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For many survivors of sexual abuse, it can take years to summon the courage to come forward against their abusers, let alone take steps to bring a civil case against them in court. In that regard, time limits for bringing legal action against these types of incidents seem cruel. The statute of limitations is a deadline for pressing criminal charges or filing a civil proceeding seeking compensation. But when you’re the victim, the statute of limitations can be a hindrance to seeking compensation.

In recent years, California has been among the most progressive states in loosening the laws governing the statute of limitations on serious crimes, particularly rape. And while the current statutes are still complex and may be confusing, in this article, we’ll do our best to help you understand it all.

What Is Considered Statutory Rape in California?

Rape is defined as unlawful sexual intercourse, regardless of the victim’s age. Statutory rape, as defined by Penal Code 261.5, occurs when any person engages in unlawful sexual intercourse with a person under the age of 18 who was not their spouse at the time of the intercourse. Statutory rape is a crime regardless of whether the sex was consensual or allowed by the minor. The crime is also referred to as “unlawful sex with a minor” or “unlawful sexual intercourse.”

By California law, the bigger the age gap, the stiffer the penalty. For example, an adult who engages in an act of unlawful sexual intercourse with a minor less than two years younger than them is liable for a civil penalty of up $2,000. But an adult over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is subject to civil fines up to $25,000 and possibly felony statutory rape charges.

Oftentimes, statutory rape is thought of as an incident occurring between an adult perpetrator and a young child. However, the law also applies to high school-age couples, for example, where one person has reached the age of majority and the other has not, as well as couples who are both minors. California law does not give minors the legal authority to consent to sex. Two minors involved in sexual activity are guilty of a misdemeanor offense under PC 261.5, which is typically handled by juvenile courts.

Statutory Rape and Statute of Limitations in California

Statute of limitations laws have been part of the U.S. legal system since the nation’s founding. As the LA Times puts it: “They seek to balance public safety and victims’ rights against the rights of the accused, the latter of which might be compromised over time as evidence is lost and memories fade.”  

Criminal and civil proceedings are treated differently by law and different timelines apply. But in either case, statute of limitations deadlines are put into place to ensure a case goes to trial with the best evidence possible. If you’re a survivor of statutory rape, statute of limitations laws may not apply to your situation. California has vowed to prosecute all rapists, no matter how long ago the crimes occurred. Before September 2016, the statute of limitations in California for rape and sex crimes was 10 years. Thankfully, things have changed.

When Can I File a Civil Proceeding for Statutory Rape in CA?

One of the goals of civil litigation is to compensate individual victims for their financial and emotional losses. With ever-changing state legislation, your deadline for filing a civil lawsuit depends upon when the abuse occurred. According to Section 340 of the Civil Code, “In an action for recovery of damages suffered as a result of childhood sexual abuse, the time for commencement of the action shall be within eight years of the date the Plaintiff attains the age of majority [age 18] or within three years of the date the Plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse, whichever period expires later.”

When Can I File Criminal Charges for Statutory Rape in CA?

As of January 2017, SB 813 went into effect in California, ending the 10-year statute of limitations on pursuing criminal charges for rape and child molestation cases. The state is in league with 16 others that have abolished the deadline without preconditions. Pressing criminal charges aims to put guilty offenders behind bars for crimes committed “against the state.” Rape survivors can both file a civil proceeding and press criminal charges in most cases.

• PC 261.5(b) allows one year to press misdemeanor charges when the two people involved are less than three years apart in age difference.
• PC Section 803(g) allows prosecution of statutory rape within one year of identifying the suspect through DNA evidence or within one year of filing a police report if the contact was substantial and there is substantial evidence to corroborate the account.
• PC 261.5(c) allows three years to press misdemeanor or felony charges if the two people involved are more than three years apart.
• Prior to January 1, 2017, PC 288 allowed up to 10 years after the victim’s 18th birthday to press criminal charges for statutory rape.

If your incident of sexual abuse occurred after January 1, 2017, there is no time limit on when you can press criminal charges against your perpetrator.

Finding a Lawyer to Help

Now that you’ve been made aware that there is no statutory rape statute of limitations in California, it can be challenging to decide whether to press criminal charges or file a civil suit. If you’ve already decided, there is still a legal maze of paperwork that requires the aid of the right attorney. Whether you are an adult victim or the parent of a victimized child, the aftermath of statutory rape 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.

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.

An investigation by The New York Times found previously undisclosed sexual abuse allegations against Hollywood producer Harvey Weinstein that stretched over nearly three decades. How was it that he was able to continue this behavior for so long? The Times also reported that Weinstein’s employees had been required to sign contracts promising not to make statements that could harm the reputation of the firm or its top executives. In theory, that would mean women who were being sexually abused were prohibited from speaking out against their abuser.

“There’s a lot of misinformation surrounding non-disclosure agreements, as they pertain to sexual harassment and assault,” explains San Francisco trial attorney Ryan B. Erickson. “The fact of the matter is that a non-disclosure agreement in and of itself should not prevent you from seeking justice through a civil lawsuit if you have experienced sexual abuse or harassment. Sexual predators cannot hide behind a signed sheet of paper with absolute immunity.” In fact, the signing of a confidentiality agreement can actually help you build a legal case.

Signing a Non-Disclosure Agreement Doesn’t Prohibit You From Seeking Litigation in a Sexual Assault Case

There are ways to still pursue civil litigation for a sexual assault claim, even if you’ve signed a non-disclosure agreement.

1. Challenging a Non-Disclosure Agreement

According to the American Civil Liberties Union, there are several ways to challenge non-disclosure agreements (NDAs):

• If you were coerced by a powerful entity to sign an NDA, it could be considered an unconscionable contract. A court may rule in favor of “procedural unconscionability” if you were threatened with personal or professional consequences for refusing to sign.
• NDAs are unenforceable if they are determined to be contrary to public policy. For example, in one case, the federal circuit court shot down settlement provisions in a corporation’s NDA that prevented its employees from cooperating with the Equal Employment Opportunity Commission in their investigation.
• In California, state laws bar settlement agreements with non-disclosure provisions related to rape or felony sexual battery.
• The National Labor Relations Act protects the right of employees to engage in concerted activities for mutual aid or protection. One can easily see how prohibiting the discussion of sexual complaints would endanger other employees.
• Certain legal elements trump a non-disclosure agreement by nature. Subpoenas from the government and interviews initiated by law enforcement officers cannot be thwarted by pointing to a signed agreement.

2.  Confidential Settlement Is an Option

There are many complexities when taking a sexual abuse case to court. The process itself could take years to complete. For some, a fast settlement is preferable to a drawn-out lawsuit. Not all sexual abuse survivors want to deal with the emotional impact of their case being heard in court. Concerns about privacy drive most confidential settlements. Working with an experienced sexual abuse attorney to confidentially settle your claims may be the right option for you.

3.  Future Employment Opportunities Are Protected

Confidentiality agreements can be two-way streets—they protect the company’s reputation, but they can also ensure a victim of sexual assault maintains their privacy after a civil case. We tend to think that women who report sexual harassment and abuse will be much better off once they’ve spoken out publicly about their experiences. Unfortunately, that is not always the case. Women in particularly high-ranking positions often don’t want the terms of their settlements to be public for fear of how it may impact their future employment prospects or relationships.

As Paula Brantner, senior adviser for Workplace Fairness stated: “Many people, after they’ve been through something like this, they didn’t want it to happen, they didn’t bring it upon themselves and they just want to put it behind them and go on with their lives. And so, some think the non-disclosure agreement is the best way to do that.”

4. Whether You Signed or Not, You’re on the Right Side of the Law

Since the Harvey Weinstein scandal and #MeToo Movement gripped the nation, pressure has been placed on legislators to regulate the enforceability of confidentiality agreements when allegations of sexual abuse or harassment are at issue.  

“If there had been no secret settlement in the first case, maybe there wouldn’t be an additional 60 women,” said California State Senator Connie Leyva of the Weinstein scandal. She and other lawmakers are calling for a ban on employer non-disclosure agreements.

In 2016, California became the first state to ban non-disclosure agreements in civil cases that could be prosecuted as felony sex crimes. The new proposals in SB 820 would extend that protection even further to include non-felony harassment as well. The bill passed both houses of legislature and awaits a signature from Governor Jerry Brown this session.

Work With an Attorney Who Will Fight for Your Rights

Businesses are careful to shield themselves from liability. But all too often, an individual’s rights get lost in the process. At Lewis & Llewellyn, we fully understand the confusion surrounding non-disclosure and confidentiality agreements. They can be misleading by design and aimed at keeping a lid on controversy, even when a public controversy is the appropriate result.

Your first meeting with one of our experienced team members is always fully confidential and free of charge, so you risk nothing by speaking to someone about your legal options. If you are worried about a disclosure you’ve signed, please speak with us when you are ready.

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.

If you’ve been a victim of sexual harassment, you may be wondering what kind of attorney can help you obtain justice. In your research, you may have found that personal injury attorneys deal primarily with physical injuries and the costs of medical treatment. But is sexual harassment considered a personal injury? Is there another type of attorney better qualified to help with the complexities of sexual harassment law?

Is Sexual Harassment a Personal Injury?

Personal injury is a legal term for an injury to the body as opposed to property or reputation. While properly classified as personal injury cases, the litigation that stems from incidents of sexual harassment and sexual abuse is unique for a number of reasons.  

Perhaps most importantly, the damages that result from sexual abuse are difficult to quantify. Such abuse can result in severe emotional trauma, that includes, among other things, depression, anxiety disorders, and PTSD. These emotional damages can also manifest many physical symptoms, including headaches, shortness of breath, chest pain, muscle aches, nausea, fatigue, insomnia, dizziness, changes in appetite, and lack of desire.

Some personal injury attorneys may take sexual harassment cases. However, beware of a law firm that promises to be a “Jack of All Trades.” They may have handled one or two similar cases, but that doesn’t mean they’re the right fit. Because there is no such thing as a standard or routine sexual abuse case, so should seek out an experienced attorney who will treat your case as unique.  

Things to Consider When Choosing an Attorney

If you’ve been sexually harassed or abused in the workplace or in school, you may be able to bring a claim against not only the perpetrator but also the company or school district. You want to find an experienced lawyer who has compassion for your case, in-depth understanding of federal and state law, and the ability to handle your case from the investigation stage all the way through resolution. In choosing the representation, here are some things to consider:

• Experience: Look for a legal firm with experience; one who understands what is required to prevail in a civil proceeding against a powerful and well-funded institution. That’s why our firm only has lawyers who come from the nation’s top law schools and have years of experience litigating high-profile cases at some of the world’s most respected law firms. Don’t choose a personal injury law firm that happens to handle sexual abuse cases along with automobile accidents or slip and fall cases. Instead, look for a firm whose team of lawyers provides the same aggressive and exhaustive representation to all their clients, and a team that has recovered millions of dollars on behalf of their sexual abuse clients, and in the process, has driven changes at institutions throughout the country that will help protect others from sexual abuse.
• Legal Costs: Some firms ask that you pay a fee upfront to review your case and ask for additional retainer money. It’s best to work with a firm that offers free consultations to victims of sexual harassment and one that doesn’t charge fees for service unless they are successful in obtaining a recovery on your behalf. Our firm understands many victims of sexual harassment have lost employment as a result or suffered emotional trauma that makes day-to-day work difficult. If, for personal reasons, you decide a trial is not for you, look for a legal firm willing to work tirelessly to get you just compensation through negotiation that will help you move on with your life.
• Convenience: Oftentimes, firms with “1-800” numbers are located out of state and may have a satellite office of legal assistants. Since sexual harassment cases can be much more time-consuming than other personal injury cases, you’ll want your lawyer nearby, where you can easily meet with them face-to-face whenever needed. When you want to speak with someone from our team, we’re located in the heart of the Financial District in San Francisco, easily accessible by public transportation. And if you’re unable to meet us in person, someone from our team will be available to speak with you.

Let an Experienced Attorney Fight for Your Case

Due to the complex nature of sexual harassment and sexual abuse, you should seek to retain an attorney who has substantial experience filing, litigating, and trying this unique kind of personal injury case.  The right lawyer will be devoted to the cause of justice for sexual abuse survivors, and will serve as your advocate and confidant throughout the litigation process.

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.

Suing a school in California has its own set of complexities, but choosing the right attorney shouldn’t be one of them. When choosing an attorney for your case, you not only want someone who is experienced and understands the laws, but someone who is also compassionate to your suffering and prepared to take your case to court if necessary.

The right attorney will consider your recovery while simultaneously advancing your civil claims in the strongest manner possible. That attorney’s law firm will have the necessary personnel and upfront resources to go up against dismissive defendants looking to maintain a certain reputation and shirk all responsibility for what happened to you or your child. Your success hinges on choosing the right attorney, knowing who and when to sue, collecting compelling evidence, and presenting that evidence in a convincing manner to the judge and jury.

In this article, we’ll explain what kind of attorney you need to sue a school in California, the difference between criminal and civil litigation, and how government immunity could affect your case.

What Kind of Attorney Do I Need to Sue a School for Sexual Abuse?

There are critical differences between criminal litigation and civil litigation. Criminal litigation, headed by a state District Attorney, focuses on punishing individual wrongdoers for breaking the law—in essence, “crimes against the state”—with sexual abuse survivors acting as witnesses to a crime. The case may wrap up early through a plea bargain or may go all the way to trial, resulting in possible jail time for the offender, criminal fines, and the offender’s inclusion in a sex offender database. In order to obtain a guilty verdict, the District Attorney must prove “beyond a reasonable doubt” that the accused committed the crime.

Civil litigation, headed by a sexual abuse attorney of your choice, focuses on restitution for victims of crime, with sexual abuse survivors taking a leading role in the decision-making. Though you receive experienced counsel every step of the way, it is ultimately the plaintiff, not the leading attorney, who decides whether to go ahead with the lawsuit and whether to accept an offer to settle the case. Cases may settle early or may go to trial, potentially resulting in thousands or millions of dollars paid to the plaintiff in damages for emotional pain and suffering, medical bills, and time off work, among other things.

In a civil case, attorneys must demonstrate that it was 51% or more likely, based on a “preponderance of the evidence,” that the alleged abuser committed the crime and is liable for the plaintiff’s suffering. Compared to a criminal case, this is a relatively low threshold of evidence.

Can I Sue a Public School for Sex Abuse in California?

In addition to going after the perpetrator, you may also sue a number of third-party entities who allowed the abuse to take place—administrators, school districts, and school insurers, for example. But in cases involving public schools, government immunity can come into play. Government immunity prevents citizens from engaging in costly litigation against government entities.

As a taxpayer, you can understand why such legislation is necessary to prevent a constant barrage of lawsuits paid for by all the other Californians who aren’t named in the suits. However, in 1963, the California Legislature recognized the need for reform, as some acts are so heinous they require a thorough investigation, and passed the California Claims Act (CCA). The CCA was intended to provide public entities with sufficient information to investigate a claim, facilitate settlement, enable the public entity to engage in fiscal planning, and discover ways to avoid similar liability in the future.

Government immunity does not protect public schools where gross negligence is at play. Gross negligence is defined as “carelessness to the point of consciously violating another person’s safety.” In some cases, public schools may be sued for negligent hiring, negligent retention, negligent supervision, and failure to report sexual abuse.

The downside to suing a public school is that the deadline for taking action is extremely short. As a plaintiff, you have up to six months from the incident to file a written claim against a public school receiving government funds. Thankfully, the California legislature recently provided an important exception to this requirement for claims related to childhood sexual abuse.  Also, when it comes to late claims, California law does allow for exceptions to the rule. Late claims may be allowed due to “mistake, inadvertence, surprise, or excusable neglect.” Exceptions are also permitted when the claimant is a minor or unable to file a timely claim due to physical or mental incapacity.

To file a lawsuit against a public school or district, your written claim must include the following:

• The claimant’s name, address, and address of correspondence
• The date, time, and location where the incident occurred
• The damage the abuse caused
• The names of any public employees causing or contributing to the harm suffered
• Whether the amount sought is less than or greater than $10,000
• If greater than $10,000, a breakdown of case damages is also requested

Once the claim has been received, the public entity may challenge you with any defects or omissions that prevent the claim from complying with CCA rules within 45 days. If your claim is rejected or ignored, preparations to file a civil lawsuit can commence.

Can I Sue a Private School for Sex Abuse in California?

If you attended or your child currently attends a private school, you may be worried about what rights you have. While it’s true that most of your rights are based on terms of enrollment, student handbooks, school policies, and codes of conduct, your right to sue stands strong in the face of grievous acts like sexual abuse. Government immunity does not extend to private schools unless they receive federal funding.

Regardless of whether your child attends a public or private institution, you would file your claim in much the same way, although you are subjected to a much more liberal timeline when suing a private institution. And the limit on this time period may be tolled (or paused) when the child is a minor, however, filing may be permitted at any age depending on when the offenses were committed and which law was in effect at the time.

Let’s Fight The Problem of Child Sex Abuse in Our Schools Together

Lewis & Llewellyn has been taking a stand against sexual abuse in schools for years. We have the experienced litigators, knowledge of the law, and the resources necessary to take on your case and win. We are no strangers to overcoming statute of limitation arguments and other commonly used defenses. While we cannot guarantee a particular outcome, we have won a substantial number of multi-million-dollar awards for our plaintiffs. Childhood sexual abuse litigation is a passion project for us. We are personally motivated to fight for those wounded and hold all guilty parties responsible.

If you are suing a school in California for sexual abuse, one of our experienced attorneys should represent your civil case. Together, we can force schools and school districts to awaken from their apathy and deal with predators in their midst. Together, we can take a brave step toward your family’s healing and put this unspeakable trauma behind you, knowing that justice has been served.

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 can feel terrible when the District Attorney dismisses your sexual assault case. One study found that only 17% of cases were accepted by the LA District Attorney. National research conducted by the University of Kentucky’s Center for Research on Violence Against Women came to similar conclusions—that anywhere from 14 to 18 percent of sexual assaults are prosecuted nationwide.

As devastating as it may seem, such a dismissal is not a reason to give up hope. District Attorney proceedings are often the beginning of your journey, but don’t have to be the end.

Why Do District Attorneys Reject Sexual Assault Cases?

There are many reasons a DA might reject a sexual assault case. Here are some common reasons, and high-profile cases that illustrate them:

• Statute of Limitations: Prosecutors declined to file charges against actor Scott Baio, stating that the statute of limitations had passed. The alleged abuse took place in the 1980s, under a 10-year statute of limitations. Just this year, SB 813 eliminated the statute of limitations on rape and child sexual abuse altogether, but it is not retroactive.

• Insufficient Evidence or Witnesses: It’s not easy to win a “he-said-she-said” case in a criminal court where the burden of proof is high, especially if you’re going up against a well-known celebrity like songwriter Seal. Upon looking into the allegations that Seal groped and forcefully kissed a young actress, the LA County District Attorney’s office could find no evidence to corroborate the story. Similarly, a case against musician Marilyn Manson was dismissed based on “lack of corroboration.”

• Classified as a Misdemeanor: The DA is in charge of prosecuting federal felony assaults. Essentially, it’s Defendant vs. The State, with you acting as a witness to the crime. When the crime itself is a misdemeanor, it falls under local jurisdiction. One example is the case of Hollywood agent Tyler Grasham. Of the four complaints against him, two were thrown out for being past the statute of limitations, one was declined due to lack of corroboration, and one case was remanded to the LA City Attorney for possible misdemeanor prosecution. The city attorney later rejected the case based on the statute of limitations.

• Refusal to Testify: At least five allegations have been made against director James Toback, but most cases are deemed “outside the statute of limitations.” In one case, the woman who brought the allegation later refused to cooperate with the DA during the investigation. If she changes her mind and works with them, the case can be re-opened.

Will the DA Reject My Case if I Can’t Testify?

You may have heard that District Attorneys seldom represent cases where the victim is unwilling to testify in court against the attacker. This is not necessarily true. The DA may still pursue charges even if you do not wish to testify under several different circumstances. For instance, if the abuser willingly admits the offense took place, your testimony will be unnecessary. You may not need to testify if there were bystander witnesses or other victims who have come forward to testify.

Live court testimony is always the most compelling, but it may not be necessary if you testified at a previous hearing or answered questioning on record. There are alternatives to providing testimony live in court, particularly for child victims of sexual abuse who may be traumatized by the frequent re-telling of their abuse. Since defendants may balk at the use of recorded testimony as infringing upon their rights to cross-examine the witness, another option is to request closed-door questioning in the judge’s chambers, without the defendant present. A 9-1-1 call can also be used as evidence in most court proceedings.

What To Do When the District Attorney Rejects Your Sexual Assault Case

District Attorneys frequently decline to pursue cases that are perfectly viable in the civil court context. Nevertheless, survivors sometimes report feeling as though office officials “disbelieved” their stories or even blamed them for what happened. There are DAs who look for corroboration and DAs who look for any excuse to reject sexual assault claims. A good 80% of cases simply require “further investigation.”

Critically, a criminal prosecution must overcome a higher standard of proof (beyond a reasonable doubt) when compared to a civil lawsuit, so a DA may decline to prosecute a case that would be strong in the civil forum.

So if the District Attorney rejects your sexual assault case, your best options are to:

1. A)   Work with an attorney who can present a stronger case to the DA.
2. B)   Try to resubmit to the DA while also pursuing civil litigation.  

What Do You Need To Win a Civil Sexual Assault Lawsuit?

Criminal proceedings are aimed at putting the abuser behind bars, while civil proceedings punish wrongdoing through financial channels. Here is what you need to have a civil case:

• Some type of injury or loss: Sexual assault is an extremely disruptive and life-changing event. If assaulted, your physical injuries (resulting in expensive medical care) may be evident immediately. More often, however, sexual assault injuries and losses appear years later on a mental and emotional level. You may be entitled to financial compensation for tangible losses like medical expenses, therapy bills, loss of income, as well as intangible losses such as loss of enjoyment in life or emotional pain and suffering.

• A culpable entity: In addition to suing the perpetrator, you may have a substantial case against other entities who breached their duty of care. For instance, when a teacher commits a sexual assault, school administrators, the school district, and their insurance company are often held liable for hiring and retention practices, failure to report, and failure to protect. Finding an attorney who specializes in this type of law is important in presenting a compelling argument that is likely to sway a judge and jury.
• Proof: In civil lawsuits, the standard of proof is lower—rather than proving beyond reasonable doubt, you must prove your case based on “a preponderance of the evidence.” By definition, if more than 50% of the evidence points toward the likelihood that your version of facts, damages, fault, and causes are correct, you win.

Many survivors prefer the civil system because it gives them the power to run their own investigations and decide what restitution is acceptable. Their attorneys can subpoena witnesses and uncover all the facts surrounding an incident of abuse. In that regard, pursuing civil litigation is not just about money: it’s about accountability. If the District Attorney rejects your sexual assault case, civil litigation is still a viable option; especially with the right attorney who will fight hard for your case.     

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.

A 2010 Christian Today International survey of more than 3,000 church members found that 20% of leaders knew of at least one convicted sex offender attending their church. Eighty-percent of survey respondents said that sex offenders who have legally paid for their crime should be welcomed into churches.

While it is true pastors and church leaders have the responsibility of extending grace to those who need it most, they also have a responsibility to shepherd flocks with wisdom, to protect the congregation, and to restrain evil. Church leaders can take advantage of statewide resources, such as Megan’s List, to help their congregations identify and address moral questions before they become legal concerns.

In this article, we’ll clear up some of the confusion around Megan’s Law, discuss how a Megan’s List offender can be a possible liability for the church, and offer solutions for developing a policy that is fair to the reformed while protective of the congregation.  

What is Megan’s List?

Sex offender registries are nothing new for California. In fact, we were the first state to implement them in 1947. However, these registries were used as confidential tools for law enforcement and social workers. Megan’s Law (named after rape victim Megan Kanka) was passed in 1996 and required states to make sex offender registries easily accessible to the public.

In California, Megan’s Law is dictated by Penal Code § 290.46. In 2017, SB-384 amended the law to include three tiers (which will go into effect in 2021):

• Tier 1 – Those convicted of misdemeanor sexual battery, child pornography, and indecent exposure. Requirement to register at this tier expires after 10 years and currently includes approximately 65,000 people.

• Tier 2 – Those convicted of lewd and lascivious acts with a minor, oral copulation with a minor under 14, most out-of-state offenses, and non-forced sodomy with a minor. Requirement to register at this tier expires after 20 years and currently includes about 24,000 people.

• Tier 3 – Those convicted of rape, sex crimes against children 10 and under, repeat offenders, and sex traffickers. Anyone on this list is required to register for life and currently includes about 8,200 people.

Knowingly Hiring Someone on Megan’s List is a Liability for California Churches

A church has never been held liable for unknowingly allowing a registered sex offender to attend services, but with all the public information available, a legal case can be made for what church officials should have reasonably known. Therefore, Megan’s List presents a sort of liability for churches in California.

While the church is not legally obligated to perform background checks on every church member who attends services, there is a legal duty to examine the record of someone who works in an official capacity. Church board members, volunteers, Bible study teachers, ministers, youth leaders, spiritual camp counselors, transportation providers, groundskeepers, or anyone with keys to the church should be evaluated before hiring.

Some offenders may have additional conditions that would exclude them from attending services or seeking employment within the church. For instance, registered sex offenders on parole or probation may be required to stay away from children for a certain period of time, stay away from the victim or victim’s family, or have no unsupervised contact with minors under 18. It is common for church officials to assign chaperones or to “re-home” sex offenders. Full disclosure to all parties involved is the key to a fair resolution.

What To Do If Your Church Hired Someone Off Megan’s List

When it becomes known that a registered sex offender is working for the church action needs to be taken immediately, otherwise liability may include punitive damages for gross negligence. There are several responses leaders can take:

• Terminate employment. A wise step before rendering any decision is to obtain a record of the sex offender’s prior criminal convictions by conducting a national criminal records check. If the offender is on probation or parole, you can check with the designated officer to find out what conditions have been imposed. Get this information in writing, if possible. In some cases, you may have legal grounds to fire a person on the sex offender registry in order to protect “a person/people at risk.”
  
• Ban from the congregation. It may seem like a harsh sentence to ban prior sex offenders from services as well, but plenty of churches employ a policy of total exclusion—particularly for Tier 3 offenders or repeat offenders. This especially applies to pedophiles who, statistically, have an extremely high recidivism rate, even if their last crimes were committed decades ago.
• Place conditions. Upon the discovery, you may ask the employee to sign a legal agreement (drafted by an attorney) to maintain employment with the church. In a conditional attendance agreement, you may stipulate the offender is only able to attend certain services, they may not work with or transport minors, attend children or teen functions, a chaperone (like an usher, board member, or legal guardian) can be designated to observe the person at all times on church property. Churches generally abide by a Zero Tolerance Policy for violations of said agreement.    
• Reach out. Many pastors choose to meet regularly in one-on-one meetings with the offender to provide spiritual counseling, above and beyond weekly services. Some churches also put in place adult-only services to minister to sex offenders who aren’t allowed in the presence of children.

Sex Offender Policies Are a Good Proactive Step

Though it may seem controversial at first, developing a sex offender policy is a sensible proactive step that many church leaders in the modern age take to shield their institutions from danger and accusation. This policy should clearly outline the church’s stance on allowing past-offenders to join the congregation or staff and what precautions will be taken. It should be looked over yearly and updated if necessary.

Reverend Madison Shockley, pastor of Pilgrim United Church of Christ in Carlsbad, California often counsels churches grappling with the decision to accept a convicted sex offender or not. He offers the following advice: “The key lesson for churches is this: The policy, however it winds up, must be a consensus of the congregation. I talked to so many pastors who decided they’re going to make the decision because they know what’s theologically and spiritually right—and that’s absolutely the wrong thing to do.” His church has commissioned a minister to address child sex abuse prevention and distributes a 20-page policy on protecting children and ministering to sex offenders.

As a further security measure, many churches keep internal imaged-based registries of sex offenders who attend church or live in the area. Security personnel is trained to keep a watchful eye around the children’s ministry, at the welcome desk, and around the restrooms.

Working With Law Enforcement and Lawyers

Seeking legal counsel from an experienced sexual abuse attorney will ensure that the proper safeguards are put in place, without infringing on the legal rights of the convicted.

In some cases, it may be advisable to notify all members of the congregation that a registered sex offender is in their midst, whereas other times simply the parents of minors should be notified or no notification is necessary at all. It is up to you to decide how much liability you wish to assume and how open you wish to be with your congregation.

If someone is behaving suspiciously or seeking private access to children, there is no harm in a background check. It also never hurts for churches to form a close partnership with their local law enforcement and a legal team. The last thing you want is for your church to be part of “the culture of secrecy” putting a child at risk or making headlines as part of a scandal.

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.

Deciding to speak to someone about what happened is a brave, bold move toward healing. It involves an emotional rollercoaster ride of coming to grips with the full scope of what you or your child experienced—perhaps for the first time. While difficult, seeking reparations and justice can provide you with a voice and an opportunity to stop dangerous individuals and institutions from inflicting harm upon others.

Filing a civil lawsuit is a complicated process, and working with an attorney can ensure that you present the best case possible. While finding an attorney can seem daunting, we’ll break down what you can typically expect if you decide to work with an experienced child sexual abuse attorney in California to pursue a civil lawsuit.

Stages of Working with a Civil Attorney for a Sexual Abuse Case in California

Stage 1: Case Evaluation

Once you contact a sexual abuse law firm, a consultation will be set up. These are typically no-charge, as most attorneys in sexual abuse cases work on a contingency basis (they only get paid if there is a successful settlement or verdict). All details discussed in this meeting are protected by attorney-client privilege, meaning that no one outside the firm will have access to the matters discussed or exchanged without your explicit permission. Following an initial consultation, the firm will determine if the case is a good fit for them and if you can benefit from their representation.

At minimum, the attorney or their representative will need to know:

• When and where the abuse occurred
• The identity of the accused perpetrator
• The type of injuries suffered
• What treatment you have had or are having
• If any physical evidence or eyewitness testimony was collected at the time
• Whether criminal charges were brought in relation to the abuse

The initial consultation is also an important time to see if you develop a rapport with the firm. You want to feel comfortable with the lawyer you’re meeting and confident in their ability to obtain justice on your behalf. You are under no obligation to sign on the dotted line. Before engaging with a law firm, you should be sure you have spoken with the attorney who will represent you in your case. Do not settle for a few short conversations with a series of staff members at the firm.  

Stage 2: Early Investigation

Next, the legal team will conduct a pre-lawsuit investigation of the facts surrounding the abuse claim. They may try to work with law enforcement agencies to obtain copies of police reports, see if similar complaints exist, speak to witnesses, and talk to treating therapists. After taking your initial statement, much of this work can be done behind the scenes to prevent you or your child from enduring continuous emotional upheaval.

Stage 3: Initiating Negotiations

The firm may then send a “demand letter” to the perpetrator introducing themselves as your representatives, briefly outlining the facts assembled, and opening the door to settlement negotiation as a way of avoiding the expense and embarrassment of court proceedings. They may provide therapy or medical bills as proof of financial burden. This is all done prior to filing a legal complaint. Sometimes the attorneys can reach an agreement at this stage, sometimes they can’t.

For strategic reasons, your attorney may decide to skip the demand letter and go straight to filing a lawsuit.

Stage 4: Filing a Legal Complaint

If early talks go nowhere, the firm may file all the formal civil lawsuit paperwork to state your claims and supporting facts, in addition to listing the specific damages sought on your behalf.

The papers filed with the court are sometimes referred to as “pleadings,” which are traditionally regarded as a matter of public record that can be read by reporters—particularly if the defendant is a high-profile person or institution. In California, you or your child may have the option of filing the lawsuit as “Jane Doe” or “John Doe” to protect privacy.

Stage 5: Discovery

Discovery is typically the longest phase of a civil case. During this time, you may be asked to answer additional questions in writing or to submit to a formal deposition (an interview) under oath before a court reporter. Each side may issue subpoenas requesting documents for inspection. The defendant may request your medical and psychiatric records, employment history, educational records, or personal journals. An independent medical examination may also be requested by the opposition party. Throughout all proceedings, your attorney will protect you from inappropriate questions and harassment.

Throughout the discovery phase, the defendant may seek to have your case dismissed by filling any one of a handful of “dispositive” motions. These motions can, among other things, raise defenses that completely shield the named defendant from liability, challenge legal foundation of the claims included in your complaint, and they can challenge the sufficiency evidence uncovered in the course of discovery. Your attorney should take the lead in opposing these motions and advancing your case to trial.  

Stage 6: Pre-Trial Resolution

At any point during the case, the parties can explore settling the dispute. One common vehicle for exploring settlement is conducting a mediation session with either a private mediator or a court-approved impartial third party. If insurance companies are involved, their representatives will be there, along with your counsel and the defendant’s counsel to see if the expense and hassle of a trial can be avoided. Your representative lays out the party’s theory of liability, injuries, and damages, and the defendant’s representative raises their defenses.

If settlement talks hit an impasse, and you are able to defeat any dispositive motions filed by the defendant, then the case will be set for trial. If the presented case has no facts in dispute, you or the defendant may ask the court to decide the case in a motion for summary judgment.

Stage 7: Trial

If the case goes to trial it will be tried in civil court. A trial presents an opportunity for the plaintiff to argue their case and for the defendant to refute it. After both sides have presented their arguments, the outcome of a judge’s and/or jury’s deliberation has different stipulations in a civil trial as compared to a criminal trial. During a civil trial, a judge or jury examines the evidence to decide whether, by a “preponderance of the evidence,” the defendant should be held legally responsible for the sexual assault alleged by the plaintiff. In other words, the judge and at least nine out of the 12 jury members must agree that it’s at least 51% likely the alleged crime was committed.

Once the jury has deliberated and reached a decision, a spokesperson from the jury informs the judge, and the judge announces the verdict in open court. Both parties must abide by the ruling, which is why you want to make sure your case is strong. The best way to do so is to partner with the right attorney, who’ll be at your side throughout this entire process, and is willing, from day one, to bring your case to trial if necessary, and fight hard to bring you justice. Working with a strong attorney is key to bringing a strong case to trial, so you want to make sure you partner with the right attorney who is willing to fight hard for your case.

Civil Attorney and Client Relationships Often Last for Years

From start to finish, it can take a child sexual abuse lawsuit an average of two to three years to reach full resolution. If an appeal is filed, your resolution could be delayed by two more years. Ideally, you’ll work closely with the same designated attorney throughout your experience, so you gain not only a legal counselor but also a trusted friend.

Beyond compensation, the best sexual abuse attorneys in California focus on stopping the cycle of abuse at the individual and institutional level. A successful resolution, in any case, sends the message that child sexual abuse can not—and will not—be tolerated in our society.

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.

Prior to 1994, there was knowledge of at least 2,000 instances of sexual abuse within the Boy Scouts of America. Most of the allegations were kept under wraps until 2010 in the Boy Scouts “perversion files lawsuit,” when the Oregon Supreme Court ordered the release of more than 14,500 pages of secret internal documents that would expose child sex abuse dating back to at least 1965, though unreleased documents are said to stretch back to the 1920s. The files illuminated a number of cases where abusers continued to have access to children through the organization.

If you are a former Boy Scouts member who has been abused, you may be wondering whether your scout leader’s name shows up in one of these perversion files. To what extent can the organization’s knowledge of the perpetrator’s past be proven? Here’s everything you need to know to file a civil lawsuit against the Boy Scouts in California.

What Are the Perversion Files, and How Do I Know If An Abuser Is On The List?

You may be wondering how you can win in an old case where it’s your word against theirs. Many of these cases now rely upon evidence compiled in the perversion files—or, as it’s more eloquently labeled, “the ineligible volunteer list.” The internal files were intended to keep suspected molesters from serving in the scout leadership, and were kept secret to protect the rights of victims and the wrongfully accused. However, the massive trove of files show that the Scouts often failed to report abuse to authorities and repeatedly covered up evidence to protect their reputation.

After the 2010 court case, the perversion files were posted publicly online, allowing victims to search their abusers’ names to see what information exists from 1965-1985. If your abuse falls outside this window, you will need to work with a lawyer to petition another release of documents pertinent to your case.

It might also be relevant to search public records on the perpetrator. According to University of Virginia Psychiatry Professor Janet Warren, over 60% of the “perversion files” include some type of easily accessible public information. “These public domain sources included newspaper articles, police reports, criminal justice records, and records of civil litigation,” she told CNN, adding: “The majority of men in the files were arrested at some point in their lives for a sex crime.” Thanks to Megan’s Law, you can check public records related to California sex offenders here.

Determining Whether to Press Charges or File a Civil Suit Against Boy Scouts

Thankfully, California is one of the most progressive states in protecting a childhood sexual abuse survivor’s right to sue. Section 340 of the Civil Code gives California plaintiffs up to age 26 or within three years of the discovery of harm to sue for offenses committed before January 1, 2015, but many exemptions exist, so it’s best to seek legal advice before automatically assuming your deadline to file has passed.

Once you know that you can take legal action, one of the first decisions you’ll have to make is whether to press criminal charges and/or file a civil suit against the BSA for the harm you have suffered. It is more difficult to obtain a verdict in criminal proceedings where verdicts must be unanimous and determined beyond a reasonable doubt, but it could put a serial offender behind bars. It’s worth noting that there is a less demanding standard in civil cases, where judgments are rendered based on a “preponderance of the evidence” that generally favors the plaintiffs.

If the State District Attorney decides to prosecute a defendant on your behalf, civil court proceedings may be “stayed” (put on pause) until the criminal case has concluded. If the criminal culpability is established, the civil case may have lower costs for discovery.

Liability in a Civil Suit Against BSA Organization & Management

In sexual abuse cases involving serial-abuse within organizations, the perpetrators are often not solely relied upon to pay for damages. Attorneys typically seek to name institutions that aid and abet child molesters as defendants as well. The entire Boy Scouts of America organization has a legal “duty of care” to take reasonable measures to keep the children entrusted to their care safe from harm.

Camps and troops can be found directly liable for sexual abuse when it is determined they were negligent in screening, selecting, training, supervising, or retaining staff members and in taking “reasonable measures” to protect campers. Direct liability can be established when it is discovered that perpetrators were already listed in the perversion files at the time of the offense.

For example, in one 2010 verdict, the jury found the Boy Scouts of America 60 percent negligent, the Church of Jesus Christ of Latter Day Saints (who sponsored that particular Boy Scout troop) 25 percent negligent, and the Cascade Pacific Council (which oversees scouting activities in the region) 15 percent negligent.

Compensation in Boy Scout Sex Abuse Cases

Both the perpetrator and the organization may be sued individually to recover compensation. As a survivor of sexual abuse at the hands of a Boy Scout leader, you may be entitled to compensation to cover:

• Medical bills—covering past and present expenses for physical harm
• Therapy bills—covering past, present, and future expenses for psychological trauma
• Punitive damages—considered punishment for the defendant

To date, the $18.5 million outcome of Lewis vs. Boy Scouts of America (2010) represents one of the largest punitive damage award in a sexual molestation case in U.S. history. In another lawsuit, in Waterbury, Connecticut, $7 million were awarded in compensatory damages for sexual molestation and assault committed by a Boy Scout leader in the mid-70s. The jury found the Boy Scouts of America liable for $4 million in negligence and $3 million for negligent infliction of emotional distress.

The exact amount of compensation you receive will depend upon the facts and circumstances of the case. No verdict can be guaranteed, but thus far, many outcomes have favored the plaintiffs, with large settlements and jury awards. According to Slate in 2009, the Boy Scouts had set aside $65 million and carry additional insurance in order to pay for the harm their negligence has caused.

More Than 50 “Ineligible Volunteers” Were Provided Access to Children

The Boy Scouts of America organization has been a defendant in at least 200 lawsuits since 2008. In the past, the BSA has fought hard to keep the perversion files sealed. They’ve settled cases outside of court to prevent damning documents from coming to light, and hired lobbyists to fight expanded “lookback windows” that would allow adult survivors to take legal action. But in recent years, the group has taken steps to protect children—including screening adult leaders, requiring mandatory training and abuse reporting, and providing counseling services to former scouts who were molested.

The BSA claims these “red files” originated to prevent known abusers from gaining access to children, but we see that, in many instances, such efforts failed. The LA Times found at least 50 instances where known pedophiles on the ineligible volunteer list were permitted to rejoin the Boy Scouts after being blacklisted. If cases of abuse such as these are part of your childhood, know that there are laws in place to protect you, even when others have not.

The California attorneys at Lewis & Llewellyn are not intimidated by large organizations such as the BSA. Our passionate and experienced trial attorneys have represented both adult and child victims of sexual abuse across the nation, which is why a leading legal publication, The Daily Journal, recently described our firm “a giant slayer.”

Recognized for our track record of multi-million-dollar settlements and awards, our passion lies in holding the worst type of predators accountable for their wrongs and helping survivors find a measure of dignity in the aftermath of trauma. Contact us or call +1 (415) 800-0590 for a free, confidential, no-obligation case review.

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.

As parents, we place a lot of trust in our schools to provide supervision in our stead. Child abusers are naturally attracted to positions of trust and power where they have access to minors, like in the classroom. Many of these abusers should trigger red flags warnings—but don’t. All too often, educators fail to follow protocol—and even turn a blind eye to abuse that is happening beneath their noses—because they don’t want to believe that these horrors could take place in their school.

If sexual abuse has personally affected your family, the sting of betrayal may have you wondering how to sue a school district in California. A civil lawsuit cannot undo the pain your family has suffered, but it can help change the system that enables sexual predators on our state campuses and protect more innocent students from future abuse.

In this article, we’ll talk about who can be sued for child sex abuse in schools, what documentation you’ll need, and the steps to take to file a complaint and a lawsuit.

Who is Liable for Sexual Abuse at School?

Beyond the obvious perpetrator of the abuse, the civil justice system allows for multiple parties to be prosecuted when sexual abuse occurs at school. Suing the school itself is often a more effective strategy to recover damages, as they have insurance and more funding available to pay than an individual. It is also important we hold institutions enabling abuse accountable to remedy the hazardous environment being created and prevent future harm from befalling other students.

As an example of what this shared blame looks like, a teacher’s aide at Prairie Elementary School in Southern Sacramento was arrested in September 2016 on seven counts of lewd and lascivious acts. Upon investigation, it was found that there were many ways the school was liable for violating standard protocol.

• Though the aide was uncertified and not legally allowed to be alone with the children, there were multiple occasions where he was unsupervised.
• A yard supervisor failed to file a report after students came to him with their complaints.
• The school quietly put the aide on paid administrative leave after his arrest, but failed to tell parents for two months.

In their lawsuit, parents held multiple parties liable, including the teacher’s aide himself, the Elk Grove Unified School District, the principal, the vice principal, the teacher of the classroom where the abuse occurred, and the after-school program supervisor.

How To Sue A School District in California

#1 Get help.

Suing a school district in California is full of complexities, but with the help of an attorney, you can draw up the most effective lawsuit against the school district.

#2 Tell your story.

The initial phase of exploring your civil claim will necessarily involve telling your story to your attorney. Working with an attorney that has experience communicating with young children and victims of sexual abuse should make these difficult conversations much easier.

#3 Identify legal grounds to sue.

Crafting a strong legal argument for liability and identifying the right legal “causes of action” in these cases are crucial to success. Many different California and federal laws protect students from sexual abuse and harassment, including Title IX, the Fourteenth Amendment’s Equal Protection Clause, California’s Unruh Civil Rights Act, the state Education Code 220, and common law claims like fraud and negligence—to name a few. Thankfully, California has always been a leader in protecting victims’ rights.

#4 Identify liability.

In sexual abuse cases, you can seek compensation for personal injuries caused by a school employee, sexual misconduct, failure to protect a child, and failure to report abuse. School districts may be charged for negligent hiring, negligent retention, or negligent supervision—among other claims.

#5 Submit paperwork.

Once you and your attorney have identified which legal issues are at stake, you can prepare your complaint by filing paperwork with the proper court and compiling evidence to build your case. Notice of pending litigation will be served to the school district, and the district must submit a timely written response.

#6 Corroborate your story with discovery.

During the discovery process, attorneys will uncover facts to support your claims by using the “tools of discovery,” which include written requests for documents and interviews under oath with witnesses, teachers, administrators, students, and parents of other children at the school. Your attorney will determine whether expert testimony is required to strengthen the case.

#7 Await a decision.

Once a legal complaint has been filed, those being sued will often try to have the case dismissed by filing legal challenges with the judge. If your case survives these challenges, it will ultimately be up to jury to decide whether there is liability and how much money will compensate you for the harm you have suffered. Also, it is critical to keep in mind that at any time during the life cycle of a case—from before the complaint is even filed to the middle of a jury trial—the parties can come to an agreement to settle the case.

Suing a School District in California

Parents entrust teachers and school districts 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 school district 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.

Lewis & Llewellyn has assisted plaintiffs in suing both public and private institutions in California. School districts may try to defer blame or shield themselves from liability by seeking refuge behind various“immunity” laws, but our multi-million-dollar track record is a testament to our commitment to achieving justice for our clients. If your child has been sexually abused at school, contact us or call +1 (415) 800-0590 for a free, no-cost evaluation of your case.

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.

About half of all states still impose a time limit for pressing charges and filing civil lawsuits for sex crimes. Victims have anywhere from one year (in Washington), all the way to 30 years (in Louisiana) to file a legal complaint. Here in California—fueled by a whirlwind of Bill Cosby rape allegations, #MeToo activism, and improvements to the state’s DNA database—a new law passed in September 2016 has eliminated the criminal statute of limitations for rape and child molestation.  

Prior to the passage of SB 813, California placed a 10-year limit on bringing a case against sex abusers. While this may sound perfectly reasonable to defense attorneys, survivors know that there is no time limit on their suffering. Evolving cultural understandings are paving the way for longer statute of limitations. As The Washington Post explains: “In the Weinstein case, dozens of women were unwilling to come forward with their accusations of sexual misconduct at the time of the alleged incidents. Now, at least in part because cultural norms around sexual abuse are shifting, survivors are speaking up.” Similarly, it took one brave woman to come forward in the Bill Cosby case to break the silence for over a dozen more women.

There is no doubt for these cases of past abuse that SB 813 was much-needed, but there is still one big question for many survivors of sexual abuse: Is California Senate Bill 813 retroactive back to when a sex crime occurred, or does it begin on the date when the law was enacted?

When Does SB 813 Go Into Effect?

When bills are passed, they can be classified as “prospective legislation” or “retroactive legislation.” Prospective bills go into effect on a set date in time for the foreseeable future. Retroactive bills (sometimes referred to as “ex post facto laws”) essentially erase laws enforced in the past and create an entirely new law of the land that extends as far back in time as people can remember.

If you were sexually abused more than a decade ago, you may have hope that SB 813 opens the doors to speaking out about what happened to you and holding your abuser(s) accountable. However, SB 813 was passed as a prospective bill that applies to rape, forcible sodomy, and child molestation occurring on or after January 1, 2017. Any criminal trials from that point on, and going forward, will follow the new guidelines. The old laws already had a 10-year limit on filing for sexual abuse, so we won’t see the full effects of this law until January 2027.

Is SB 813 Retroactive?

Some see the new law as a major victory for victims of sex abuse, but it won’t apply to the women who say Cosby abused them, as the bill is not retroactive. If you were sexually assaulted, the laws and statute of limitations that were in place at the time the abuse occurred apply to your case.

However, it’s not a victory for the abusers either. “Governor Jerry Brown’s signature of SB 813 tells every rape and sexual assault victim in California that they matter and that, regardless of when they are ready to come forward, they will always have an opportunity to seek justice in a court of law,” said California Senator Connie Leyva. “Rapists should never be able to evade legal consequences simply because an arbitrary time limit has expired. There must never be an expiration date on justice!”

The approval of SB 813 is a testament to decades of hard work from victim advocates. Passage of new legislation helps “keep the fight alive” for those who have spoken up and gives hope to those who have yet to come forward.

Why Isn’t SB 813 Retroactive?

America has always had a strong tradition of prospective legislation and a rebuke of ex post facto law. Congress is generally prohibited from passing ex post facto laws by clause 3 of Article I, Section 9 of the US Constitution. The framers of the Constitution felt it was important that citizens have fair notice of the laws that will be affecting them, so as a general rule, laws should operate prospectively to provide such notice. Thomas Jefferson once described retroactive laws as “equally unjust in civil, as in in criminal, cases.” Early statesmen warned that giving Congress the ability to make laws retroactive would give legislators too much power over individuals. According to Alexander Hamilton, the Ex Post Facto clause encourages the adoption of universally applicable laws and prevents lawmakers from punitively going after a particular person simply by passing a law.

In the 2003 case of Stogner vs. California, the U.S. Supreme Court ruled that it is unconstitutional to retroactively remove criminal statutes of limitations to make it easier to prosecute child sex abuse cases. The case was brought against Defendant Stogner in 1998 for child sex abuse committed between 1955 and 1973—for which the limitations period was three years. “The [Ex Post Facto] Clause protects liberty by preventing governments from enacting statutes with manifestly unjust and oppressive retroactive effects,” the Supreme Court contended.

One rare exception to the rule is the Adam Walsh Child Protection and Safety Act of 2006, which requires every sex offender (regardless of when the crime was committed) to register their whereabouts. In Smith vs. Doe (2003), the U.S. Supreme Court ruled that the retroactive nature of the law was constitutional because there is no real “punishment” imposed.

What If I Was Sexually Abused Before SB 813 Was Passed?

Beyond SB 813, survivors still have many different options for pursuing justice, even when their cases seemingly fall outside the deadline for filing a criminal report or civil lawsuit.The old law allowed several exceptions for sex-related crimes that may apply to you:

• Special Childhood Sex Abuse Statute of Limitations for Civil Lawsuits: California law allows for a rule of Delayed Discovery. If your abuse took place before January 1, 2015, you have until age 26 OR within 3 years of the discovery that your current psychological injury or illness is linked to the prior abuse. If your abuse took place on or after January 1, 2015, you have until age 40 OR within 3 years of discovery.

• Reporting Window for Civil Lawsuits: Perpetrators of sexual abuse and institutions that condone or turn a blind eye to sexual abuse may also be sued for damages in civil court. Civil claims have a different statute of limitations than criminal claims, and there are various exceptions that can extend the effective deadline even further depending on the facts of each particular case. The laws governing these limitations and exceptions are complex, so we advise discussing them with your lawyer in person.

What If SB 813 Can’t Help Me?

Calculating the Statute of Limitations in the wake of ever-evolving laws can be confusing and intimidating. Discouraging as it may seem, it is never too late to speak up and seek justice if you or someone you love has been abused. There is compassion built into the existing set of laws for survivors of the most heinous types of abuse.

The attorneys at Lewis & Llewellyn excel at pursuing justice in childhood sex abuse cases where the statute of limitations appears to have expired. We understand that it can take a long time to come to terms with what has happened to you and are here to help. Contact us for call +1 (415) 800-0590 for a free and confidential consultation.

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.