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Following the #MeToo movement, lawmakers have set their sights on eradicating the culture of sexual harassment in the workplace. California Senate Bill 1300 (SB 1300), was signed into law on September 30, 2018, and became effective January 1, 2019. This is one notable example of a state law indicating that sexual harassment victims are to be believed, supported, and reimbursed for the traumatic events they have endured.

If you’ve experienced sexual harassment in the workplace, legislation like SB 1300 is designed to bring you justice.  

What is the Fair Employment and Housing Act?

California’s Fair Employment and Housing Act (FEHA) was passed on September 18, 1959,  which made it illegal to discriminate against a job applicant, employee, or housing seeker based on their gender. This anti-bias law applies to any landlord and any business, labor organization, employment agency, apprenticeship, or training program in California with five or more employees, whether a person is an applicant, unpaid intern, volunteer, contractor, or employee. By law, employers can be held financially liable for the actions of their employees if they knew or should have known about the misconduct but failed to take the appropriate corrective action.

Anyone who feels they have been discriminated against may file a formal complaint or pursue a lawsuit against the offending company for back pay, future lost earnings, reinstatement costs, training, reasonable accommodations, legal costs, damages for personal harms (emotional distress, anxiety, fear, depression, and humiliation), and any related out-of-pocket expenses. Furthermore, the employer can be hit with punitive damages and be compelled by the courts to implement policy changes.    

How Does SB 1300 Amend FEHA?

FEHA was a worthy start, but many have said it hasn’t gone far enough in protecting victims of sexual harassment. SB 1300 is a significant amendment to existing law that:

1. Expands the scope of FEHA beyond sexual harassment to include other forms of unlawful harassment, including other protected classes such as:

• age
• ancestry
• disability
• gender identity or expression
• genetic information
• marital status
• medical condition
• military and veteran status
• pregnancy, childbirth, or breastfeeding status
• race
• religion
• sexual orientation

2. Expands the scope to a larger pool of workers (not just applicants or employees), like:  

• contractors
• interns
• volunteers

3. Ends the code of secrecy by prohibiting conditional “release of claims” contracts:

Employers are prohibited from demanding that employees sign a “confidentiality clause” to make a “secret settlement.” New or continued employment and advancement can’t be conditional based on the signing of a “release of all claims” form that absolves the company of liability for misconduct. These types of non-disclosure agreements were an issue in the Harvey Weinstein sexual harassment cases.

4. Eliminates the ability of defendants to seek legal costs from plaintiffs:

Before SB 1300, courts were allowed to award the prevailing party—whether plaintiff or defendant—with damages for legal costs, including attorney fees, expert witness fees, and other costs of litigation. Now, only sexual harassment victims can retrieve such reimbursement—unless the courts find the action was “frivolous, unreasonable, or groundless.”

The passage of SB 1300 is an encouraging sign for victims of sexual harassment in the workplace. When faced with greater potential for exposure and expense, employers are forced to take a harder look at their anti-discrimination policies and company culture. They will need to examine whether their current harassment and discrimination training, employee handbooks, and internal complaint procedures are sufficient. Legislators are sending the message that it’s not okay for employers to allow sexual harassment to proliferate in the workplace.

Contact an Experienced Attorney Regarding SB 1300

If you have questions regarding how SB 1300 impacts your case of sexual harassment, it is best to consult with an experienced attorney. Understanding the laws against sexual harassment can be complex, companies may even try to use loopholes to avoid liability. Even if SB 1300 doesn’t specifically apply to your case, there may be other laws providing ample grounds to sue. 

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.

Many survivors of sexual abuse grapple with the thought: “I’ve never told anyone I was molested, can I still do something about it?” If this is your thought process, you are not alone. Oftentimes survivors of sexual abuse—particularly those who experienced childhood sexual abuse—take years to come forward, if ever. Reasons vary from person to person, but victims commonly report feeling embarrassed, ashamed, guilty, or fearful. Sometimes they can’t find the right way to bring up the topic with a trusted adult or they fear how others might respond.

Many survivors of sexual abuse carry the trauma with them well into adulthood, believing there is no point in speaking up years later. Yet, it’s this very thinking that allows child molesters to continue to walk the streets, amass multiple victims, obtain powerful positions in employment, and live their lives without consequence.

If you are apprehensive about speaking up about the abuse you’ve suffered, learning what to expect can ease your worries and enable you to break the barrier of silence you’ve maintained.  

Can I Seek Justice for Molestation Years Later?

Yes. California state law makes it plain: No matter how long ago you were molested, you can still seek justice. In 2016, California abolished the 10-year time limit for pursuing criminal charges for rape and child molestation cases with the passage of Senate Bill 813.

Assembly Bill 218 (AB 218) gives molestation victims a wider timeframe to file lawsuits seeking financial redress in civil courts as well. The bill expands the definition of childhood sexual abuse to be referred to as “childhood sexual assault.” It also 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. 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.

It’s understood that this can be overwhelming and confusing but an experienced attorney can assist you during your pursuit of justice. 

What Are My Options for Pursuing Justice?

There are two general ways to hold perpetrators accountable for child molestation:

Press Criminal Charges

End Goal: To determine the guilt or innocence of the suspect and put proven perpetrators behind bars, require them to pay fines, mandate probation, and place them on the sex offender registry.

Standard of Evidence: You must convince the judge and jury that your story is accurate “beyond a reasonable doubt.” 

Additional Benefits: Many survivors feel safer and express great satisfaction in seeing the people who harmed them placed behind bars and held responsible for misconduct. 

Who Can Help: Contact local law enforcement to file a police report and let them know you wish to press criminal charges. If the evidence is sufficient, the local District Attorney will likely take on the case. 

Seek Civil Remedy

End Goal: To award financial redress for any personal damages suffered as a result of the abuse. Damages may include medical bills, lost wages, and pain and suffering.

Standard of Evidence: Survivors must prove their stories true “based on a preponderance of the evidence.” In other words, the judge and jury must feel the story is at least 51% likely to have happened. This is a much lower standard of evidence than the pursuit of criminal charges.

Additional Benefits: Civil lawsuits not only punish individual offenders but the larger institutions that knew about (and even enabled) child abusers. Church dioceses, school districts, sports organizations, and mandated reporters have all been implicated in civil lawsuits. 

Who Can Help: Civil attorneys who don’t claim to be a “Jack of all trades,” but instead specialize in cases of sexual abuse. 

It is important to note these two actions are not mutually exclusive; you may pursue both.

How to Find Attorneys Who Handle Sex Abuse Claims

Choosing the right attorney to handle your case can be difficult. It is not uncommon for firms to advertise that they have handled sexual abuse cases even if they have never prosecuted one before. With all of the recent news stories about priests and school teachers molesting children in California, you are likely to encounter more than one of these imposters who are looking to capitalize on the rush of lawsuits stemming from the AB 218 lookback window.  

Here are a few tips for finding a qualified attorney:

• Don’t hire a personal injury attorney. The bulk of their cases are often car accidents and slip-and-falls. These are very different from sexual assault cases in terms of liability, damages, investigation, and evidence. Find a specialized law firm.
• Do your research. Anyone can pay for a fancy website, but that doesn’t mean they have the experience to back their claims. Research the outcomes of cases they worked. If they don’t have any recent wins, they may not be the right attorney for you. 
• Interview the attorneys before making a decision. Many consultations come at no cost to you. This means that you aren’t required to work with the first firm that hears your case. It’s common for many survivors to “shop around” until they’ve found an attorney they can trust. 
• Ask about the outcome. Many survivors grapple with understanding how these events happened to them and how to prevent similar ones from happening to others. The right attorney can answer these questions and help you seek justice beyond financial compensation. 

What to Expect When You Contact a Sexual Abuse Lawyer

When you call a law firm to inquire about pursuing a sexual abuse lawsuit, they will likely want to schedule an appointment to examine the details and evidence pertaining to your case. You will find out if your situation falls under the state guidelines for civil remedy. The financial status of the abuser will also be evaluated and if there is an expanded scope of liability, third parties may be held legally responsible for paying a settlement or judgment.

Once you and the legal team agree to pursue the claim, a contract retaining the law firm will require signage. In this agreement, you will see all the legal costs spelled out in clear terms. Oftentimes, you are only responsible for paying a standard legal fee and litigation costs if your chosen representative recovers money on your behalf. There are typically no upfront costs to pursue a lawsuit.

Your lawyer will then investigate your claim to the fullest extent—conducting interviews, taking depositions, subpoenaing documents, speaking with medical providers, and consulting experts. Evidence in these cases can include medical records and photos of visible physical injuries, but most often, it involves corroborating circumstantial details by other means.

The strongest evidence in child sexual abuse cases comes in the form of direct testimony, though it can be emotionally taxing for the victim. A specialized attorney will work with the best interview experts in the business to get your story down as vividly and accurately as you remember, without causing you additional emotional harm. Counselors can be tapped to provide additional support during this sensitive time. Some judges will allow testimony to be recorded and played in a courtroom to spare survivors the trauma of recounting their abuse in front of a crowd.

Since the financial compensation is sought after, you may be asked to provide additional documentation to substantiate your losses. Doctors’ bills, therapy bills, transportation records, hospital expenses, specialized services, and wage statements may be requested to determine what a fair settlement offer might look like for your particular case.

“I Never Told Anyone I Was Molested…Until Now”

It’s not too late to seek the justice you deserve. The experienced team at Lewis & Llewellyn can provide you with the resources you need to fully investigate the circumstances of molestation that happened in your past. Uncovering the evidence of past abuse may be painful, but it can also be the missing link in your ability to fully close this chapter of your life and take a path toward 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.

For many, massage therapy is a means to feel relaxed and relieve tension. Unfortunately, over the years, clients have reported being sexually violated by their massage therapist resulting in added stress or tension. 

If you’ve been sexually violated by a massage therapist, you may be able to press criminal charges and seek compensation in civil court for pain and suffering.  

Reports of Sexual Assault by Massage Therapists 

Over the past decade, a number of massage parlors in California have been accused of negligently hiring and supervising employees, ignoring the known risk of sexual assault by allowing them to remain employed or by quietly transferring them to another location.

In a July 2019 lawsuit, four women say they were sexually assaulted at massage parlor locations in Encinitas, Corona, Daly City, and Cotati. In Encinitas, the masseuse touched the client’s breasts after she asked him to avoid them and on another occasion, a masseuse rubbed his genitals on her. In Corona, a woman was fondled and asked for a kiss when she told him to stop. In Daly City, the masseuse touched a woman in both private regions. In Cotati, a woman’s request for a back massage was ignored as the massage therapist proceeded to rub her inner thighs.

Nationwide, at least 180 women have reported sexual assaults at some of the same massage parlor’s 1,200 franchise locations. In many of these incidents, other employees admit they were encouraged not to bring bad publicity to the parlor by management and sometimes witnessed outspoken client-shaming by the abusers. When women complained to management, most were offered free massages—some of them with the perpetrator. In many ways, the massage parlor scandal mirrors how accusations of sexual assault were covered up to save face in USA Gymnastics, the Catholic Church, and even school districts.

Were You Violated by a Massage Therapist in California?

More often than not, sexual assault victims leave the massage parlor feeling confused. “Was I assaulted?” they wonder. “Should I have spoken up or communicated more clearly?” If it feels wrong, it probably is.

Even if you didn’t speak out against the inappropriate touching at the time, a crime may have still occurred. Sexual crimes committed by massage therapists often include:

• Sexual impropriety: You don’t have to be touched for sexual misconduct to occur. Making crude or demeaning comments about your private parts or physical appearance is unacceptable and may form the basis of a legal complaint. Videotaping or photographing a massage without consent and non-consensual flirting are other types of sexual impropriety.
• Sexual transgression: Inappropriate physical contact that is not overtly sexual can be a gray area. For instance, there are places on the body—such as the upper thigh or the areas surrounding the breasts—that feel intimate to a client. Massage therapists should not massage these regions without first obtaining affirmative consent. Clients should remain covered by a sheet in any area that is not being massaged.
• Sexual violation: Overt physical sexual abuse may include: touching a client’s private areas during massage therapy; the masseuse exposing their genitals; touching themselves; or more explicit forms of sexual assault.

It is your right to have privacy dressing and undressing, to dictate which articles of clothing stay on and which body parts you don’t want touched, and to end the massage if you feel uncomfortable at any time. If you report the unfavorable experience to management, they should have some type of internal protocol for handling complaints. Employees who violate the law should be suspended and terminated if found guilty, with credentials stripped by the California Massage Therapy Council (CMTC).

What to Do if You Were Sexually Violated by a Massage Therapist

Contact the police to file a report. You may elect not to speak with the massage parlor staff directly, but to allow the police to thoroughly investigate your allegations. Notifying the police right away can provide an important piece of evidence to substantiate your claim.

Seek immediate medical attention. If you have been physically touched in a forcible way, a forensic medical examination that looks for traces of hair, blood, fluids, fingerprints, tissue tearing, and bruising can provide vital evidence that an assault took place.

Ask to press criminal charges against the perpetrator. If they find enough credible evidence, the police will ask if you wish to press charges. If you agree, they will forward your case to the local district attorney’s office. There, the D.A. may decide to pursue a case of the state against the perpetrator. The ultimate goal is to determine the guilt or innocence of the accused and to punish wrongdoing. The massage therapist could face probation, steep fines payable to the state, jail time, a stripping of professional credentials, and sex offender registration if convicted.

Contact a lawyer to file a civil lawsuit against the massage parlor. Civil court is another way to seek redress. When seeking civil litigation, plaintiffs may be awarded compensation for personal damages suffered as a result of the assault; this includes emotional pain and suffering. In addition to suing the individual massage therapist, you can also hold the massage parlor employer liable for negligence or enabling the assault.

How to Prove Massage Parlor Negligence

Pursuing the massage therapist directly may yield less than a full recovery for personal injury as the individual may lack the money to pay for the damages caused. Therefore, it is customary for civil lawyers to include the insured employer in the claim.

Massage parlors are responsible for conducting background checks prior to hiring; training and supervising, and terminating known criminals in their ranks. Some companies have been accused of keeping sex offenders despite complaints or quietly terminating employees without reporting their offenses, allowing them to target patrons elsewhere.  

Quite commonly, massage parlor operators will claim ignorance of their employee’s actions. However, California courts apply a reasonableness standard that holds massage parlors liable “if a reasonable person should have known” about the egregious conduct of the employee. If the employer was notified, it is reasonable to assume they would investigate the claim and take appropriate action to protect their clients from harm. 

Sometimes a case can fall flat in criminal court but prevail in a civil proceeding. In civil court, the judge and jury must only believe that your claim is “more likely than not” to have happened, rather than the “beyond a reasonable doubt” standard of criminal court. In one 2013 case, a female massage therapist was assaulted by a coworker. Though the Riverside County Sheriff’s Department said the man “was not being truthful about the incident,” they lacked sufficient evidence to convict. Regardless, the therapist was suspended and eventually fired. The victim was offered a settlement for an undisclosed sum in a separate civil action four years later.

Work With Experienced California Sexual Assault Attorneys

If you were sexually violated by a massage therapist, the experienced sexual assault attorneys at Lewis & Llewellyn will stop at nothing until you get the justice you deserve. Our team of legal experts isn’t afraid to go up against large companies such as those owning multiple massage parlor locations across the United States. These large organizations are not above the law. If they’ve aided the sexual assault of clients in any way, the law allows for them to be held liable in civil court. 

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’s not always possible to foresee sexual violence, especially when the person who committed the act was known and trusted. According to The National Intimate Partner and Sexual Violence Survey, intimate partner sexual violence is widespread. The latest data found that one in four women and one in nine men are the victims of intimate partner sexual violence. Intimate partner violence accounts for 15% of all violent crime. 

It’s important to know that while you are never responsible for others’ wrongdoings against you, there are measures you can take to learn how to protect yourself from sexual violence. One of the first ways to protect yourself is to recognize the warning signs. 

Warning Signs of Intimate Partner Sexual Violence

It can be hard to know if your relationship is headed down a path of violence, but oftentimes there are early warning signs. You may be in a sexually abusive relationship if your partner: 

• physically harms you
• threatens physical harm if you refuse to comply with a request
• pressures you into having sex
• attempts to isolate you from friends and family
• vents in a jealous way if you spend time with others

Many abusers are manipulators who exhibit signs of narcissism and chauvinism. Their tactics may include lying, gaslighting, and shaming. Sexual abusers often try to persuade victims to blame themselves for their violent behavior. They may defend their own behavior, criticize the victim, and minimize their actions to imply it “wasn’t that bad” or is something the victim should “get over.” At times, abusers can seem over-the-top caring or sentimental, but it may be part of their cycle of controlling behavior, designed to force you to stay in a violent relationship.

If you have experienced any of these scenarios, you should seek help as soon as you can. The sooner you report the abuse, the better chance you have at protecting yourself from future acts of sexual violence.

Understand Your Rights in a Relationship 

When you spend a lot of time with someone, you may start to lose sight of what is normal outside the context of your relationship. Victims of intimate partner sexual violence are often led to believe that they owe the perpetrator a certain duty; brought on the sexual violence; or that there is nothing wrong with the needs of their partners—none of these beliefs are true.

In a relationship, you have the right to:

• communicate your feelings, your needs, and your reservations in a relationship—without guilt or shame.
• be asked for affirmative consent, which should be explicitly agreed upon, not assumed due to a manner of dressing, past encounters, or body language. The message is not that “no means no,” but that “yes means yes.”
• deny or revoke consent—whether before or during a sexual encounter. You always have a choice as to whether or not you’d like to participate in sexual activity. This choice must always be respected, in the eyes of the law.
• maintain boundaries within your relationship so both parties feel comfortable. 
• freedom from obligation—meaning that one sexual favor does not prompt another in return. You do not “owe” a partner anything. 
• have your voice heard, your preferences cared for, and your feelings respected. You should never be shamed for your orientation or sexuality. 
• be treated with respect—which means you should not be coerced into performing acts you feel are degrading or meant to strip away your power. 
• walk away from the relationship and seek an alternate arrangement that is healthy, respectful, and loving.

It is not acceptable that your partner respects your rights “most” of the time, “some” of the time, or under a certain set of circumstances. A healthy relationship allows for open communication, compassion, and respect for boundaries at all times, without exception.  

 Where to Find Help for Domestic Sexual Violence

If you are in immediate danger, you should call the police. If you’re looking for confidential, nonjudgmental, and supportive help outside of law enforcement, it’s available right here in San Francisco.

• Call the National Assault Hotline at (800) 656-HOPE (4673) or chat online.
• Call the National Domestic Violence Hotline at (800) 799-SAFE(7233) or chat online. 
• Contact San Francisco Women Against Rape at (415) 861-2024 or online. 
• Reach out to Community Overcoming Relationship Abuse at 800-300-1080. 
• Call the Cooperative Restraining Order Clinic at (415) 255-0165 or visit online. 
• Contact La Casa de las Madres, St. Vincent de Paul, or Asian Women’s Shelter for shelter. 
• Contact Hamilton Families for food, housing, child care, and financial assistance. 
• Volunteer, join a support group, or participate in advocacy with Rape Trauma Services.

If you are not in immediate danger, empower yourself with a personal safety strategy. You may need to change your routine, prepare a support network, and fabricate a plausible reason to leave the house for your own protection at some point in the future.

How to Protect Yourself From Sexual Violence

If you’re wondering how to protect yourself from sexual violence, a sexual abuse attorney can be an invaluable resource in your search for protection and healing. An attorney will understand that the violence you’ve suffered within your relationship can be a sensitive topic and you may not feel comfortable speaking to anyone about it. But an experienced attorney will know just how to work with you so that you’re comfortable.

Lewis & Llewellyn—a boutique San Francisco law firm specializing in sexual assault and abuse—has helped many clients seek justice and compensation. We are thorough investigators, resourceful community liaisons, and fierce survivor advocates. We work with local law enforcement to ensure your privacy and protection throughout the proceedings. We can also help you find temporary housing, financial assistance, and medical treatment.

Ultimately, our goal is to hold wrongdoers financially and civilly accountable for what they have done. Maybe you feel bad about holding the perpetrator liable for what has happened, you fear the repercussions of reporting the crime, or you aren’t sure whether you want to go through with the process of filing a lawsuit. This is all understandable. No one wants hardship, but you owe it to yourself to not deny the reality of what has happened. 

Many victims endure PTSD, anxiety, depression, and other adverse side effects of sexual violence. The emotional trauma you have suffered could affect you years later and limit your ability to work, sustain a healthy relationship, or function day-to-day, so it is important that you take the time now to collect all the resources you need to provide for your treatment and care in the years to come.

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 Child Abuse and Neglect Reporting Act (CANRA) passed in California in 1980, ushering in a new era of accountability and child sexual abuse prevention. The list of mandated reporters includes teachers, school administrators, daycare workers, camp counselors, foster parents, social workers, firefighters, medical professionals, clergy, and many others legally obligated to protect children in their care. These mandatory reporters are tasked with responding to disclosures of sexual violence in a way that prevents further harm. Failure to do so may result in a fine or criminal punishment.

Responding to Disclosures of Sexual Violence: The Proper Way

When a child tells a mandated reporter about sexual violence, they are legally required to take action to protect that child to the best of their ability. Their legal duties include:

• Signing a statement: All employers must have employees sign a written statement that they are aware of their legal reporting duties within four weeks of their start date.
• Undergoing training: Many employers offer training to help employees understand their mandatory reporting obligations. A supervisor must be able to answer any questions workers have about detecting and responding to disclosures of sexual violence.
• Making a verbal report: Immediately—or as soon as possible—mandated reporters must contact the local police department, county welfare department, or county juvenile probation department. Their name is kept strictly confidential, known only to the investigating parties. No evidence or proof is required; all that is needed is a reasonable suspicion that a child is being mistreated. However, if there are visible signs of abuse, reporters may take photographs without parental consent for documentation purposes only.
• Sending a written report: Within 36 hours, mandated reporters must submit a formal written report to the same agency as the verbal report using Form 8572. Partially completed forms are acceptable when the reporter doesn’t know all of the information being requested. 
• Cooperating with the investigation: Mandated reporters may have to provide additional information to investigators at a later date. If the case is determined to be substantiated, a claim may be pursued in civil or criminal court.  

What is a Reasonable Suspicion? 

If you are a mandated reporter, you may be wondering when you should take action if a child hasn’t disclosed any information about mistreatment. A child’s disclosure obviously warrants a report, but you must also remain vigilant of sudden changes in their behavior and observations of dynamics during routine interactions with certain adults. Signs of sexual abuse in children may include:

• sudden trouble walking or sitting
• displays of inappropriate knowledge of sexual acts
• strong efforts to avoid a person without reason
• thoughts that the body is dirty, bad, or shameful

The California Department of Social Services’ Office of Child Abuse Prevention provides online training if you require more information regarding how to comply with the law.

Are Priests Considered Mandated Reporters?

Priests and clergy are technically considered mandated reporters and must report any reasonable suspicions of child abuse or neglect. However, due to the confidentiality of penitential communications, they do not have to report information gathered during confessions.

In 2019, Senate Bill 360—which would’ve ended the right of confessional confidentiality—passed in the California Senate, but was withdrawn from the floor by its author a few days before the vote. Sponsors say the bill is to ensure the protection of the innocent and advocates view this as an opportunity for interfaith unity, but critics worry the law infringes upon religious freedoms and denies the sanctity of confession to priests and churchgoers alike. There’s no word yet on whether the bill will be reintroduced. 

Assembly Bill 218 (AB 218)—which went into effect on January 1, 2020—is expected to bring about a number of new lawsuits against the Catholic Church. The amendment to current law increases the civil lawsuit filing deadline for childhood sexual assault to age 40 and also provides a three-year lookback period where previously expired claims may be revived. In May 2019, California Attorney General Xavier Becerra announced he would investigate all of California’s Roman Catholic dioceses to ensure compliance with mandatory reporting requirements. As of December 2019, the attorney general announced that dioceses in San Francisco, Sacramento, Los Angeles, Fresno, Orange, and San Jose will be subpoenaed for additional records. A similar investigation in Pennsylvania last year identified at least 300 abusers and over 1,000 victims dating back to the 1950s that had not been previously reported to the proper authorities.  

What are the Penalties for Failure to Report?

Mandated reporters may fail to come forward for a myriad of reasons: maybe they don’t want to believe the child’s disclosure, maybe they fear stirring up a scandal, or maybe they want to give the abuser the benefit of the doubt. Sometimes mandated reporters mistakenly believe they are fulfilling their duty by reporting internally, up the chain of command, or by having a word with the accused. Some reporters choose to quietly fire the offender or even transfer them someplace else. Even when the rationale is not intentionally malicious, mandated reporters who remain silent are committing a crime. The law holds anyone working with youth accountable for the welfare of the children in their care.

A mandated reporter who fails to alert authorities to known or suspected child abuse can be ordered to pay a fine of $1,000 and spend up to six months in jail for the misdemeanor. When the abuse leads to grievous bodily harm or death, the punishment increases to a fine of $5,000 and up to one year in jail. Non-reporters and the institutions that employ them may also be sued for damages in civil court. These entities can be held liable for the victim’s medical expenses, pain and suffering, and lost wages. AB 218 allows for treble damages to be awarded to plaintiffs when there is proof of an institutional coverup. 

What to Do if Your Child Was Sexually Assaulted

Many incidents of child sexual assault are never reported, but when they are, parents are among the most common confidants. Sexual predators are often people known or trusted by a child and their family. If your child comes to you about sexual assault, be gentle in your reception; your response matters. Make sure your child knows it is not their fault. Re-establish safety and be prepared to act to keep your child out of harm’s way.

You are not a mandatory reporter under California law (unless you are a foster parent), but you can still seek assistance for your child. We recommend that you contact the Child Abuse, Listening, Interviewing, and Coordination Center to connect with a supportive team that will assist you and your child through the process of making a police report. Eliciting crucial testimony without causing further emotional harm to the child and providing for the family’s emotional needs are among their core competencies. Another excellent resource is the Children’s Interview Center, where they conduct non-acute forensic medical exams, child forensic interviews, and educate parents.  

San Francisco Attorneys Hold Mandatory Reporters Accountable

In addition to going after the perpetrator, you may also sue a number of third-party entities whose failure to abide by CANRA allowed the abuse to take place. Let a passionate and experienced sexual abuse attorney step up and fight for justice, especially if a mandated reporter failed to do so. 

 
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.

Adults who were molested as a child often carry the pain of the abuse they suffered well into adulthood. While many survivors may go on to lead successful lives, there are some who are left dealing with the emotional pain and suffering related to the abuse, affecting employment, relationships, and health. And, just like there are ways to cope with the abuse, there are also ways to seek justice, even if the abuse happened years ago.  

Previously, survivors were required to come forward with claims of sexual abuse within eight years past the age of majority—until age 26. Yet, survivors of childhood sexual abuse don’t always come forward within that timeframe for various reasons. Now, they have a second chance. The passage of Assembly Bill 218 (AB 218) grants survivors more time to seek justice.  

If You Were Molested as a Child, AB 218 Offers Justice

AB 218 amends Sections 340.1 and 1002 of the Code of Civil Procedure and Section 905 of the Government Code relating to childhood sexual assault. These changes and provisions include: 

• A three-year lookback window: Anyone sexually abused as a child may bring a claim in civil court to seek financial restitution. This lookback window lasts for three years and can apply to previously time-barred claims.
• Extended deadlines: Survivors of childhood sexual abuse will have until age 40 to bring their claims in civil court.
• More time for delayed discovery: Individuals over age 40 may still file civil lawsuits within five years of discovering that the harm they suffer is directly related to childhood sexual abuse.
• Broadened notice requirements: A person over 40 may also sue if a person or entity knew, or had reason to know, about misconduct that created a risk of childhood sexual assault by an employee, representative, agent, or volunteer, and the person or entity failed to take reasonable steps to prevent the acts of childhood sexual assault.
• Treble damages: When institutional coverup can be proven, the courts will allow the plaintiff to be awarded up to three times the amount of damages.

In addition to these changes, AB 218 will expand the definition of “childhood sexual abuse” to include instances of “childhood sexual assault.” Also, the six-month filing deadline against public entities (Government Tort Claims Act) will no longer apply to childhood sexual abuse survivors.   

Can Adults Still Press Criminal Charges for Child Molestation?

The passage of Senate Bill 813 lifted the previous ten-year limit for pressing criminal charges for sexual abuse in California. Now, there is no time limit or deadline to press criminal charges for acts of rape, forcible sodomy, and child molestation occurring after the bill went into effect on January 1, 2017. If you were molested before this date, then you have until age 40 to report the crime to the police and request to press charges, which will be handled by the local district attorney’s office. If you are unsure of your deadline, it’s best to contact an attorney who specializes in childhood sexual abuse.   

Experienced Attorneys for Adults Who Were Molested as a Child

It can be difficult to come forward about what has happened, especially if you’ve found that you’ve repressed the memories for so long. If you’ve recently discovered that you were molested as a child or if you’ve recently decided to come forward, an experienced attorney may be able to help.  

At Lewis & Llewellyn, we have a track record of winning cases for adult survivors of childhood sexual abuse. Not only do we fight to win cases on behalf of our clients, but we also make sure they have the support and necessary resources to improve their quality of life. 

We’ve:

• helped clients locate the best counseling and therapy services in the Bay Area;
• referred patients to hospitals where forensic medical exams (rape kits) are conducted;
• put children in contact with sensitive interviewers who elicit testimony without harm;
• worked with California district attorneys to aid criminal investigations; and
• informed clients about financial aid programs available to victims of crime.

Sometimes all one needs is an advocate who will listen and affirm. It’s a difficult and bold step forward to report a crime you’ve been carrying around for years, but we can help ease the burden. 

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 recent spotlight on childhood sexual abuse has largely centered on the Catholic Church. This year, the Catholic Church spent more than $300 million on sex abuse allegation-related costs and it is estimated they will spend another $4 billion by the end of 2020.

Though it hasn’t been as widely publicized, the Jehovah’s Witnesses, a Christian sect with more than 8.5 million members worldwide, has been similarly accused of covering up sexual abuse. A series of local court cases have begun to crack open a document detailing more than two decades’ worth of abuse allegations that were never shared with law enforcement, as required by law. Hoping to maintain the congregational code of silence, the Watchtower has quietly paid out more than $100 million over the past 20 years.  

The upcoming three-year lookback window provided by the passage of Assembly Bill 218 (AB 218) will give Californian sexual abuse survivors with previously expired claims another opportunity to seek justice against Jehovah’s Witnesses elders.     

Sexual Abuse Among California’s Jehovah’s Witnesses

A number of stories reveal allegations of sexual abuse in California Jehovah’s Witness congregations:

• On August 15, 2019, a 26-year-old Los Angeles man filed a lawsuit against the San Dimas Spanish Congregation of Jehovah’s Witnesses, the Watchtower Bible and Tract Society of New York Inc., the Christian Congregation of Jehovah’s Witnesses Inc., and the Governing Body of Jehovah’s Witnesses. His lawsuit detailed abuse by an elder, “Humberto,” that started at age six and persisted from 1999-2001. The plaintiff was allegedly told he “would not be accepted into paradise” if he did not touch the elder and allow the elder to touch him at bible studies, during assemblies, and while out in field service. The boy’s parents reported the abuse to church elders in 2001, but the police were never notified, as required by California’s mandatory reporter law.
• On October 7, 2019, the U.S. Supreme Court rejected an appeal by the Watchtower to win a judicial review of a 2013 case in which the Riverside Superior Court of California awarded plaintiff “JW” a judgment totaling more than $4 million. The plaintiff in this case alleged sexual molestation in 2006 by a religious leader who was convicted in criminal court of “lewd and lascivious acts on a child under age 14” for two other victims and sentenced to 45 years in prison. A “special blue envelope” letter dated March 14, 1997, notified all elders the organization was: aware of molestations, compiling a database of pedophiles in leadership positions, and expected confidentiality from its members. Infuriated by the organization’s refusal to cooperate, the judge tacked on an additional interest penalty of 10% per year because they refused to obey court orders by producing files of known child molesters within their ranks. This order was upheld upon appeal. 
• In 2012, a California jury awarded $28 million to a 33-year-old Fremont woman. The verdict represented the largest ever against a religious organization. On appeal, the award was later reduced to $3 million. According to the lawsuit, instead of taking her to conduct Saturday morning field service, Elder Jonathan Kendrick would molest the 9-to-11-year-old girl in his home. Years later, after the woman had left the congregation, she discovered her abuser’s name on the federal sex-offender registry. When she notified elders, they allegedly told her about the “two-witness rule,” rooted in Deuteronomy 19:15, which states: “No single witness may convict another for any error or any sin that he may commit” without two credible eyewitnesses who are willing to corroborate the accusation. When they refused to cooperate, she filed a lawsuit against them and won. During depositions, the elders admitted they’d long known Kendrick had a problem with child molestation—even before pairing the girl with him for door-to-door ministry.
• Another 2012 lawsuit resulted in a $13.5 million verdict for the 1986 molestation of a 7-year-old boy by mentor Gonzalo Campos in La Jolla. When confronted by the boy’s mother, the elders promised to handle the situation but allowed Campos to rise to the status of an elder. He was kicked out of the congregation after a victim reported abuse in 1995, but was reinstated in 2000. In 2010, Campos fled to Mexico and confessed during a deposition that he had molested the plaintiff and at least 17 other children. Six men and one woman settled for undisclosed sums out of court. An appellate court overturned the initial ruling in favor of a $4,000-per-day penalty instead. The organization racked up $2 million in fines before handing over the documents and settling for an undisclosed sum in February 2018.

Jehovah’s Witness Sex Abuse Allegations Could Reach Tens of Thousands

Exactly how many alleged pedophiles are named in the database has been the source of widespread speculation. In 2002, a former elder said there were 23,720 abusers in the ranks. During Gonzalo Campos’ trial, a Watchtower attorney estimated there had been at least 775 “special blue envelopes” in circulation from 1997 to 2001 but had no idea how many had been shared since then.

In 2015, Australian investigators revealed that the elders failed to report more than 1,000 cases of child abuse. The Church dismissed 401 members following internal abuse investigations but reinstated more than half. Their “secret sexual deviant database” represented 1.5 percent of the country’s Jehovah’s Witnesses. Considering there are 1.2 million members in the U.S., a similar outcome would suggest there are roughly 18,000 people in the database.     

AB 218 Allows Victims to Seek Justice 

The passage of AB 218 allows for:  

• Extended civil lawsuit deadlines: Prior to January 1, 2020, victims of childhood sexual abuse had until age 26 to come forward with their allegations in civil lawsuits and pursue compensation for their pain and suffering. However, with the passage of AB 218, survivors have until age 40 to file civil lawsuits against child molesters and the institutions that shielded them.
• Expired claims to be revisited: The law also permitted a three-year lookback window that allows childhood sexual abuse victims with previously expired claims to file a civil lawsuit.
• Treble damages to be awarded: Treble damages are specifically allowed when plaintiffs can prove the institutions involved engage in coverup activity. “Treble damages” meaning the plaintiff’s recovery award amount can be multiplied by three.  

New York recently permitted a similar lookback window with the Child Victims Act. They have already seen the Watchtower named as a defendant in a number of lawsuits. 

Help for Victims of Jehovah’s Witnesses Sexual Abuse Cover-up

If you’re wondering what to do following the Jehovah’s Witnesses organizational coverup of the sexual abuse you suffered, a specialized attorney can help. An attorney who specializes in sexual abuse cases can 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. 

The attorneys at Lewis & Llewellyn are not intimidated by large organizations such as the Jehovah’s Witness organization. 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, described our firm “a giant slayer.” 

 
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.

California is one of 15 states enacting legislation making it easier to sue for sexual assault pain and suffering, even if the incidents took place in the victim’s childhood. The recent passage of Assembly Bill 218 (AB 218) extends the deadlines for filing a civil lawsuit for childhood sexual assault. If you believe the emotional pain and suffering you’ve endured is related to past sexual assault, you may be able to file a civil lawsuit to recover compensation.    

Types of Pain and Suffering

“Pain and suffering” is a category of non-economic damages defined as “the physical and emotional stress caused from an injury,” including aches and pains, temporary and permanent limitations on activity, depression, potential shortening of life, scarring, and distress. Plaintiffs may seek recourse for past, present, and future pain and suffering.    

In California, sexual abuse survivors may pursue personal damages for:

• physical pain and scarring
• emotional pain and suffering
• emotional distress (shock, grief, humiliation, anguish, and torment)
• anxiety
• depression
• fears, worries, and phobias
• Post-Traumatic Stress Disorder (PTSD)
• insomnia
• inconvenience
• losses of companionship and consortium
• inability to engage in pleasurable activities
• loss of enjoyment in life

To prove pain and suffering in civil court, the judge and jury must believe your version of events is at least 51% likely to be true based on “a preponderance of the evidence.” Your legal team will aim to prove that your distress is not fleeting, that it directly relates to the defendant’s actions, and that the distress has had a significant impact on your daily ability to function.

You don’t need the presence of physical ailments, nor a history of psychological counseling, to obtain pain and suffering damages, but these factors can help strengthen your claim. It is recommended that you keep a diary of your thoughts, feelings, and symptoms to aid in substantiating the harm that you suffer. The combination of expert witnesses and personal vignettes proves very powerful in court.

Emotional Pain Sometimes Manifests Later

Two-thirds of sexual abuse survivors bear no physical injuries. Most people spend decades in self-management mode before their symptoms become unbearable. As the WINGS Foundation explains: “Very often, an event in a survivor’s life triggers memories of childhood sexual abuse, where a new understanding of the extensive damage it has done to them can emerge from their unconscious to their conscious reality.” Common triggers include breakups, divorce, the birth of a child, disturbing news stories, encountering sensory input that correlates with the original abuse, or nightmares that force survivors to relive the horror.

Research provides quantifiable data on the long-term effects of sexual trauma on the brain. During the assault, the “rational” prefrontal cortex completely shuts down. Experiences of fear, confusion, loss of control, and physical pain are processed by the emotional centers of the brain, creating hypersensitivity to pain. “When triggered, they can’t reason themselves out of it,” scientists explain. The brain responds with a primitive emotional reaction that can’t be controlled. The reactions vary from person to person, but the effects of abuse include a strong sense of guilt, blame, and shame that makes it difficult to function.

PTSD is the label most commonly ascribed to the myriad of symptoms a sexual assault survivor experiences. Symptoms may include hypervigilance, sleep disturbances, generalized anxiety, and poor concentration, numbness, lack of responsiveness, avoidance, nightmares, flashbacks, and intrusive thoughts. The good news is that therapy for sexual abuse survivors has shown beneficial in easing both mental and physical pain.  

It’s Not Too Late to Seek Compensation

Whether it’s been years or decades, you can be compensated for emotional pain and suffering related to past sexual assault. Recent legislation has extended the deadlines for recovering compensation after being sexually assaulted.

• Reporting Timelines: California law previously allowed childhood sexual abuse survivors until age 26 to file a civil lawsuit. Thanks to AB 218, survivors now have until age 40. 
• Delayed Discovery: Since 1990, California has allowed a rule of “delayed discovery” by acknowledging that certain effects of abuse or personal injury do not manifest until years later. Prior to January 2020, California allowed individuals up to three years from the discovery of harm to file suit. As of January 2020, California allows up to five years from the discovery of harm to pursue justice.
• Lookback Windows: AB 218 also established a three-year lookback window that allows survivors with previously expired claims to re-file in civil court. 

How Much Can You Get for Sexual Assault Pain and Suffering?

There is no particular formula for determining pain and suffering in California, but many factors come into play, such as economic losses, severity of injury, the blameworthiness of the defendant(s), the strength of evidence, the skill of the legal team, and the amount of money the defense is willing to spend.

Whether or not an institution engaged in coverup activities is another important factor that has come into play recently with the passage of AB 218, which allows for treble damages. This means survivors are entitled to three times the normal amount of damages if a coverup can be proven. 

San Francisco Sexual Assault Attorneys Can Help 

With the many limitations and deadlines, understanding exactly when you can sue for sexual assault pain and suffering can be confusing. You may not have been ready to come forward in the past but legislation in California has created an opportunity should you decided to seek justice against your abuser. 

If you decide to file a civil lawsuit, it’s best to work with an attorney who specializes in sexual assault cases and not someone who claims to deal with all types of personal injury. The experienced sexual assault attorneys at Lewis & Llewellyn know exactly how to handle these unique cases and understand the associated laws.  

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.

When parents send their children to school, they trust that the administrators and staff will uphold their duty of care for students. Unfortunately, that isn’t always true when incidents of teacher sexual misconduct occur. In 2018, the California Commission on Teacher Credentialing received 5,895 teacher misconduct cases; 331 of those cases were child sex-related.  

There is no such thing as an “acceptable” teacher-student sexual relationship. In the state of California, individuals aged 17 or younger in California are not legally able to consent to sexual activity, and such activity may result in prosecution for statutory rape.

If your child was a victim of teacher sexual misconduct that led to sexual assault or abuse, you may be able to hold the school district liable in civil court for their role in enabling the abuse.  

Mandated Duty of Care

California’s mandated reporter law, also known as the Child Abuse and Neglect Reporting Act (CANRA) is outlined in Penal Code Sec. 11165.7. State law requires designated mandated reporters—such as teachers and school administrators—to report suspected or known abuse, neglect, or exploitation of a child under age 18. Reporters may view the abuse as first-hand eyewitnesses or they may simply have a reasonable suspicion based upon facts and observations.

In addition to mandatory reporting, California school districts owe a responsibility to parents and students to:

• Hire Responsibly: Vet all employees with criminal background checks before hiring.
• Inform: School employees must understand their mandatory reporter responsibilities. 
• Train: Teachers must receive child abuse training to identify grooming behaviors. 
• Supervise: Schools should provide oversight of all employees and limit “alone” time. 
• Investigate: Sexual abuse allegations must be investigated, with teachers suspended. 
• Cooperate: Schools must cooperate with state investigations into sexual misconduct. 
• Discipline: Teachers found guilty of committing crimes must be dismissed from their positions.

Failure to make required reports can result in a misdemeanor crime punishable by a fine of $1,000 and up to six months in jail. When the abuse results in grievous bodily harm or death, the punishment increases to a fine of $5,000 and up to one year in jail. Above and beyond the criminal penalties, non-reporters may also be sued for damages in civil court. Mandatory reporters and their employers can be held liable for the victim’s medical expenses, emotional pain and suffering, and lost wages or future earning capacity. 

Additional Legislation Aims to Stop Schools From “Passing the Trash”

School officials are bound to protect their students, but some districts stand accused of “passing the trash” by allowing sexual predators to resign quietly and seek employment elsewhere rather than alert the proper authorities. 

The following laws are designed to mitigate this practice of passing the trash:

• Title IX (1972) grants every child the right to pursue an education free from sexual discrimination and sexual harassment. Schools must have procedures in place to protect students from sexual predation.
• Every Student Succeeds Act (2015) requires all states and school districts applying for federal funds to have policies in place that prohibit known child molesters from seeking employment elsewhere. 
• Assembly Bill 218 (January 1, 2020), an amendment of Sections 340.1 and 1002 of the Code of Civil Procedure and Section 905 of the Government Code, deters passing the trash by allowing survivors up to age 40 or five years of the discovery of harm to pursue civil litigation. There is also a three-year lookback window allowing anyone with a claim of child sexual abuse to seek damages, regardless of when the abuse took place. It also eliminates the six-month statute of limitations for filing government claims.

Filing a civil lawsuit against a school district is one way survivors can help put an end to “passing the trash.”

How to Sue for Teacher Sexual Misconduct

If you or a loved one suffered sexual assault or abuse as a result of teacher sexual misconduct, you have the right to seek justice—even if the incident happened years ago. By filing a civil lawsuit, survivors can build a case against the individual perpetrator as well as any third-party entity that enabled the abuse—such as a school district—and mandatory reporters who failed in their duties.  

In cases involving childhood sexual assault, it’s always best to work with a specialized attorney. At Lewis & Llewellyn, we understand how difficult it can be to discuss the details of repeated school sexual abuse, especially at the hands of a trusted teacher. When you work with us, you receive the utmost compassion and care. We not only help you file paperwork, but also investigate and construct a strong legal argument. We also make sure you are taken care of with the best possible medical care providers and support networks. 

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.

Israel Trevino worked at the Central California Women’s Facility as a correctional officer for a decade before he was fired in 2018 for groping and sexually harassing inmates. His case was never remanded to the District Attorney’s office for criminal charges, but the California Department of Corrections and Rehabilitation (CDCR) launched an internal investigation that revealed the truth about sexual abuse in prison.

It was discovered that six correctional officers had been fired from the facility for groping, oral sex, intercourse, and sexual exploitation of inmates. Inmates say they sometimes “went along” with sexual advances from prison guards as “a survival technique.” As one inmate explained to KQED News, incarcerated women rely on correctional officers for access to phone calls, time out of their cells, tampons, and clean laundry. They can also face extreme sanctions and longer prison sentences if an officer decides to write them up.

Whether you are incarcerated or not, you are entitled to freedom from sexual violence. The Eighth Amendment provides all Americans with the right to be free from “cruel and unusual punishment.” This includes a right not to be sexually abused by prison staff. The following article describes the issue of sexual abuse in prisons in California, federal and state laws designed to protect inmates, what to do if you’ve been victimized, and where to turn for further advocacy efforts. 

#MeToo Behind Bars: Sexual Abuse in California State Prisons

The “Me Too Behind Bars” movement—headed by the California Coalition for Women Prisoners and the Young Women’s Freedom Center—seeks to expose the prevalence of sexual abuse in prison. In 2015, correctional administrators reported 24,661 allegations of sexual victimization in prisons, jails, and other adult correctional facilities. Of those allegations, more than half (58%) involved sexual victimization by staff toward inmates, according to the Bureau of Justice Statistics.

Meanwhile, state prison officials say they have enforced a zero-tolerance policy for sexual misconduct. In compliance with the federal Prison Rape Elimination Act of 2003 (PREA), they investigate and track all allegations of sexual assault and harassment by prison staff. In 2018, 337 staff-on-inmate incidents were reported in California prisons—only 11 cases (3%) were substantiated.

The Prison Law Office has monitored inmate conditions for the past 36 years, as part of a federal class action settlement. In 2016, a random interview sample of 80 women found that nearly all had experienced sexual abuse or harassment during their sentences. Behaviors ranged from cat-calling and making misogynist references to women, providing women with alcohol so they would strip for officers, and demoralizing pat-downs. They concluded there was a lack of responsibility, a culture of retaliation, a failure to protect vulnerable prisoners, and that the staff both incited violence among prisoners and routinely employed excessive physical force themselves.

Reformers are pushing to restrict male guard access to areas where women prisoners sleep, change, and bathe. They are calling for more female prison guards to be hired to supervise in these areas, as well as a change in culture.  

Laws Protecting Prisoners

Title VII of the Civil Rights Act of 1964 prohibits discrimination of any form based on race, color, religion, sex, and national origin; under this definition, sexual harassment is a crime. Federally, the Fourth Amendment gives you a right to privacy and the Eighth Amendment upholds a right to freedom from cruel and unusual punishment.

Prison staff members can be charged with unconstitutional conduct when acting outside of the duties of their job. Casual and infrequent observation of nude prisoners, including routine strip searches or pat-downs, may be deemed justifiable and within the scope of employment but not when it is so offensive to human dignity it causes physical or psychological harm.

The Eighth Amendment also outlines a prison guard’s duty to protect those in their care from prisoner-on-prisoner sexual abuse. Even when guard actions are not deemed “in violation of the constitution,” prisoners may sue under state tort law for sexual assault, the intentional infliction of emotional distress through sexual harassment, and negligence in failing to protect prisoners from foreseeable sexual abuse by other prisoners.

Under the PREA:

• It is the corrections agency’s responsibility to protect prisoners from sexual abuse. 
• Corrections facilities must have certain policies and procedures in place to do so. 
• The CDCR will be audited regularly and risks losing federal funding for failure to comply.

The Sexual Abuse in Detention Elimination Act of 2005 (SADEA) provides for policies, instruction, counseling, and investigation of sexual abuse. In other words, administrators must demonstrate a commitment to protect prisoners from sexual violence and to thoroughly investigate any reports of sex abuse in California’s prisons and juvenile facilities.

The CDCR outlines sexual misconduct as:

• engaging in sexual behavior, sexual acts, sexual contact, or invasion of privacy
• making disrespectful, overly familiar, or sexually threatening comments
• claiming that a staff member “consented” to sexual activity
• offering benefits in exchange for sexual favors
• making threats for refusal to engage in sexual acts
• conducting a nude, non-emergency body search on a member of the opposite sex

By CDCR regulations, prisoners shall be allowed to shower, perform bodily functions, and change their clothing without nonmedical staff of the opposite sex viewing their private parts. Staff members are to announce their presence when entering a housing unit at the beginning of a shift or during personnel changes. 

California’s criminal code contains a number of laws pertaining to sexual battery (PC 234.4), sexual assault (PC 243.3), rape (PC 261), and lewd and lascivious acts, including oral copulation by force (PC 288). It’s worth noting there is no such thing as a “consensual activity” defense in prisoner-guard relations. California broadly defines consent in PC 261.6 as “positive cooperation in act or attitude pursuant to an exercise of free will.” A person must “act freely and voluntarily, and have knowledge of the nature of the act.”

Under state and federal statutes, inmates can’t consent to sexual relations with prison guards due to the extreme power imbalance. As a 2016 Supreme Court ruling explained: “The control that a prison guard exerts over an inmate extends into virtually every facet of the inmate’s life… The prison guard-inmate relationship is an irreducibly unpleasant one, oriented around captivity and control.”

What To Do If You’ve Experienced Sexual Abuse in Prison

Seek immediate medical attention and mental health care. To maintain vital physical evidence, avoid showering, using the restroom, or consuming any liquids until a forensic medical examination has been performed. Provide the investigators with clothing or any items that may have come in contact with the perpetrator. It’s your right to have a family member, friend, or advocate present at the time of the examination. Depending on the nature of the conduct, you may need additional tests for pregnancy or the transmission of sexually transmitted diseases. You have the right to medical treatment, mental health counseling, and protective housing placement. 

File an administrative appeal using CDCR Form 602. If prison officials don’t adequately respond to your complaints (including providing you with an exam, mental health care, separating you from the perpetrator, or agreeing to investigate), you can file an appeal. You can request a free manual from the Prison Law Office that explains more about this method of getting prison officials to take action. 

Press criminal charges. Reporting your abuse to police officers and the local District Attorney’s office can lead to the pursuit of criminal charges. You will need to provide as much detail as possible into the dates, times, places, and a description of events. You may choose to keep your identity confidential and bring in eyewitnesses for questioning to corroborate your story. Following the investigation, confirmation of abuse will warrant the immediate dismissal of the staff member. Prosecution can lead to jail time, fines payable to the state, community service, and probation.

Contact an ombudsman. You may also find it helpful to speak with the Office of the Inspector General (OIG), which investigates problems in the state correctional system. More specifically, there is an Office of the Sexual Abuse in Detention Elimination Ombudsperson who handles complaints of sexual abuse. Writing a confidential letter to this person can lead to a prison investigation and prisoner interviews that could help your case.

OIG Contact Information:  

Office of the Inspector General, PREA Ombudsperson

1011 Old Placerville Road, Suite 110

Sacramento, CA 95827

(800) 700-5952

www.oig.ca.gov

Contact a civil attorney specializing in sexual assault. You need someone on the outside who has the resources to help. Filing a civil lawsuit is a way to pursue financial compensation for the physical and psychological trauma you have suffered. It may also be used to hold all parties accountable for the roles they played in what happened to you.

The expanded scope of liability is one of the clear advantages of choosing to contact a civil sexual abuse lawyer and seeking justice through the civil court system. Not only can you sue the correctional officer or staff member who hurt you, but you can also sue the prison itself and the State of California for sexual abuse while you were incarcerated. The passage of Assembly Bill 218 eliminates the claim form requirements for suing government entities in California.   

Bay Area Attorneys Can Help Victims of Sexual Abuse in Prison

No matter what landed you in prison, you are entitled to the same rights to privacy and freedom from cruel and unusual punishment as everyone else. If you or someone you know has been victimized by sexual abuse in prison, the attorneys at Lewis & Llewellyn may be able to help. 

 
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.