parent of a victimized child, the aftermath of child molestation may take you through the full gamut of emotions—but you don’t have to go through it alone. An experienced legal representative can act as your advocate, providing counsel and empowering control over the course of the proceedings.

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.

Non-recent sexual abuse, sometimes referred to as “historical sexual abuse,” pertains to incidents that occurred in the past—oftentimes during the victim’s childhood. Many survivors silently carry the burden of what happened for many years before deciding to come forward. When they do decide to come forward, many choose to seek financial redress, as compensation for victims of historical sexual abuse is possible through civil court.

If you are a victim of historical sexual abuse, you may be wondering how you can recover compensation for your pain and suffering; an experienced sexual abuse attorney can help.   

Why Pursue Financial Compensation for Sexual Abuse?

Sexual abuse can lead to a tremendous expense over the lifetime of the survivor. Adults who were abused as children may develop mental health problems, drug or alcohol dependencies, or suffer revictimization. They may have trouble holding a job, parenting, or maintaining healthy interpersonal relationships. Poor overall physical health, debilitating emotional disturbances, disturbing nightmares, and deep depression are common tolls on a person’s productivity and quality of life. Each individual processes what happened in a different way, and the amount of disruption to daily life ranges considerably from person to person.

Research has illuminated the many ways rape and childhood sexual abuse costs victims:

• The average lifetime burden of childhood sexual abuse per individual is $282,734.
• Immediate medical costs associated with victims who seek care averages $2,084.
• Women sexual abuse survivors were three times more likely to drop out of high school as compared to non-abused peers. 
• Sexually abused men are three times more likely to suffer a heart attack than men who were not abused.
• Workers with childhood sexual abuse (CSA) history are 20% more likely to be employed in menial or semi-skilled occupations.
• CSA victims are more than twice as likely to spend their working lives sick or disabled, earning an average of 40% less household income than their peers.

Over one year’s time, the economic impact of child sexual abuse costs the government approximately $9.3 billion in health care, child welfare, special education, violence and crime suicide, and survivor productivity losses, according to Johns Hopkins Bloomberg School of Public Health.

With the number of estimated costs associated with sexual abuse, survivors typically turn to civil court to recover compensation.   

Ways to Seek Compensation for Victims of Historical Sexual Abuse

A civil lawsuit is the most common path to recovering compensation for childhood sexual abuse. As long as a claim is within the statute of limitations, a civil lawsuit can provide for a number of damages such as past and future medical bills, past and future lost wages, lost quality of life, as well as an estimated amount of pain and suffering.  

Another option is the California Crime Victim Compensation Program, which is a state fund that may provide up to $70,000 for permanent disability-related lost wages or up to five years of lost financial support, up to $70,000 for medical care, up to $70,000 for job retraining, up to $10,000 for mental health counseling, and up to $2,000 for relocation costs. However, the application must be filed within three years of the incident or by a minor victim’s 28th birthday. Additional filing time may be granted depending on the case. Victims may need to submit a police report or medical bills to support the claim.

What California Law Says About Seeking Damages for Abuse

Assembly Bill 218 (AB 218) increases the time limit for pursuing litigation to obtain a recovery of damages suffered as a result of childhood sexual assault to 22 years from the date the plaintiff attains the age of majority. It also extends the rule of delayed discovery to within five years of the date the plaintiff discovers or reasonably should have discovered that the psychological injury or illness occurring after the age of majority was caused by sexual assault.

The bill also allows for a window of three years for the revival of past claims that might have expired due to the statute of limitations. Also, in cases where a child becomes a victim of sexual assault as the result of an effort to cover up past assaults, AB 218 allows a court to award recovery of treble damages against the defendant who engaged in the cover-up.

How to Prove Historical Sexual Abuse

Depending on the case, it may be easier to prove historical sexual abuse in civil court and recover a settlement than to prove a defendant guilty in criminal court. In civil court, the case outcome is based on a “preponderance of the evidence,” meaning that the jury must believe your story is “51% or more likely” to be true. This is a much different standard of evidence than criminal courts, where the jury must be convinced “beyond a reasonable doubt” that the events were 99% likely to have occurred. 

Another point to consider is the matter of third-party liability. Civil court allows for an expanded scope of liability. This means that while the individual perpetrator is responsible for their actions, institutions that may have enabled or turned a blind eye to the sexual assault can also be proven responsible. Organizations can be held liable for their failure to conduct background checks; properly train employ; supervise; take corrective action; or report known or suspected child abuse.  

Contact an Experienced Sexual Abuse Attorney

If you are a victim of sexual abuse seeking to recover compensation, an experienced attorney may be able to help. Even if the sexual abuse took place years ago, you may still be able to hold the perpetrator and any enabling parties liable in civil court. A specialized attorney will know exactly where to begin when seeking justice on your behalf.

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.

Title IX of the Education Amendments of 1972 is designed to protect students from harassment and sexual violence—including rape, sexual assault, sexual battery, sexual abuse, and sexual coercion—in programs or activities that receive federal financial assistance. The law states that:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

Despite what the law says, incidents of school sexual assault still occur. This article will discuss what you can do if your child has been victimized and how to explore your child’s legal options.  

The Duty of Schools to Investigate Claims of Sexual Assault

When an institution knows or reasonably should know of possible sex-based harassment, it must take immediate and appropriate steps to investigate or otherwise determine what occurred, according to Title IX. The same is true under California’s Child Abuse and Neglect Reporting Act (CANRA) which requires designated mandated reporters to report suspected or known abuse, neglect, or exploitation of a child under age 18. If an investigation reveals that the harassment created a hostile environment, the institution must take prompt and effective steps reasonably calculated to end the harassment, eliminate the hostile environment, prevent the harassment from recurring, and, as appropriate, remedy its effects. Unfortunately, institutions don’t always follow these guidelines. 

Most cases of school sexual assault are never reported by students due to fear and shame. And, if they are reported, they are often mishandled by the school districts. To combat this, the U.S. Department of Education’s Office for Civil Rights (OCR) publishes data from all school districts on reported sexual harassment incidents every two years. Often, many of these schools have “zero” reported incidents—which isn’t necessarily a good sign. With this in mind, the OCR also conducts proactive investigations, called compliance reviews, to examine potential violations based on sources of information other than complaints. As of January 31, 2020, there were 71 pending cases under investigation at elementary-secondary and post-secondary schools in California. 

How to Handle Sexual Assault by a School Official

File a report with local law enforcement and request to press criminal charges.

When a teacher, coach, guidance counselor, or other authority figure is the sex offender in your child’s incident of sexual assault, you can press criminal charges, as sexual contact with an adult and a person under 18 years of age is against the law. Children can’t legally consent to sexual acts. Sexual misconduct by a teacher involving a student impedes the “duty of care” for teachers to provide education for their students, while also protecting them from harm while under their supervision.

A parent can file a formal report with local law enforcement and ask to press criminal charges. Then, the department will likely conduct a preliminary investigation. Corroborative evidence can take many forms, including medical exam documentation, witness testimony, and victim interviews. Ideally, you will work with expert investigators from CALICO (the Child Abuse, Listening, Interviewing, and Coordination center) or CIC (the Children’s Interview Center). These groups can also help you coordinate with a local, specially trained Sexual Assault Nurse Examiner to collect medical documentation if necessary as well.

Credible evidence can then be handed over to the state District Attorney for prosecution. If the State of California finds the defendant guilty, he or she can be sentenced to prison, probation, payment of a state fine, and put on the state Sex Offender Registry.

Call a civil attorney specializing in childhood sexual abuse.

In addition to pressing criminal charges, you may file a civil lawsuit that could potentially result in financial compensation to pay for your child’s related medical expenses, therapy sessions, and long-term wellbeing. 

The expanded scope of liability in civil court is particularly important in cases of school sexual assault. Not only can you sue the individual perpetrator, but you can also sue the school district. Civil lawsuits can be an empowering path to subpoenaing documents, holding school districts liable, and enacting structural changes in the system. When a school is held liable in civil court and forced to pay, they will likely want to make sure they are smarter about who they hire, how they supervise, and what actions they take to prevent child abuse in the future. Judges also exercise a limited amount of leverage in adding structural reforms onto settlements. Lawsuits have been instrumental in helping stop the practice of “passing the trash,” where known sex offenders are allowed to move freely between schools.

California is very clear about the responsibility of school personnel in the prevention of child abuse. CANRA, also referred to as the mandatory reporter law, requires educators to report any instances of known or suspected child abuse to law enforcement for further investigation. Failure to do so can result in fines and even jail time. School districts and mandatory reporters can also be included in civil lawsuits when they fail to exercise proper vigilance to prevent sexual assaults by school personnel.

Handling the Sexual Assault of a College Student

Many college students are able to file their own lawsuits against sexual assault and they can take similar actions to those of a parent dealing with a victim who’s a minor. The only difference may be a particular college or university’s liability under Title IX. 

Title IX requires schools to work with a Title IX coordinator to conduct a prompt investigation into any reports of sexual assault; provide survivors with the option to notify law enforcement; take prompt and appropriate policy steps to protect the victim and prevent future abuse; and take corrective action if the perpetrator was a member of the faculty or staff. Schools can be deemed negligent when it can be proven they knew or should have known that abuse was taking place on campus. Schools can also be held liable for incidents taking place off-campus in fraternities and sororities. A number of sexual assault-related laws have passed in recent years, providing college students with more rights and making it easier to pursue a civil claim in court.

What to Do About Child-on-Child Sexual Abuse

Sexual assault or abuse between minors is referred to as Child-On-Child Sexual Abuse (COCSA) and often occurs at school. Nearly one-third of child sex abuse predators are other minors. While it is normal for elementary-aged children to express some curiosity in sexual behaviors, figures of authority should intervene and reinforce age-appropriate conduct. As a child ages, sexual touching can be considered a serious crime. As mentioned earlier, children under age 18 can’t legally consent to sexual activity in the State of California. This holds true, not only for student-on-minor sexual incidents, but for student-on-student sexual encounters as well. Whether your teenager is in a sexual relationship with another student is inconsequential in the eyes of the law, although the penalties stiffen when the age gap is greater than two years.

Here’s what you can do if your child has been a victim of COCSA:

Support your child.

If your child was sexually assaulted by one of their peers, responding with love and support is most important, while setting clear expectations about what is or isn’t acceptable and safe behavior. Develop a family safety plan to ensure your child has proper surveillance and will not be in a situation where assault occurs again. Let the other parents know what has happened, sticking to the facts and letting them know you’re committed to helping stop the cycle of abuse. Both victim and perpetrator should seek mental health counseling. Most offices accept insurance, including Medicaid. If the school was a venue for abuse, speak with an administrator to ensure you have their commitment.

Pursue the matter in criminal or juvenile court.

California will not initiate criminal proceedings against children under 14 years of age. Teens ages 14-17 can be charged with a misdemeanor for “unlawful sexual intercourse,” “distributing child pornography” (sexting), or “lewd and lascivious acts with a child,” and subject to juvenile court treatment. Minors can be remanded to a juvenile facility, placed in foster care, placed on probation, ordered to serve home detention, or mandated to perform community service. Felony charges can be imposed for minors over the age of 14 who abuse younger children. If charged as an adult, fines can reach $10,000 and the perpetrator may be registered as a sex offender.

File a lawsuit against the minor’s custodial guardians in civil court.

Minors can be represented by their legal guardians in court. A civil lawsuit can force a perpetrator to admit guilt and have their guardians pay restitution to your child. It can be difficult to secure a substantial sum from the perpetrator’s family, but third party liability could be an avenue for reaching a larger settlement, depending on the circumstances of your case. For instance, if harassment or abuse took place at school or an after-school activity, teachers and administrators can be held liable for failing to supervise or failing to report.

Help for Victims of School Sexual Assault

Parents entrust school officials with the safety of their children. When this trust is violated, the ramifications can have devastating effects for the abused that last a lifetime. 

No individual or institution is too big to sue in court. Filing a civil suit is not just about the money. It’s a necessary step in holding third parties accountable for turning a blind eye to safety hazards in their midst. It’s about forcing a change in school policies to prevent sexual misconduct by school employees in the future.

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.

For various reasons, survivors of sexual abuse don’t always come forward immediately after the abuse has ended. They may decide to suppress memories of sexual abuse or they may decide to cope in other ways. Everyone’s path is different, but for some, filing a lawsuit in civil court can be a step toward recovery.   

If you are considering filing a civil lawsuit, you may be wondering if reporting historical sexual abuse to police is a requirement; it isn’t. Because, regardless of why you chose not to file a police report when the abuse took place, you still have the right to seek justice. 

This article will discuss the benefits of reporting historical sexual abuse to police—although it isn’t required—and an alternative if you decide not to file a police report.   

The Benefits of Reporting Historical Sexual Abuse Before Filing a Lawsuit

While not required, a police report for a claim of non-recent sexual abuse can be beneficial because:

• A report is a factual piece of evidence. Whether you reported the crime right away or waited a few years, a police report is considered a formal document that can be used in court as a crucial piece of evidence. In addition, answering questions and talking out your experience may help you recover repressed memories of sexual abuse that will likely be helpful should you decide to testify in court.
• Filing a police report can help other survivors. Many survivors come forward later on in life. Oftentimes, the more police reports that exist against a particular perpetrator, the more valid the claim is viewed by law enforcement and the courts.
• You may be able to revive an expired claim to press criminal charges. In California, Assembly Bill 218 increases the time limit for pursuing litigation to obtain a recovery of damages suffered as a result of childhood sexual assault. The bill also allows for a window of three years for the revival of past claims that might have expired due to the statute of limitations.

If you don’t wish to press criminal charges, civil court offers an alternative for you to seek justice.  

An Alternative to Reporting Historical Sexual Abuse to Police

If you’ve filed a police report, it will be up to investigators to determine if there is sufficient evidence to “prove beyond a reasonable doubt” that the alleged crime was committed. “Beyond a reasonable doubt” is the highest standard of evidence—meaning, a judge and jury must be at least 99% sure that events took place the way the plaintiff says they did. If you don’t feel confident that there will be significant evidence to meant this standard, civil court may be an alternative solution. The burden of proof is lower in civil court—where cases are decided “based on a preponderance of the evidence.” This means the jury must believe your story is 51% or more likely to be true. 

By filing a civil claim, you may be able to recover compensation for the harm suffered as a result of the abuse. Oftentimes, the damage suffered as a result of sexual assault is psychological and doesn’t immediately emerge. One common timeframe for symptom emergence occurs when a survivor of sexual assault reaches puberty, causing body image distortions, avoidance from peers, persistent victimization, or a stymied approach to relationship formation. Other common triggers include life events such as marriage, death, divorce, or the birth of a child. Emotions such as fear, shame, humiliation, self-blame, or guilt may also emerge, leading to depression, anxiety, or PTSD.

It’s important to note that there need not be physical signs of trauma to recover compensation in a civil lawsuit.  

Contact an Experienced Attorney About Reporting Historical Sexual Abuse to Police

Whether you are an adult victim or the parent of a victimized child, it’s never too late to come forward about sexual abuse. An experienced legal representative can act as your advocate, providing counsel and empowering control over the course of the proceedings.  

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.

There are many ways survivors of sexual abuse may choose to cope with what’s happened to them. Many choose to place the abuse behind them, move away, and start fresh. But what if they’ve moved away and want to seek justice for the sexual abuse they endured in the past? Do they file a lawsuit in the state where they currently live? Or, are they required to return to the state where the abuse occurred to seek civil remedy?

Like most states, in California, sexual abuse lawsuits are governed by venue rules. If you would like to file a civil lawsuit, it’s best to consult with a team of legal experts to explore the best options for your case. 

What Are California’s Venue Rules for Sexual Abuse Lawsuits?

In legal terms, the “venue” refers to the county or judicial district in which a plaintiff’s lawsuit is filed. Venue rules, found in the California Code of Civil Procedures, have been developed by state courts to protect the defendant from having the case filed in an inconvenient location and to protect both sides from unfair bias.

In a sexual abuse case, the correct judicial district is typically the one in which:

• the abuse (or majority of abuse) took place
• the defendant resides or conducts business
• the third party entity involved is headquartered or established

More than one judicial district can be deemed proper. “Forum shopping” is the term used by lawyers to describe the process of choosing where to file a plaintiff’s case when there are multiple venues possible. To avoid objections, most attorneys will go with the venue closest to the defendant’s home base.

What Are California’s Jurisdiction Rules?

There are also limits to the legal authority of each court to decide a case—which is referred to as “jurisdiction.” Before filing a sexual abuse lawsuit, your team will need to consider which court has jurisdiction over:

• The person you want to sue: Generally speaking, all California superior courts hold jurisdiction over a person living or conducting business in California. One exception might be if the sexual assault occurs on a military base, where a military court may hold reigning jurisdiction. Another exception may be granted for sexual abuse on sovereign land, which may be presided over by a tribal court.
• The legal issue for which you are suing: California superior courts are general jurisdiction courts that can weigh in on most issues, including sexual assault. By contrast, a small claim may be sent to limited jurisdiction courts, particularly if the damages are worth $25,000 or less; or a bankruptcy case will be sent to federal bankruptcy court, which has exclusive jurisdiction. Divorce is another type of exclusive jurisdiction court, since there are typically many of these cases.

How Does Choice of Venue Affect a Sexual Abuse Case?

Venue can significantly impact the value of a case in the following ways:

• Juror selection: If you have a trial by jury, the venue determines the jurors who will ultimately decide the case. Ideally, you want your case to be heard in front of a group of your peers—people who will understand what you went through and the effects that you may still endure as a result of the abuse.
• Convenience: Legal costs typically increase when parties need to travel significantly to handle litigation matters. Courts vary in their technology, with some capable of e-filing and others using a more traditional paper records system. Ideally, you’ll want to keep costs as low as possible, so these added expenses don’t cut into your settlement or award.

In addition to exploring the best venue, your legal team will also help you understand the differences between federal and state lawsuits.   

Should you file a federal or state lawsuit?

Many sexual assault cases can be heard in state court when they involve events or people within the state boundaries. However, a federal court may claim jurisdiction over cases that arise from a question of federal law like civil rights (which may apply to sexual assault in a school or sexual assault by a police officer), or sexual discrimination (which may apply to sexual assault in the workplace). Federal district courts may also hear the case if you are suing someone from a different state or country and you are asking for more than $75,000 in damages.  

Where should you file your sexual abuse lawsuit?

In choosing the unique venue to file a lawsuit, a plaintiff who is “forum shopping” may consider:

• “Which courthouse is closer to my home or work?” If possible, you may opt for a state court if the nearest federal court is hours away.
• “Which court has a longer statute of limitations?” If you have missed a deadline under state law and a federal question applies, you may choose to file suit in federal district court to take advantage of a federal law with longer statute of limitations.
• “Which judge will preside over my case?” Local state court judges sometimes uphold a judicial philosophy that makes them more likely to sympathize with plaintiffs.
• “What jury will be selected?” Jury selection boundaries may differ from state to federal court. Federal courts often use wider geographic areas in their selection process.
• “What does my attorney say?” Legal professionals can consult with you, free of charge, on a broad range of particulars regarding federal and state courts.

What if you file in the wrong court?

Filing a case in the wrong court is a misstep that could cause significant delays if the case is dismissed for “lack of jurisdiction.” You may be able to re-file your case—if the statute of limitations hasn’t run out before you are able. Sometimes your case can simply be remanded to a different court, but other times, a defendant may file a motion to get the case permanently dismissed. Taking a thoughtful approach to the case venue is always preferable.

Can you change the venue midway through trial?

Changes of venue are extremely rare. However, sometimes media coverage makes it impossible to exclude the possibility of juror bias. Legal teams can conduct extensive polling and produce published articles to demonstrate clear and compelling conflicts of interest and local bias. In some small towns, juror ties to the defendant can be proved, so it is possible to move the trial if absolutely necessary. 

Lewis & Llewellyn Handles California Sexual Abuse Lawsuits

Deciding to pursue justice against sexual abuse is a major step in the right direction. Don’t let the complexities of state venue rules discourage you; leave those details to the legal professionals. 

The attorneys at Lewis & Llewellyn, a boutique firm in San Francisco, embrace the challenge of taking on a well-heeled defendant as they have deep experience representing survivors of sexual violence within the state of California and across the country. Their successful track record gives them continued confidence to take on cases against perpetrators of sexual abuse as well as large entities that played a role in the abuse. The National Law Journal named Lewis & Llewellyn among the nation’s “elite boutiques” for cases of sexual violence.       

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.

It is possible to sue a parent for sexual abuse. It doesn’t matter whether the parent is biological, adopted, or foster. Sexual relations between adults and minors under age 18 are expressly forbidden by California state law. The state also has specific laws against incestual relations between parent and child.  

The abuse of trust, coupled with the emotional vulnerability of a child, sometimes makes the abuse difficult to comprehend until many years later. If you are a survivor of childhood sexual predation by a parent, you may be entitled to a civil claim for financial compensation and financial assistance through the California Victims of Crime Board.

In addition to suing a parent, you may have a case against a foster care agency, child protective services, mandated reporters at your school, and others who turned a blind eye to known or suspected abuse rather than taking steps to protect you.

Can a Child Sue a Parent for Sexual Abuse?

Yes, a survivor of childhood sexual abuse can sue a parent for sexual and/or physical abuse, which includes:

• enticing a minor to take part in sexual activities, whether the child is aware or not
• non-contact activity like showing a child pornography or asking to see private parts
• sexual touching
• deliberately exposing oneself to a child
• photographing a child in sexual poses
• sexual intercourse
• encouraging a child to watch sex acts or behave in sexually inappropriate ways
• making overtly sexual comments or inappropriate remarks about the child’s body
• grooming the child for prostitution or commercial gain through sexual exploitation

Many survivors experience some or all of these events but remain silent for various reasons. 

Child Sex Abuse Survivors Often Remain Silent Until Adulthood

Children often remain silent about their abuse for a myriad of reasons, including:

Unawareness: Particularly sheltered children may not recognize the “games” or inappropriate “intimacy” as abuse until they interact more with the world at large and come to define their experience with age and maturity.

Dependence: Even if they do realize what’s happening is wrong, they are often trapped in their situation until they have the means to leave the home.

Vulnerability: Parents exert much control over the life of a child, whether it’s physical strength, intellect, economic power over resources, expectations of basic survival needs, or the influence over social opportunities.

Fear: Children may fear disappointing the non-offending parent, fear no one will believe them, or fear facing severe repercussions from the abuser if a report is made. They may also fear “breaking up the family” or the uncertainty of who will care for them.

Denial: Victims may deny or minimize the effects of abuse until they are triggered or encounter severe psychological and emotional issues that prompt them, as adults, to look back and consider taking action.

When Is It Okay to Sue a Parent for Sexual Abuse in California?

From a procedural perspective, it’s often easier to pursue a childhood sexual abuse lawsuit once the child has reached adulthood. Since the passage of Assembly Bill 218 (AB 218), victims of childhood sexual assault can bring a claim to civil court, even if the statute of limitations had previously expired. Prior to the passage of AB 218, children had until age 28 to sue for child sexual abuse. Now, they have until age 40 to file a lawsuit. Exceptions may be granted in cases of delayed discovery, allowing up to five years from the realization of harm for a suit to be filed.     

It is not absolutely necessary to wait until adulthood to sue. It is possible for a child to sue before turning 18 with the help of an appointed litigation guardian. A litigation guardian can be an existing guardian, such as a grandparent, aunt, uncle, sibling over 18, or non-offending parent. A witness to the abuse, such as a child’s teacher or a neighbor the child has confided in, can also be deemed a legal guardian. 

It is also important to note that as of January 1, 2017, there is no filing deadline to press criminal charges against child predators and rapists. Criminal charges may be pursued in addition to, or in lieu of, civil claims to compensation.  

What Do You Need to Prove a Parent’s Sexual Abuse?

In sexual abuse cases filed against third party entities, victims must show that the defendant knew or should have known about the abuse. When suing a parent, you won’t need to prove the abuser was on notice—that much will be obvious. Since most cases of child abuse happen behind closed doors with no other witnesses, the testimony of a child or adult survivor and confirmation of circumstantial evidence is often used in court.

Illustrating damages becomes an important facet in a child abuse case. Your legal team will likely make a case for the trauma suffered as a result of the abuse. Oftentimes, those who suffer from Rape Trauma Syndrome experience the acute phase and long-term reorganization that occurs as a result of forcible rape or attempted forcible rape. Physical manifestations of child sexual abuse may include soreness, bruising, muscle tension, headaches, fatigue, sleep pattern disturbances, and gastrointestinal illnesses. Emotional reactions can range from anxiety, fear, and anger to self-blame, depression, and humiliation. Phobias like the fear of indoors or outdoors, fear of being alone or in crowds, the fear of being followed, and sexual fears may emerge, requiring treatment from a professional counselor. Experts are often retained to educate judge and jury on the clinical presentations of childhood trauma.

Courtroom strategy typically involves:

• emphasis on the brutal nature of the abuse to set the stage for the acceptance of psychological damages
• testimony from a treating physician, counselor, or therapist to lend credence to the nature of physical, mental, and emotional injuries, as well as advocate for treatment
• behavioral witness testimony from family, friends, coworkers, neighbors, or other trusted individuals who can discuss behavioral changes, clues of abuse, or substantiation of essential facts within the case
• education from a forensic-psychiatrist or rape trauma expert who can discuss the effects of trauma on the day-to-day life of a survivor and advocate for long-term care
• objective information from a neurologist who can discuss and define mental disability
• presentation of the plaintiff as the final witness

Taking the stand is not always necessary to prove familial sexual abuse, but it can be compelling to judges and juries—and, therefore, is sometimes recommended. Children whose testimony can be confusing or conflicting may be able to submit their record through video interviews, formal depositions, or other means.   

How Much Money Can You Get From Suing a Parent From Sexual Abuse?

Since such a suit would be focused on intentional, willful misconduct, punitive damages would very much be on the table. This subjective sum of money is added on top of whatever medical expenses are related to the abuse and the subjective award for pain and suffering. It is not uncommon for settlements and jury awards to reach hundreds of thousands of dollars.

Of course, the parents would need assets for such a suit to make sense. Property liens and wage garnishments may be possible in some cases. Child survivors may go after business assets or mandate the liquidation of other items such as boats, expensive sports cars, or art collections in order to satisfy the judgment. In the past, homeowners insurance companies have paid on settlements related to incest, though this is becoming increasingly more difficult to do.

For many adult survivors, it’s not about the money, but rather, about breaking the silence of abuse. They likely want to face their abusers and force them to accept responsibility for the damage done. Many survivors empower themselves and other survivors to acknowledge what happened and stay resilient.

For many child survivors, a civil lawsuit can remove predators from a position where they can continue to do harm. A civil lawsuit can also be a means of securing financial compensation to provide for medical services that may be needed in the future, as well as cover to loss of income or productivity.

San Francisco Lawyers Can Help Survivors of Sexual Abuse

If you are considering suing a parent or other family member for sexual abuse, it costs nothing to meet with an experienced member of our team to discuss your case. After your initial consultation, we’ll explore your claim and lay out your options for pursuing justice. For more than a decade, we’ve helped sex abuse victims recover millions of dollars for their suffering to get on the fast-track to recovery.

If we’re not a good fit for your particular case, we’ll help you find someone who can adequately represent you. We can help you access local counseling, support groups, therapy, and advocacy organizations that support your healing.

 
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.

No student should have to attend school each day with the fear of sexual assault overshadowing their educational experience. Federal and state law requires instructive institutions to maintain environments that are free from sexual discrimination, vigilant in identifying signs of abuse, and ready to respond in the event of sexual assault. 

If you fear that your school is unsafe from incidents of sexual assault due to inadequate policies, negligent enforcement, complaint processes that go nowhere, and a pervasive culture of permissiveness, you may be able to file a lawsuit to hold that institution liable.

California Students Can Sue Universities for Pre-Crime

According to a landmark ruling by the U.S. Court of Appeals for the Ninth Circuit, California students can sue their universities for pre-crime sexual assault. In January 2020, the Ninth Circuit heard an appeal by three former University of California, Berkeley (UC Berkeley) students who claimed the university violated Title IX by maintaining “a general policy of deliberate indifference to reports of sexual misconduct,” and thereby creating “a heightened risk” of sexual violence for their students.

Federal Law Regarding Sexual Harassment 

California colleges are expected to create and enforce policies according to Title IX of the Education Amendments Act of 1972, a federal law which states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” 

The January 30, 2020 ruling opened the door to pre-assault claims, meaning that institutions can be held liable for Title IX policies and procedures even before a sexual assault occurs. Based on the ruling, to state a Title IX claim arising from student-on-student or faculty-on-student harassment or assault, the litigating plaintiff must assert that:

• The school exercised substantial control over the perpetrator and the context for assault. 
• The harassment was so severe it deprived the plaintiff of educational opportunities. 
• A school official with authority to address the complaint had actual knowledge of it. 
• The school acted unreasonably, with deliberate indifference to the harassment.

While the panel affirmed the lower court’s dismissal of the students’ individual claims against the institution, the Ninth Court vacated the dismissal of the plaintiffs’ claim regarding pre-assault liability and remanded the issue for further proceedings.

How UC Berkeley Violated Title IX

The three-panel judge ruling referenced a 2014 California State Auditor report of UC Berkeley’s Title IX processes, which found the school didn’t provide updates on pending investigations, resolve complaints in a timely manner, or provide staff sexual misconduct prevention training from 2009 to 2013. 

Berkeley’s early resolution process coerced students into an informal process that lacked thorough investigation so the school could avoid having to report the crimes on their campuses, as required by the Clery Act of 1990. Only two of the 500 reported assaults were formally handled outside this early resolution process, according to the former students’ claim. The U.S. Education Department’s Office for Civil Rights ordered UC Berkeley to revise its Title IX policies following the 2014 investigation, but the enactment of new policies, procedures, and services was significantly delayed. These inadequacies led cases to be mishandled and compromised student safety, according to the Ninth Circuit’s opinion.

What the Pre-Assault Liability Means for Schools and Students

Proving a school acted unreasonably, with deliberate indifference to harassment is not always easy. In the past, the courts have found some delays and inactions to be reasonable. However, now that there’s a theory of “before” or “pre-assault” liability, there will be increased scrutiny on a college’s response to sexual harassment or violence, particularly when the state system has conducted analysis and provided guidance.

According to the Ninth Court: “It may be easier to establish a causal link between a school’s policy of deliberate indifference and the plaintiff’s harassment when the heightened risk of harassment exists in a specific program, but we will not foreclose the possibility that a plaintiff could adequately allege causation even when a school’s policy of deliberate indifference extends to sexual misconduct occurring across campus.​”

Title IX does not require a school to “purge its campus of sexual misconduct to avoid liability,” nor does it make a university responsible for “guaranteeing the good behavior of its students.” However, colleges would be wise to take measures to ensure that Title IX complaints are taken seriously, with stronger communication protocols, due process, and fair treatment of complainants.  

Laws Against Sexual Assault on College Campuses 

There are laws in place designed to protect students from sexual assault on college campuses.  

• California Senate Bill 967 passed in 2015, making it necessary for partners to obtain and maintain affirmative consent during a sexual encounter. This “yes means yes” law requires both parties to give their authentic, uncoerced, voluntary, and ongoing affirmative consent every step of the way during a sexual encounter. If one of the parties is intoxicated, passed out, or otherwise silent, consent can’t be automatically implied. Consent may also be revoked at any time. The law also requires schools to adopt a “preponderance of evidence” standard—meaning someone has committed sexual assault if there’s a greater than 50% likelihood of guilt. 
• One year later, Assembly Bill 2654 mandated schools to provide a written policy on sexual harassment and information regarding the complaint process; this information must be easily accessible on the school’s website. Colleges must also provide resources and remedies to handle on and off-campus incidents.
• In 2017, the amount of funding to enforce Title IX in UC schools increased from the previous limit of $67,000 set in 2013 to $1.6 million. Assembly Bill 1896 passed in 2018, providing a right to confidentiality when speaking with college counselors.

If a school has failed to act on claims of sexual assault on campus, you may be able to file a civil lawsuit. 

What to Do if You Have Fears of Sexual Assault on Campus

You have a fundamental right to feel safe on campus. Here’s what you can do about it:

• If you have been physically assaulted, contact emergency authorities and seek immediate medical attention. 
• If you are being harassed based on your sex, gender, or sexual orientation, contact your school’s Title IX Coordinator to file a complaint. Keep copies and detailed notes of all correspondence, including dates, times, and names. We recommend keeping a dedicated folder and calendar pertaining to your Title IX proceedings. 
• If you feel your school has failed to adequately investigate your claim or protect other students from similar harassment, you may also file a complaint with the U.S. Department of Education’s Office for Civil Rights, which is the federal agency tasked with Title IX enforcement.

You are not required to speak with local law enforcement, but you are certainly able to file a report if you have been physically assaulted in some manner. If their investigation uncovers significant evidence of wrongdoing, the perpetrator could be arrested, tried by the state district attorney, and given a punitive criminal sentence.  

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.

Survivors of sexual assault can provide a valuable first-person account of the events that happened to them. However, sexual assault victim testimony can be a traumatizing ordeal when having to describe what transpired, in detail, before a courtroom of strangers and the perpetrator(s). When considering seeking justice, many victims may wonder if they will have to endure this type of testimony, leaving many to ask: Is it really necessary that I testify in pursuit of justice? In some cases, no.

California Sexual Assault Convictions Without Testimony 

Take, for instance, the 2017 trial of Jacob Paul Skorniak. The 51-year-old Colorado resident was accused of kidnapping and assaulting an intoxicated 21-year-old German exchange student in Pacific Beach during a New Year’s celebration. He took the stand in his defense in a San Diego Superior Court, arguing that the sexual encounter was consensual. A week before the trial, the young woman, who had initially cooperated, now decided she couldn’t testify. She decided “she had moved on and wanted to put this behind her.”

The case had plenty of circumstantial evidence to support her claim—particularly graphic video of the crime recorded by the defendant himself that showed the victim was unconscious during part of the attack and visibly afraid at other times. Her father testified that she had called him during the attack, during which he could hear her pleading with the attacker.

After half a day of deliberation, Skorniak was convicted and was sentenced, facing a maximum of 81 years to life in prison. 

In 2015, a cold case was prosecuted against Kenneth Tenner who was accused of assaulting a 79-year-old woman in her North Park Apartment in 2003. Though the victim died of natural causes in 2007 and could not testify on her own behalf, Tenner’s DNA was linked to the case after he entered the law enforcement database for domestic violence. In addition to the DNA evidence, a neighbor testified seeing the partially-clothed victim holding a letter opener outside her apartment and screaming of being assaulted the evening of the attack. The court allowed this exception to rules against hearsay evidence and ultimately convicted Tenner, sentencing him to 14 years in prison.

Knowing Your Rights as a Victim of Sexual Assault 

California’s Marsy’s Law, also known as the Victims’ Bill of Rights Act of 2008 provides sexual assault survivors with the following rights:

• To be treated with fairness and respect for privacy and dignity, free from intimidation, harassment, and abuse throughout the criminal process.
• To be reasonably protected from the defendant and persons acting on his/her behalf.
• To have personal and familial safety considered in bail and release conditions.
• To prevent disclosure of confidential information or records to the defendant.
• To refuse an interview, deposition, or discovery request by the defendant.
• To share concerns about release and sentencing with a probation official.
• To restitution for any monetary losses suffered as a result of the crime. 
• To the prompt return of property when no longer needed as evidence. 
• To a speedy trial and prompt, final conclusion of the case.

Upon request, victims are entitled to: 

• Reasonable notice of the defendant’s arrest, extradition, or pretrial disposition. 
• Reasonable notice of all public proceedings where the defendant will be present. 
• Be heard at any proceeding involving a release decision, plea, or sentencing. 
• Receive the pre-sentence report when made available to the defendant. 
• Be informed of a conviction, sentence, incarceration, disposition, release, or escape.

As a victim of sexual assault, it is your legal right to agree to testify or not to testify. Though, you may be wondering if there are any potential consequences for deciding not to testify and if your testimony is necessary to win your case. 

Cases That May Benefit From Sexual Assault Victim Testimony  

While victims of sexual assault aren’t required to testify, their account of what happened in the following types of cases may aid in the investigation.

Date Rape: Date rape can seem like a case of “he said, she said,” with very few outside witnesses available. However, as TIME points out, a case that is properly investigated almost always boils down to so much more. Today, most jurisdictions don’t require corroboration in sexual assault cases. California follows the “affirmative consent” standard, meaning that you don’t have to prove you said “no” or pushed the perpetrator away; rather, the onus is on them to prove the accused obtained and maintained an affirmative “yes” to engage in sex acts. Even though corroboration is not required in these cases, it is valuable.  

Cases of Non-Recent Sexual Abuse: What if you want to come forward now for abuse that occurred many years ago? For these claims of non-recent sexual abuse, corroborating witness testimony is incredibly powerful. Even in the absence of confessions, physical evidence, or eyewitness accounts, one study found perpetrators were twice as likely to be charged in cases that included corroboration of details from other individuals. Often, medical expert testimony is added to these trials to confirm the existence of psychological symptoms, sexual deviance, physical injury, or the development of PTSD.

The necessity of victim testimony also depends upon which type of court you’re in.

The Standards of Evidence: Civil Court vs. Criminal Court 

The standards of evidence are comparatively lower in civil court than in criminal court. You need only prove that your story is 51% or more “likely to be true,” based on a preponderance of evidence. In criminal court, you must prove “beyond a reasonable doubt,” which is another way of saying the judge and jury must feel your story is 99% likely to have happened as you stated it.

Since the standard of evidence is higher in criminal court, victim testimony is often needed to corroborate the events. Failure to testify could lead the District Attorney to consider you an “uncooperative witness” and drop the case. Defendants often argue that the use of pre-recorded testimony infringes upon their right to “cross-examine the witness.” It’s important to note that even if your criminal case is still pending or has been dropped, you may still pursue financial compensation in civil court.

Alternatives to Sexual Assault Victim Testimony

The reason you would consider testifying is to provide powerful evidence related to your claim. However, there are many other types of evidence considered in sexual assault cases. Most successful cases have at least two forms of evidence, which may include:

• Victim disclosure 
• Corroborating witnesses 
• Offender confession 
• Behavioral Evidence 
• Eyewitness account 
• Physical evidence 
• Police report or 9-1-1 call 
• Medical evidence 
• Psychological evidence 

There are also situations where victim testimony is not necessary to pursue charges or damages, such as when:

• The abuser willingly admits the event took place.
• Cooperative bystander witnesses are available.
• Other victims have agreed to testify.
• You testified at a previous court hearing or answered questions on record.
• You are a minor under age 18 who may be traumatized by the re-telling of abuse.
• The law considers you to be an elder or an individual who is mentally impaired.

Calm, focused live court testimony can be the most compelling, but previously recorded testimony from closed-door hearings can also be relied upon. Many victims feel more comfortable telling their stories and answering direct questions in front of attorneys and judges when the abusers are not physically present. 

If you have concerns about facing your assailant in court, discuss the matter openly with your attorney and a workaround can be sought.  

Contact a Sexual Assault Attorney About Your Case

If you’re on the fence about coming forward because you fear you may have to testify, the attorneys at Lewis & Llewellyn, a boutique law firm in San Fransisco, can help. We specialize in cases of sexual assault and abuse and have the necessary resources to support you in your fight for justice. We know how important it is to explore all options when protecting our clients.   

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.