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When someone seeks medical attention after being sexually assaulted, it is recommended that they undergo a sexual assault forensic exam to preserve any DNA evidence that can be useful in reporting the incident. Rape victims aren’t required to report the incident to have an exam, but the process gives them the chance to safely store evidence in a collection kit, also known as a rape kit, should they decide to report at a later time. 

A processed rape kit could be a powerful tool in bringing a perpetrator of rape and sexual assault to justice, should a victim wish to pursue. Unfortunately, there is a nationwide epidemic of untested rape kits in America hindering the pursuit of justice. Organizations across the country like California’s Joyful Heart Foundation and Natasha’s Justice Project are backing legislation similar to California Senate Bill 22 that aims to end the backlog of rape kits and bring justice to victims.    

The Backlog of Unprocessed Rape Kits in the United States         

The backlog of unprocessed rape kits is not just an issue in California; it’s a national problem. California Senator Kamala Harris has stated that America’s 225,000 untested rape kits could be eliminated at an annual cost of about $100 million. “The federal government can and should prioritize justice for survivors of sexual abuse, assault, and rape,” she added.

The cost of processing the kits pales in comparison to the estimated losses associated with sexual violence in California. The total cost of sexual violence in California has been estimated at $140 billion, including over $9 million in tangible costs like medical bills, mental health care, investigation, treatment, and victim services, as well as the intangible costs of lost productivity and lost quality of life. In the Journal of Forensic Sciences, the backlog of unprocessed rape kits was analyzed and it was found that every dollar the police spend on testing returns $82 from averted sex crimes. According to the California Coalition Against Sexual Assault, the state saves $163,800 for every adult rape and $227,700 for every child rape prevented.  

California Tackles Unprocessed Rape Kit Problem

In 2011, the LAPD responded to pressure from advocacy groups to clear out a decades-old backlog of more than 6,000 kits; the effort resulted in 300 new arrests. More recently, the 2018 state budget included $1 million to conduct an inventory of all the backlogged rape kits in the state and allocated an additional $6.5 million to test kits sitting in storage rooms. 

According to the SF Chronicle, 1,900 Alameda County kits dating back to 2014 have all been tested under an effort led by District Attorney Nancy O’Malley. Out of those, 357 DNA profiles were entered into the Combined DNA Index System (CODIS) database, resulting in at least two convictions and 128 “hits,” meaning that the DNA entered matched evidence in an unsolved case or linked to a previously solved case. Humboldt County also cleared its backlog of 56 kits—some dating back to 2003. 

As of March 2019, Contra Costa County had tested the 1,246 kits in its backlog, dating from 1978 through 2016. Authorities entered 182 DNA profiles into the CODIS system. As a result, they obtained 122 hits. They received another 51 offender hits, where the DNA profile from the rape kit matched the DNA profile obtained from a convicted offender. Eight cold cases were re-opened for further review.  

San Diego’s 1,700 “historic” kits—some dating back 30 years—are being sent out to a private lab for analysis after a Voice of San Diego investigation revealed inadequacies of the in-house testing system. As of September 2019, nearly 1,350 kits had been tested. 

Police in Riverside, California were able to use revived rape kit test results to arrest a suspect in the unsolved 1996 rape of a teenage girl asleep on her couch.

Though the state is making progress, approximately 13,615 rape kits collected in California still remain untested. It is the hope that new legislation will increase funding and the pressure on police departments to act expediently and efficiently.

California Senate Bill 22 Mandates Prompt Rape Kit Testing

On October 8, 2019, California Governor Gavin Newsom signed California Senate Bill 22 (SB-22) into law, requiring law enforcement agencies to submit all newly collected rape kits to forensic labs within 20 days, and forensic labs to test those kits within 120 days. The legislation, authored by Senator Connie M. Leyva (D-Chino), passed unanimously in the Senate and House Assembly without a single “no” vote. The bill allocates $2 million to help local law enforcement agencies comply with the reforms.

While similar legislation was enacted in 2014, the language merely encouraged authorities to process the kits in a timely manner. With the strengthening of the statute, authorities are mandated to comply with these best practices and must explain any discrepancies to government overseers.

What Is the Potential Impact of Processing Old Rape Kits?

Rape kits are not only used for convictions, but for exonerating the innocent and for linking DNA from different crime scenes together to create investigative leads. It is believed roughly half of rapists are serial felons, and 20 percent of them have five or more convictions on their records by the time they’re caught.

Ending the rape kit backlog has enormous potential to open up criminal investigations and convict sex offenders. In New York, grant money led to the testing of thousands of old kits, which led to 165 prosecutions and 64 convictions. Nationwide, processing 100,000 backlogged kits has yielded 1,000 arrests and hundreds of convictions. For survivors, knowing these kits are assessed has the potential to provide hope that justice is soon to be served.

Bay Area Attorneys Can Help You Understand California Senate Bill 22

The experienced attorneys at Lewis & Llewellyn are always on the lookout for new legislation like California Senate Bill 22. It is their dedication to staying informed about legislation that impacts survivors of sexual assault and abuse that allows them to judiciously handle these unique cases. 

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.

Childhood experiences, good and bad, play a major role in shaping our long-term health and mental well-being. When a person experiences sexual abuse in childhood, there may be effects that can last a lifetime. Some adult survivors experience few mental health problems, while others experience a number of adverse effects. Many people with past histories of childhood sexual violence suffer silently, with cases unreported and perpetrators unpunished. If you’re a survivor of sexual abuse, you may be wondering how sexual abuse can affect you. 

How Sexual Abuse Can Affect You Mentally  

Sexual assault survivors often suffer mental health effects like depression, anxiety, Post-Traumatic Stress Disorder (PTSD), and eating, substance abuse, sleep, and psychotic disorders. The amount and severity of the trauma, the number of perpetrators, and the nature of the relationship with the abuser all affect the degree to which a person suffers mentally. 

Chronic Depression

It was reported that 60% of women exposed to sexual violence met the criteria for chronic major depression. Researchers have estimated that the sexually abused have anywhere from 1.8 to 4 times greater likelihood of developing chronic depression. One survivor summarized her feelings this way: “I sometimes find myself very depressed over the question who would I be had I not been raped?”  

The persistent feeling of sadness or loss of enjoyment in life can lead to a range of physical symptoms, including changes in sleep patterns, appetite, energy level, and concentration. In an Everyday Health feature of six individuals with depression, it was discovered that the cost of managing the illness could range from $300 to $1,700 a month, not including losses to productivity.  

Anxiety and Post-Traumatic Stress Disorder

Post-Traumatic Stress Disorder is known by most as a war veteran’s mental health issue, as it typically affects overseas combatants returning home. Yet, 70% of sexual assault victims experience moderate to severe forms of distress. 

Symptoms can surface right away or take years to manifest after a trauma. For 94% of sufferers, symptoms persist at least two weeks; for 50% of them, the symptoms persist for years; and for a third of them, decades.

PTSD typically takes the form of nightmares, flashbacks, intrusive memories, intense waves of fear or anxiety, and pangs of guilt and shame. The disorder can lead to a litany of physical manifestations as well—chronic pain, intestinal problems, muscle cramps, or headaches. If left untreated, the chronic stress of PTSD can lead to high blood pressure, heart disease, autoimmune disease, fibromyalgia, memory problems, deep depression, substance abuse, long-term sexual dysfunction, heart attack, and stroke.

Eating Disorders

Eating disorders are often used as a coping mechanism tied to body shame, anger, guilt, a desire for control, and the need to purge oneself. It is believed that at least 30% of individuals with an eating disorder have been sexually abused, but due to the low reporting rate of sexual abuse, the actual figure could be much higher. One Florida hospital identified a history of sexual abuse in 50% of their anorexic and bulimic patients.

It took supermodel Carré Otis over 20 years to make the connection between her eating disorder and her history of sexual trauma. “I began to see how trauma in my past—profound violations of my body including molestation and rape—had led me to feel dissociated from my body, as if it was no longer my own,” she said. But she found it was never too late to start the process of healing. “I had to find compassion for the young girl who believed that controlling her body would make her safer in the world, who believed that the sexual assaults may have somehow been her fault.”

Substance Abuse Disorders

Sexual abuse victims are 13 times more likely to abuse alcohol, and 26 times more likely to abuse drugs than those who have not been violated. Substances are often used to escape the pain of reality, self-medicate symptoms associated with the abuse, or with intent to harm oneself. Most substance abusers suffer from other mental health disorders like depression, anxiety, PTSD, and dissociation.

RAINN tells the story of Carolyn, a young woman abused by an older cousin from ages 3 to 12 who turned to drug abuse in her teenage years to cope with the pain. “I used to self-harm because I was numb. I did it to feel something. It reminded me that I’m alive. You want to feel something because you’re so numb, you’re disconnected from your body. I also wanted to punish my body because I felt disgusting,” she explained.

Substance abuse can increase a survivor’s risk of re-victimization considerably by preventing the assessment of danger, impairing judgment, increasing reluctance to report violence to the police, and impeding realizations that might facilitate healing. For childhood sexual abuse survivors struggling with substance abuse, the hardest part is often releasing themselves from the layers of shame, guilt, and stigma they may face not only from the sexual assault but from the mental health comorbidities and addiction as well.

Sleep Disorders

Sleep disorders include: insomnia (inability to fall or stay asleep); hypersomnia (excessive daytime sleepiness); parasomnia (sleep behaviors like walking, talking, or teeth grinding); and intense nightmares during REM sleep. Numerous studies have found correlations between sleep disorders and childhood sexual trauma. One community study found 68% of sexual abuse survivors had trouble sleeping, with 45% suffering from repetitive nightmares. Another study found 52% of survivors reported insomnia, 53% suffered from intrusive thoughts or flashbacks, and another 36% had nightmares.  

Oftentimes, many victims are sexually abused at night or in a bedroom setting. As a result, sleep time may create tension, hypervigilance, and exacerbation of PTSD symptoms consistent with insomnia. Many childhood sexual abuse survivors suffer from nightmares, night terrors, and other sleep disturbances that interfere with normal rest patterns. 

Poor sleep quality compromises immune, metabolic, and neuroendocrine function. Many people experience a heightened sensitivity to pain when they are unable to obtain quality rest. Inflammation, heart disease, and diabetes have all been linked to poor sleep. Sexual abuse survivors with sleep disorders are more likely to have car accidents, suffer from chronic medical conditions, live with a functional disability, use more medical services, experience greater symptoms of depression and PTSD, and suffer from a decreased quality of life.

Finding a safe, healthy way to improve sleep amount and quality becomes an important part of healing. Cognitive-behavioral interventions have been successful in reshaping REM sleep and helping survivors achieve better quality rest.

Psychotic Disorders

Symptoms of psychosis and schizophrenia can include auditory hallucinations, delusions, fear of a particular sex, failure to recognize friends or family, persistent anxiety, insomnia, agitation, panic attacks, and hypersensitivities. 

A 30-year Australian study found that children who were sexually abused experienced a 2.8% higher rate of psychosis and a 1.9% higher rate of schizophrenia. Those subjected to abuse by penetration were 3.4% more likely to develop psychosis and 2.4% more likely to develop schizophrenia. Children abused between the ages of 12-16 by more than one perpetrator had a risk of developing psychotic syndromes 15 times greater than the general population.

In most cases, symptoms of psychosis emerge within the first few months after sexual abuse and persist for many years. However, there has been at least one documented case of a 16-year-old girl hospitalized for psychotic symptoms after she saw the man who molested her as a five-year-old child.

Due to the profound ways sexual violence can affect survivors, seeking support is critical, whether it’s immediately after the incidents took place or years later.

How Can Civil Litigation Help After Sexual Abuse?

Criminal cases are designed to determine the guilt or innocence of the accused, with the end result often being jail time, probation, sex offender registration, and money paid to the state for crimes committed. By contrast, the primary goal of civil litigation is to help plaintiffs recover compensation for losses suffered as a result of the sexual abuse. Since many victims suffer wage losses, increased medical expenses, and the need for therapeutic counseling, financial recompense may be vital to healing and starting life anew. 

It is important to note that sexual abuse lawsuit filing deadlines may apply to your case. If you are filing charges against a government institution, you could have as little as 90 days to start your claim. In other cases, you may have an unlimited amount of time to press criminal charges or up to three years from the date of discovering the cause of your mental illness to file a civil lawsuit. In most cases, survivors of childhood sexual abuse have until their 26th birthday to file. Since the laws are ever-changing, it is always best to speak with a sexual abuse attorney before discounting your case.

Bay Area Sexual Abuse Attorneys Can Help 

Due to its complex nature, it may be difficult to understand just how sexual abuse can affect you. If you decide to seek justice against those who wronged you, it’s important to have an attorney who can foresee what damages can reasonably be gained, given your unique circumstances. 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.

The civil attorneys at Lewis & Llewellyn have spent years building relationships with experts, including psychiatrists, researchers, insurance adjusters, and world-renowned psychology experts. Our prepared team brings witnesses to the stand who can focus the court’s attention to the impacts of sexual abuse and how survivors are affected later in life.

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 2015 case study estimated that 10% of K-12 students will experience sexual misconduct by a school employee by the time they graduate from high school. Of those students who experience sexual misconduct, many of them will decide not to come forward about the incidents for various reasons. When victims of sexual abuse or assault suffer in silence, it makes it easier for the abuser to continue inappropriate behavior. 

School officials have a legal duty of care to protect each student but unfortunately, some districts have been accused of “passing the trash.” This allows teachers accused of sexual assault or abuse to resign quietly and transfer other school districts—similar to the church diocese scandals.   

What Is “Passing the Trash?”

“Passing the trash” is a phrase used to describe the concept of allowing sexual predators to quietly seek employment at other establishments, without alerting new employers of past allegations. A federal report found the failure of U.S. schools to protect students from sexual predation to be “a story of district cover-ups, lack of training, incomplete teacher background checks, and little guidance from the U.S. Department of Education.”

For school officials, it is an easy way to get rid of problematic teachers who have a pattern of lewd behavior, without themselves admitting wrongdoing, exposing themselves to ongoing liability, seeking to revoke teaching credentials, or tarnishing the reputation of their schools.

“School systems have customarily tried to handle these situations by sweeping it under the rug, by letting child predators quietly resign and go on to another district, sometimes with glowing recommendations,” explained Terri Miller, president of the advocacy group Stop Educator Sexual Abuse Misconduct and Exploitation. “We see that as deliberate and calculated child endangerment.”

Administrators at the new schools unwittingly hire abusers from outside the district or the state. In the absence of proper training, school employees do not understand how to identify grooming behaviors or fully comprehend their roles as mandated reporters.  

“Passing the trash” not only involves teachers moving between schools, but priests and pastors moving between church parishes as well. A comprehensive lawsuit filed in Los Angeles County Superior Court by a sexual assault survivor revealed how bishops engaged in a “geographic solution” of moving sex offender priests from one diocese to another—including the Bay Area—without informing the local communities.

Current Laws Designed to Stop “Passing the Trash”

There are a few laws that can be used to remind school districts of their legal responsibility to children in their care and stop them from covering up allegations of sexual abuse.   

• Title IX: Little protection from sexual predation existed before Title IX passed in 1972, granting all children the right to an education program free from all forms of discrimination, including sexual discrimination. The law mandates schools to have procedures in place to protect students from sexual harassment by school personnel.
• CANRA: California’s Child Abuse and Neglect Reporting Act of 1980 stipulates that any individual working directly with children must report known or suspected child abuse of any kind to the local police department, a state welfare agency, or probation department within 36 hours. Failure to do so could carry fines up to $1,000 and up to six months in prison. When the abuse results in grievous bodily harm or death, the penalties stiffen to $5,000 or a year in jail. Furthermore, failure to report opens up school administrators and employees to civil liability, should you wish to file a sexual abuse lawsuit.
• ESSA: Section 8546 (Prohibition on Aiding and Abetting Sexual Abuse) of the Every Student Succeeds Act of 2015 requires all states and school districts applying for federal funds to “have laws, regulations, or policies in place” that prohibit schools from assisting employees in obtaining new employment if they know, or have probable cause to believe, that such school employees have engaged in sexual misconduct regarding minor students. Despite the clear mandate, a 2017 Department of Justice study found that only four states—Connecticut, Oregon, Pennsylvania, and Texas—were in compliance with the law. A state-by-state analysis of progress with compliance is underway, scheduled for completion in the spring of 2021.

Lawmakers are pushing for even more legislation to stop the act of school districts and church dioceses “passing the trash.” 

New Legislation That Could Stop “Passing the Trash”

Recently passed, California’s Assembly Bill 218 (AB 218) would deter “passing the trash” by allowing survivors of childhood sexual abuse more time to report their abuse. Assembly Bill 218 proposes expanding the statute of limitations deadline from age 26 to age 40 and expanding the rule of delayed discovery from three to five years. Most significantly, the bill would also grant a three-year window (extending until January 1, 2023) for reviving past claims of child sexual abuse, regardless of when the alleged incidents took place. Under AB 218, plaintiffs would be able to demand financial restitution from those who helped “cover-up” sexual assault crimes, as well as the abusers themselves. New York passed a similar lookback window with the Child Victims Act this year; more than 400 lawsuits were filed within the first few days of its passing.  

The Association of California School Administrators, the California School Boards Association, and other groups openly opposed AB 218 because of its potential financial toll. Despite their opposition, the bill was signed in October 2019. New members are facing increased rates, hard caps, exclusions, lower coverage limits, and stricter underwriting processes that expose schools to the direct cost of sexual abuse claims. Meanwhile, the Archdiocese of Los Angeles and the dioceses of Fresno, Orange, Sacramento, San Bernardino, and San Diego are implementing an Independent Compensation Program to provide childhood sexual abuse victims with financial relief. Similar compensation programs in New York have paid out settlements ranging from $25,000 to $650,000, with the average payment closer to $200,000.  

Filing a civil lawsuit against a school district or church diocese is one way to penetrate the secrecy to get the names of known abusers released and put an end to “passing the trash.” 

Contact an Experienced Sexual Abuse Attorney in the Bay Area

As it currently stands, there are sufficient legal grounds to sue a school district for “passing the trash.” While churches are not beholden to the same set of laws as publicly-funded school districts, the mandatory reporter law does place legal demands on priests, bishops, and other church officials on reporting known or suspected child sexual abuse to the proper authorities—rather than simply making note of the allegations in their internal church logs and quietly “retiring” or moving around offenders. 

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.

In 1990, California’s Code of Civil Procedure 340.1 liberalized the statute of limitations in childhood sexual abuse cases. According to the revised statute, childhood sexual abuse victims would have eight years from obtaining the age of majority (age 26) or three years following “the discovery of harm” to file a legal complaint in civil court. This rule of delayed discovery gives hope to victims who may discover signs of sexual abuse later in life. If you were a victim of sexual abuse in the past—and you’ve only recently made the connection between the abuse and the harm you’ve suffered—sexual abuse attorneys in the Bay Area may be able to help.  

What Constitutes the Delayed Discovery of Sexual Abuse?

When someone is sexually abused, they don’t always interpret what’s happened to be abuse. This misunderstanding is more common in cases of sexual abuse of children, especially when the child has been groomed by their abuser. There are many other reasons why a sexual abuse victim wouldn’t immediately make the connection, discovering signs of sexual abuse later in life.   

• The victim was deceived. Take, for instance, the case of Dr. Larry Nassar, the USA Gymnastics’ team physician who was sentenced to 175 years in prison for serial molestation. The victims were unaware that the doctor was deviating from standard medical procedures when he would perform pelvic physical therapy on them. Some of the parents of these young girls were even in the room during these treatments. Many victims had attempted to come forward with questions or concerns but were failed institutionally. 
• The victim was physically or mentally disabled. Those with physical or mental disabilities are more likely to be sexually abused by members of their family or trusted caregivers; this can be true for children with disabilities as well as elderly individuals. Predators may seek out those with disabilities as they may be less likely to perceive the actions as inappropriate. Certain types of disabilities can mask behavioral changes that could otherwise be attributed to sexual abuse, making it easier for the perpetrator to get away with it.  
• The victim suffered mental illness as a result of the abuse. The classic psychological responses to trauma include numbing, denial, amnesia, dissociation, and achieving altered states of consciousness. If the victim experiences any of these traumas, they may partially or fully repress memories of the assaults and the accompanying suffering. Over time, stages of discovery may develop through therapy, triggering events, life changes, or maturation into adulthood.

A victim who discovers the signs of sexual abuse later in life can choose to file a civil lawsuit.  

Delayed Discovery Claims in Cases of Child Sexual Abuse  

There are a handful of noteworthy cases where the delayed discovery rule was applied.

• In Hammer v. Hammer, a girl who had been sexually abused by her father for an average of three times a week from age five to 15 alleged that the psychological distress caused by the abuse made her unable to comprehend the nature of her injuries. It wasn’t until she went to counseling during adulthood that she was able to see the abuse for what it was. The Wisconsin Court of Appeals recognized the “intolerable perversion of justice” in applying a strict statute of limitations to her case.
• In Osland v. Osland, the court determined that a woman suing her father for childhood sexual assault and battery between the ages of 10 and 15 had sustained emotional trauma severe enough to prevent her from discovering her cause of action during the statute of limitations.  
• In Johnson v. Johnson, a 32-year-old suddenly recalled incest during psychotherapy and made the connection to her current injuries. The Illinois courts separated delayed discovery cases into two categories: Type 1, where the plaintiff knew of the sexual assaults at the age of majority but was unaware that physical and psychological problems were caused by it; or Type 2, where the plaintiff had no recollection of knowledge of the sexual abuse until recently. After classifying it as a Type 2 case, the court allowed the action to proceed, citing her “blameless ignorance” and “total memory loss” as valid reasons to file after the deadline.   
• In John R. v. Oakland Unified School District, the court ruled that a parent’s delayed discovery of a sexual assault on a minor was due to the “continuing effect of the assault,” so the cause of action for the assault didn’t begin tolling until the abuse had commenced or until the realization of harm by the victim—or, in this case, by the victim’s parents.
• In Evans v. Eckelman, a California appellate court didn’t immediately discount a plaintiff’s right to invoke the discovery rule by alleging “unawareness” that the abuse was wrong, or by alleging repression of the abuse. In this case, three brothers were molested by their uncle and former foster father and claimed they developed psychological blocking mechanisms that prevented them from comprehending the wrongfulness of the abuse, as well as the nature and extent of the resulting damage. The court also agreed that the “special relationship” between the parties made it difficult for the plaintiffs to comprehend the negligence or the injury. They acknowledged that the psychological blocking or coping mechanisms used by children in cases of sexual abuse were well-established by researchers and commentators. 

In these cases, the victims were able to file after the deadline but this isn’t always the case.  

Discovering Signs of Sexual Abuse Later in Life and Filing Deadlines

While many plaintiffs in childhood sexual abuse cases find success in applying the rule of delayed discovery to civil lawsuits, overcoming statutes of limitations remains a hard-fought battle in most circumstances. It may be best to bring a claim within the state deadlines if possible. These cases still represent the minority, but provide a glimmer of hope that, since 1990, the courts have arrived at a better understanding of the unique psychological conditions of victims, and why adult survivors of childhood sexual abuse may need to come forward after discovering signs of sexual abuse later in life.  

Even more powerful than the delayed discovery rule is the portent for lawmakers to open up a lookback window. During these windows, lawmakers temporarily abolish the statute of limitations for seeking justice against child sexual abuse, allowing any previously time-barred case to have its day in civil court. New York recently passed the Child Victims Act which allows such a window. California has had a lookback window in the past and another through Assembly Bill 218 is currently under consideration.

The rule of delayed discovery can be used in many cases, but it’s best to consult an experienced attorney to find out about any deadlines that may apply to your specific case.

What to Do If You’ve Discovered Signs of Sexual Abuse Later in Life

Perhaps you only recently realized a childhood experience constituted as child abuse. Maybe the identity of your assailant was unknown, or you mistakenly believed the institution in charge of protecting you had the situation under control. Or maybe you thought you had put the past behind you, only to find that a triggering event in the present has made you aware of the signs of sexual abuse later in life.

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

DISCLAIMER: The information in this blog is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this blog or on this website should be construed as legal advice from Lewis & Llewellyn LLP. Neither your receipt of information from this website, nor your use of this website to contact Lewis & Llewellyn LLP creates an attorney-client relationship between you and the firm or any of its lawyers. No reader of this website should act or refrain from acting on the basis of any information included in, or accessible through, this website without seeking the appropriate legal advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s jurisdiction.

In 2014, California became the first state to enact a “Yes Means Yes” law on college campuses to improve how universities handle rape and sexual assault accusations and to clarify the standards, requiring an “affirmative consent” and stating that consent can’t be given if someone is asleep or incapacitated by drugs or alcohol.

This law of good intentions has achieved a lot in the minds of sexual assault survivors, but the Bureau of Justice Statistics found the rates of sexual violence “experienced no significant change” from 2006 to 2015. As it stands in 2019, the law has brought as much controversy as it has relief, which is perhaps why lawmakers have been hesitant to apply “yes means yes” more broadly across the state, outside the college campus environment. Former Governor Jerry Brown vetoed such legislation in 2017, leaving many unclear about the laws regarding affirmative consent in California. 

Affirmative Consent is the Standard on Many College Campuses

Under the “Yes Means Yes” law (Senate Bill 967), “yes means yes,” rather than “no means no” in determining whether a sexual assault took place. The law applies to all California schools receiving state financial aid money, but many private schools like Stanford and USC have adopted the increased consent standard. State public high schools are also taught “yes means yes” as part of their sexual education.

“Yes means yes” requires both parties to give their authentic, uncoerced, voluntary, and ongoing affirmative consent every step of the way during a sexual encounter. If one of the parties is intoxicated, passed out, or otherwise silent, consent can’t be automatically implied. Consent may also be revoked at any time.

The law also requires schools to adopt a “preponderance of evidence” standard (greater than 50% likely to be guilty), which is much lower than the “beyond a reasonable doubt” standard common to criminal proceedings in courts.

Does the Affirmative Consent Law Apply Off-Campus? 

Currently, there is no broad-based affirmative consent law in California. Former Governor Jerry Brown vetoed legislation that would have expanded the “yes means yes” affirmative consent standard beyond the boundaries of college campuses.

The governor reasoned, “Thoughtful legal minds have increasingly questioned whether federal and state actions to prevent and redress sexual harassment and assault—well-intentioned as they are—have also unintentionally resulted in some colleges’ failure to uphold due process for accused students.”

The Controversy Surrounding Senate Bill 967

Prior to 2015, college student victims had to prove “beyond a shadow of a doubt” that they did not consent to sexual interactions. Without a clear and forceful “no,” it was hard for survivors of sexual assault to prove the acts were unwanted. 

Having an affirmative consent standard changes the dynamic in favor of the survivor. But, many believe that SB 967 makes it difficult to prove innocence for students accused of campus sexual assault. 

Many believe:  

• The legal standard infringes on due process of the accused. “Affirmative consent laws turn normal human interactions into sexual offenses,” opponents of the law argue. “They establish a presumption of guilt and strip the accused of due process protections. They are also being used by campus activists to selectively prosecute students with unpopular viewpoints on controversial issues,” according to Reason.
• The law is ambiguous at best and awkward at worst. One editor put it this way: “As a legal standard, nonverbal affirmative consent leaves campus tribunals in the position of trying to answer murky and confusing questions.” Do nonverbal actions of consent mean nothing? Would mandating these standards “kill the mood” and make a terribly awkward situation out of an otherwise enjoyable encounter? Sex therapists will argue the best sex requires “letting go” of self-consciousness, but this guideline demands the opposite.  
• Some have gone too far in their rhetoric. Ezra Klein of Vox won few fans when he said, “Everyday sexual practices on college campuses need to be upended, and men need to feel a cold spike of fear when they begin a sexual encounter.” Filling colleges with cases “in which campus boards convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations” is merely the price of progress, in some views.   
• The law doesn’t go far enough in addressing the real problems. Even self-ascribed “feminists” say they are unhappy with the government’s weak prescription for sexual assault. According to Roz Galtz: “Far more productive fix than state-by-state replication of California’s SB 967 would be to pass federal legislation dismantling campus criminal adjudications altogether, along with the state and federal programs that lend them legitimacy and gravitas… Rather than wasting time managing pretend-judicial systems, they should direct their formidable resources to improving community-based access to rape crisis advocacy, which research suggests would do far more to help survivors than new consent standards ever could.”

Contact Sexual Assault Attorneys About Affirmative Consent in California 

The laws regarding sexual assault and affirmative consent in California can be confusing, and it can seem like forever waiting for the legislature to catch up to public sentiment or to get it right. San Francisco sexual assault attorneys Lewis & Llewellyn are happy to discuss your case and California’s standards for consent during a free consultation. We represent sexual assault survivors wishing to pursue justice through the civil court system. Compensation may be available to cover pain and suffering, medical bills, the cost of therapy, lost wages, and other tangible losses stemming from the assault. 

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 teachers owe a special “duty of care” to their students as designated childcare custodians who act in loco parentis—in place of the parents. They not only instruct their pupils but supervise their daily activities and pledge to keep them free from harm. A sexual relationship with a student could prevent a teacher from carrying out their legal duties to protect students from sexual abuse. When it comes to children under age 18, the law and court opinion are unambiguous: minors cannot give consent to sexual conduct, and any such relationship is expressly forbidden. Here, we explore California’s student-teacher relationship laws and related codes of conduct. 

“Can I Have a Sexual Relationship With My Teacher If I’m 18?”

Despite the legal definition of an adult as someone “18 and older,” state courts have held that sexual relationships between students and teachers are against the law. In 2010, the Supreme Court of Washington ruled that a choir teacher’s sexual relationship with an 18-year-old student constituted “sexual misconduct with a minor,” even though the student had reached the state age of majority. The teacher avoided jail time but lost his teaching certification after pleading guilty to coercion.  

Two years later, a 41-year-old California high school teacher made headlines when he left his wife and children to live with his 18-year-old student. Though the girl has openly declared her love for the teacher, her mother waged a public campaign against him, saying, “He shouldn’t be with kids… I’d like to get information from when she was a minor and have him arrested.” Shortly thereafter, another victim came forward about an affair in 1998, when she was 17 years old. The teacher was charged with “oral copulation with a minor.” A plea deal took jail time off the table and reduced the felony charge to a misdemeanor. He was sentenced to three years of probation and registry on the state sex offender list.      

Legislators were quick to respond to public pressure but ultimately did not succeed in their efforts to clarify the law with regard to student-teacher sexual relationships. In April 2012, California lawmakers rejected Assembly Bill 1861, a bill that would have made it a felony for teachers to date their students. It also would have stripped offenders of their pension and retiree health care benefits. The law was opposed by the California Federation of Teachers and ACLU. Committee members claimed the bill was “not fully baked” and represented a “knee jerk reaction” to an individual case that had attracted a lot of attention. 

Ethical Considerations in Higher Education 

In the absence of state and federal laws expressly prohibiting sexual relationships between teachers and students who are “consenting adults,” at least 18 years of age, some schools have instituted their own internal policies that make the practice unethical and cause for written censure or dismissal.

Since 2003, the 23 schools within the California State University system have openly banned the “sexual harassment” of students by teachers. Individual school policies specifically condemn relationships between academia and those in their care.

Stanford University’s administrative guide explains the ban on professor-student dating applies “because of the relative youth of undergraduates and their particular vulnerability in such relationships.” The guide further explains that “such relationships may also have unintended, adverse effects on the climate of an academic program or work unit, thereby impairing the learning or working environment for others—both during such a relationship and after any break-up.” 

“The very integrity of the university’s academic mission is dependent on the accountability of the faculty member as a mentor, educator, and evaluator,” said UC Poli-Sci professor Gayle Binion.

Deans, school administrators, coaches, supervisors, and professors exert broad influence over a student’s experience at Stanford. “The potential for conflict of interest, exploitation, favoritism, and bias” exists when direct relationships between supervisor and supervisee are allowed. To maintain the integrity of their programs, discouraging such relationships seems a logical step.

San Diego State University’s policy on the professional responsibilities of faculty members emphasizes that academic professionals “shall not engage in sexual relationships with students currently enrolled in their courses or under their supervision”—a violation that will be handled within its respective academic department or, if necessary, at the institutional level.

Child Molestation and Student Teacher Relationship Laws

Sex with students over 18 may not be a state felony, but there are laws protecting minors from sexual abuse at school. In the state of California, any sexual contact with a student under the age of 18 is explicitly prohibited by law.

• Penal Code 261.5 defines “statutory rape” as unlawful intercourse with someone under the age of 18. Minors are not legally allowed to give their consent to sexual activities of any kind. Punishments range depending on the age gap—from fines of $2,000 when the age gap is less than two years, to up to $25,000 in fines and felony charges that could result in jail time when the perpetrator is over 21 and the victim is under 16.
• More broadly, Penal Code 288 prohibits “lewd acts with a minor child.” It is against California law to “commit any lewd or lascivious act, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years.” Any form of touching over or under the clothing is considered a “lewd act” and punishable as a felony with up to eight years of jail time and the perpetrator added to the sex offender registry.  
• Penal Code 647.6 prohibits the “annoyance or molestation of a child under 18” as a misdemeanor offense punishable by up to a year in jail and fines up to $5,000. Adults can be charged simply by arranging a meeting with the intent to commit child molestation, as seen on Dateline stings where a police officer poses as a child to lure offenders to a hotel room. Conduct that is “motivated by an abnormal or unnatural sexual interest in children” is a violation of the law. Multiple violations can be charged as a felony, with a two- to six-year prison sentence. 
• Federally, under Title IX law, “sexual discrimination” is prohibited in all schools. Districts are required to categorize “grooming behaviors” as sexual harassment red flags and investigate those claims as they would any other reported incident of sexual misconduct.

While not exactly illegal, evidence of sexual grooming behaviors is admissible in California courts. The presence of these behaviors can be a sufficient cause for further investigation that could lead to a conviction or a civil lawsuit against the enabling institution.

California Teachers Have a Mandatory Duty of Care for Students

The duty of a teacher goes beyond merely instructing students in a way that is free from discrimination, bias, or prejudice. The duty of a teacher is to protect children under their direct or indirect supervision from harm. California labels all teachers as “mandatory reporters” for child abuse. If a teacher receives a report of child abuse, or has a reasonable suspicion of child abuse, the law states that the teacher must:

• Make a verbal and written external report to the local police, county welfare, or probation department.
• Report known or suspected abuse in a reasonable timeframe (within 36 hours).
• Give one’s name and contact information to aid in the investigation.

Schools are liable for encouraging mandatory reporting, having employees sign a written statement that they are aware of the law, providing training to help employees understand how to spot child abuse, and assist with the filing of reports if necessary.

Failure to uphold the mandatory reporter law is punishable by up to six months in jail and a fine of $1,000. Beyond the criminal penalty for failure to report, teachers and schools can be sued in civil court for failing to meet the standard duty of care.

Contact an Attorney About Student-Teacher Relationship Laws in California

If you have any questions about student-teacher relationship laws in California, it’s best to talk with a legal professional. Lewis & Llewellyn is a national leader in prosecuting civil child sexual abuse cases. Our clients include children, parents, and adult survivors of trauma. We are not afraid to take on respected faculty members, schools, districts, administrators, or teachers’ unions. All consultations are confidential and provided free of charge. 

 
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 Centers for Disease Control and Prevention defines sexual violence as “sexual activity when consent is not obtained or not freely given.” Survivors of sexual violence typically experience adverse effects that may lead to a host of reactions. Here, we discuss four common stages of reaction to sexual violence and how survivors can obtain guidance when dealing with them. 

Stages of Reaction to Sexual Violence    

When seeking ways to recover, a survivor of sexual violence may come to the realization that legal action is necessary. The passage through these stages of reaction is not always smooth or straightforward. Two stages can occur at once, or the survivor may go back and forth between stages for a time, or they may even find themselves stuck in one stage perpetually. The optimal situation is to reach a point of empowerment and resolution.

Stage One: Acute Crisis 

In the hours and days following an act of sexual violence, shock and confusion are the most common initial reactions. It may be difficult to comprehend or believe what happened and why it happened. Some survivors may display strong physical reactions—visibly shaking, crying, fainting, or experiencing seizures—while others retreat to a subdued, almost catatonic, state of calm, cold detachment.

During the crisis stage, fear is often the predominant underlying emotion—fear of seeing the abuser again, fear of the places or situations where the abuse occurred, fear of another attack, fear of judgment, and fear of being ostracized or alone. Victims often feel as though they are somehow to blame for what happened, suffering tremendous guilt and shame. Some sexual assault survivors may choose to talk about their experience with someone they trust, while others may never feel comfortable discussing it—even denying it ever happened.

Stage Two: Denial 

During the denial stage, a survivor may not recognize the sexual activities as abuse, or they may try to rationalize that the abuser’s behavior. In the documentary Leaving Neverland, one accuser said he never thought of the activities as a love affair until he reached his thirties, had a son of his own, and realized how he would feel if an adult did those same things with his child. This lack of awareness and inability to empathically connect with a former child self is common to survivors of sexual violence.

Denial is routine in situations where memories are unclear or repressed. Dissociation is a defense mechanism where a person disconnects thoughts, feelings, actions, memories, identity, and awareness of one’s surroundings. Dissociation can be used as a way to escape from fear, anxiety, pain, and horror. Later in life, a person may have no memories of the event, merely a vague suspicion that something has happened. Memories may return in flashbacks, dreams, or odd sensations during periods of intimacy or when encountering people and places from the past.

Even when a child immediately understands the nature of sexual contact as abusive, denial may prevent disclosure. Denial can lead one to think, “No one will believe me.” The burden of disclosure may be something a victim does not wish to share with a parent or other loved one. They may believe the pain will go away as long as they don’t think about it. Victims may change residence, jobs, or schools in an attempt to return to normalcy. They may also retreat to alcohol, drugs, overeating, overworking, or sleep to numb their feelings.

Denial can be a passing phase or it can be long-lasting.    

Stage Three: Suffering 

Once the reality of what has happened sinks in, the suffering stage typically begins. The harm suffered as a result of sexual violence can be physical, mental, and emotional. The symptoms can be debilitating and constant, or they can come and go in phases when triggered. For many, reading, watching, or hearing about similar stories of sexual abuse can be a trigger. Others may be triggered by changes in life situation—a new relationship, marriage, divorce, having children. Triggers can also be situational, based on encounters with people, places, or items from the past. 

Going through the suffering stage can be challenging but it doesn’t have to last forever. “If you are one of the many people who continue to carry the secret of childhood sexual abuse, it is vital that you break your silence,” explains psychotherapist Beverly Engel. “Even though it is difficult to reach the point where you can finally tell someone, this dark secret can make you sick, emotionally, psychologically, even physically. It can eat at you from inside, draining you of vital energy and good health.” 

Stage Four: Resolution  

Resolution is a long-term process of coming to grips with feelings stemming from sexual violence, the attacker, and oneself. Often, through individual therapy or group support settings, adults move from “victim” to “survivor,” and become empowered to take action against what happened. They come to a certain acceptance, as painful as it may be, and learn to integrate the event into their overall timeline as a transformative moment that has defined who they are to become—a fighter, an advocate for other survivors, a resilient being.

Once a person is willing to speak about what has happened, there are two legal paths they can take:

• Press Criminal Charges

The first is the opportunity to press criminal charges. The survivor files a police report and waits to see if there is sufficient evidence to move forward with an arrest. If the accused is found guilty in criminal court, a prison sentence, fine payable to the state, probation, and registration on the sex offender list are possible consequences.

Do note that a 10-year deadline may apply if the abuse occurred prior to January 1, 2017. The State of California formally abolished the statute of limitations with SB 813, so childhood sexual abuse and rape survivors will be able to pursue justice at any time in their adult lives. There are exceptions to every rule, so it is wise to consult with a lawyer.    

• File a Civil Lawsuit

Another path is the pursuit of a civil lawsuit. The two paths are not mutually exclusive; you can file a civil lawsuit while criminal charges are pending. The benefit of a civil lawsuit is that, if successful, your case could result in money paid to you for the losses incurred such as medical bills, therapy bills, lost wages, reduced earning capacity, and pain and suffering. 

In civil court, there is a reduced standard of evidence. While criminal courts require you to prove “beyond a reasonable doubt” that your version of events occurred, civil courts base their decisions on “a preponderance of the evidence,” where the judge and jury must believe your version was 51% or more likely to have happened.

There is also a more generous filing deadline—until age 26 or “within three years of the discovery of harm.” Lawyers can argue that a myriad of factors interfered with your mental ability to comprehend what happened to you. Expansive lookback windows—in the past and currently under consideration again—make it even easier for adult survivors to file civil lawsuits against wrongdoers.

Civil courts also allow an expanded scope of liability. With civil litigation, it is not just the abuser who has committed a wrong, but any institution that knew (or should have known) about the abuse and did nothing. The benefit here is that these institutions are better insured than individuals to pay the money you need for rehabilitation. Civil courts have held schools, church dioceses, Boy Scout groups, medical facilities, youth sports associations, and other third parties liable for sexual abuse. 

Experienced Attorneys Can Help Survivors of Sexual Violence   

No path to justice is particularly easy. However, many survivors of sexual violence find they are empowered by speaking up after years of silence and seeking validation through the pursuit of justice. If you are ready to seek justice, the attorneys at Lewis & Llewellyn may be able to help. We have a proven track record of multi-million-dollar settlements against large entities. No matter what stage of reaction you’re experiencing, breaking the silence can help you move toward recovery. 

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.

By the end of 2018, more than 14,000 unaccompanied alien children (UAC) were in the care of the U.S. Department of Health and Human Services (HHS). As of August 25, 2019, that number had decreased to approximately 7,000 UAC in HHS care. 

Many of these children were apprehended by immigration authorities for illegally crossing the United States border. When this happens, the UAC is placed in the custody of the Office of Refugee Resettlement (ORR), a United States government program, where they are housed in a shelter or foster care until they can be released to an adult sponsor or reunited with their family. Unfortunately, there have been reports of sexual abuse of migrant children while in the care of the U.S. government which leaves parents and guardians wondering who to hold liable in court.     

Reports of Sexual Abuse of Migrant Children in the United States

In each year from 2015-2018, more than 1,000 migrant children who arrived at the southern U.S. border without their parents reported being sexually abused while in government custody, according to federal records. Of the approximate 4,500 allegations between 2015 and 2018, 1,300 were forwarded to the FBI for prosecution. Officials say the vast majority of cases were unfounded, and many allegations involved child-on-child sexual abuse, but there were at least 178 complaints against youth care workers. 

“Any time a child is abused in the care of ORR is one time too many,” said Jonathan White, U.S. Public Health Service Commissioned Corps commander.

The American Civil Liberties Union plainly explains: “All human beings deserve to be treated with dignity and respect, regardless of their immigration status—and children, in particular, deserve special protection.”

In August 2019, President Trump replaced the highly-criticized Flores Settlement Agreement forcing the separation of migrant children from their parents while they await trial with the new Flores Final Rule, which keeps families together. The decision came after the Department of Justice reported that 1,125 of the 1,303 sexual abuse cases involving minors they had received involved attacks from other minors.

What Duty of Care Does the ORR Owe Migrant Families?

By law, HHS has custody and must provide care for each UAC, defined as a child who has no lawful immigration status in the United States; has not attained 18 years of age; and, with respect to whom, there is no parent or legal guardian in the United States, or no parent or legal guardian in the United States available to provide care and physical custody. 

The ORR is responsible for the care and custody of migrant children from the time they leave ICE or Border Patrol agents until they are reunited with a loved one. The ORR has a zero-tolerance policy for all forms of sexual abuse, sexual harassment, and inappropriate sexual behavior at all care providers that house unaccompanied alien children. All ORR staff must report knowledge, suspicion, or information about sexual abuse, sexual harassment, or inappropriate sexual behavior according to mandatory reporting laws, federal laws and regulations, and ORR policies and procedures.

With regard to sexual abuse, duties for ORR staff include:

• Mandatory reporting of known or suspected sexual abuse: Mandatory reporters are required by law to take immediate action or face legal consequences. Care providers aware of the abuse must file an incident report immediately or no later than four hours after learning of the allegation. The report is shared with Child Protective Services, the state licensing agency, HHS/OIG, the FBI, and local law enforcement.
• Reviewing and responding to every report of sexual abuse submitted: When appropriate, ORR may be required to suspend staff members suspected of abuse and temporarily stop the placement of unaccompanied migrants until the issues are remedied. Termination must be the sanction for staff members who violate ORR policy.
• Monitoring staff members: ORR care providers are subject to monitoring by state licensing agencies.
• Vetting hired staff: ORR care providers must meet minimum requirements and qualifications and pass a pre-employment background check. No one with a history of sexual abuse, sexual harassment, or inappropriate sexual behavior may be hired or allowed to work with children.
• Completing ongoing training: Prior to employment, staff must complete training regarding inappropriate relationships, communicating with unaccompanied alien children, reporting procedures, and trauma sensitivity. Every year or policy change additional refresher courses must be taken. The ORR also provides periodic training on topics related to the prevention of sexual abuse.

Violations of these duties could be potential grounds for a civil lawsuit. In one case, a youth care worker at an Arizona shelter was allowed to work without a criminal background check and was subsequently convicted of molesting seven migrant boys over the course of a year. The state closed down two shelters after discovering they hadn’t conducted background checks on staff. In another case, shelter staff waited nearly a month to report abuse allegations to authorities and taped over video evidence.  

Help for Sexually Abused Migrant Children

Reporting is the first step in seeking justice. If sexual abuse, harassment, or inappropriate relations occur, youth in ORR care can report what happened verbally and in writing to:

• The UAC Sexual Abuse Hotline (1-855-232-5393, available 24/7, in Spanish or English)
• The National Rape Crisis Hotline (1-800-656-4673)
• Child Protective Services
• care provider staff
• consular officials
• local community service providers

For minors, a number of advocates can help. Knowledge of sexual abuse can be reported by a:

• another child
• family member
• sponsor
• child advocate
• staff member
• legal service provider

Parents and guardians may also pursue legal action on the minor’s behalf.

Taking Legal Action Against the Sexual Abuse of Migrant Children 

Families are making legal claims under the Federal Tort Claims Act, which holds the federal government responsible for the negligent or wrongful acts of its employees acting in their official capacity. The U.S. government has six months to settle FTCA claims. If they cannot be resolved in this timeframe, victims are free to file lawsuits.

Migrant families have found advocates in civil attorneys specializing in sexual abuse. Newsweek reports at least 38 lawsuits with a total price tag of $200 million have been filed so far, which is likely just the tip of the iceberg. Many more lawsuits are expected to arise as child separation-related claims start trickling in.

Many of the children sexually abused while in U.S. custody reported having difficulties eating, sleeping, using the restroom, or bonding with caregivers. One family that has filed a $6 million lawsuit says their five-year-old wakes up crying regularly, begging, “Don’t let them separate us again.”

Taking immediate action is paramount to ensuring you have enough resources to care for a sexually abused child. Experts say the details may elude them, but residual trauma from these experiences can last a lifetime. Child development expert Janet Shapiro explains, “They have other kinds of memories, whether it’s body sensations… mental health challenges, dysregulated emotions, not feeling sure or secure about who they are. It’s a bit like a scar. It’s not that you can’t move forward, but there’s a little part of the experience that remains with you.”

Contact an Experienced Child Sexual Abuse Attorney

If you or your child was sexually abused while in the care of the U.S. government, 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.

New York has joined states like California in efforts to afford survivors of childhood sexual abuse the opportunity to seek justice against their abusers. The Child Victims Act (S2440) was signed into law by New York Governor Andrew Cuomo on February 14, 2019. It provides a beacon of light for victims of childhood sexual abuse who may have suffered silently or been unable to take legal action due to expired statute of limitations.

If you are a survivor of childhood sexual abuse living in California, you may be interested in this specific piece of legislation and wonder what the implications are for you. 

What Is New York’s Child Victims Act?

Previously, the law in New York stated that survivors of childhood sexual abuse must come forward by age 23. The Child Victims Act now allows victims until age 55 to file a lawsuit against abusers and the institutions that shield them, with an additional one-year period for all expired claims of child sexual abuse.

New York’s Child Victims Act essentially provides two allowances:

More time to file a civil lawsuit: A key provision of the Child Victims Act opened up a one-year lookback window, allowing victims to file civil sexual abuse lawsuits against their abusers and the institutions that enabled them, regardless of how long ago the abuse occurred. After the lookback window expires on August 14, 2020, victims who were under 23 when the bill became law will be allowed to pursue civil claims until age 55.

More time to press criminal charges: This legislation extends the statute of limitations to age 28 for charging felony sexual offenses and age 25 for charging misdemeanor sexual offenses.

What Do Lookback Windows Mean for Victims?

Within the first 24 hours of the Child Victims Act being signed into effect, a tidal wave of more than 400 lawsuits flooded the courts. The list of alleged abusers included the Catholic Church, the Boy Scouts of America, coaches, teachers, school districts, doctors, hospitals, and at least one against the estate of Jeffrey Epstein. Forty-five specially trained judges have been set aside to exclusively hear the cases. Judges have been instructed to aim for speedy resolutions (within the year) and leniency in allowing anonymity for victims, though there are no guarantees.

The Child Victims Act is not the only law that has made provisions for a lookback period. 

• California previously opened a window in 2003, which resulted in a slew of 1,000 child sex abuse lawsuits revived—over 800 of them against the Catholic Church, resulting in $700 million paid to victims.
• Delaware saw 150 cases over a two-year period from 2007-2009.
• Minnesota had a three-year lookback period from 2013-2016 that resulted in Catholic dioceses petitioning for bankruptcy and close to 900 lawsuits filed. 
• Following hundreds of lawsuits filed during a 2012-2014 lookback, Hawaii currently has a second grace period passed in 2018 that extends through April 2020, where lawsuits have been won against foster care agencies, psychiatrists, and schools.

AB-218 Would Offer a Similar Lookback Period in California

California legislators are currently deciding whether to pass a three-year lookback window for child sexual abuse claims under Assembly Bill 218. The bill would also increase the maximum age of filing a civil lawsuit from 26 to 40, and extend the discovery rule period from three to five years. Also, in cases where a child becomes a victim of sexual assault as the result of an effort to cover up past assaults, AB-218 would allow a court to award recovery of treble damages against the defendant who engaged in the cover-up. 

Though Governor Jerry Brown vetoed similar legislation, advocates are hopeful Governor Gavin Newsom will be in favor of the cause, especially given the passing of similar legislation like the Child Victims Act across the country.  

Child Victims Act FAQs

Can I file a lawsuit under the Child Victims Act if the perpetrator moved out of the state of New York? Yes. Judges have already said perpetrators cannot exit the state to shield themselves from liability for past crimes. Their current residence is “irrelevant” to current claims.

Can I file a lawsuit under the Child Victims Act if I moved out of the state of New York? Yes. Typically, you must file a lawsuit in the courts where the alleged abuse took place, not the state where you currently reside. It can be challenging to facilitate legal proceedings from a distance, but you can work with a responsive local California attorney who will meet with you face-to-face as often as you need. 

What conduct falls under the Child Victims Act? You can sue for psychological or physical injuries and losses arising from any sex offense listed in Article 130 of the Penal Code that occurred before you were 18 years of age.

Who can I sue under the Child Victims Act and who pays? You can sue private and public institutions, as well as individual perpetrators and municipalities. Even though some individuals have tried to hide financial assets and entities have sought bankruptcy protection, these moves may slow down the process, but will not ultimately protect them from liability.  

What sort of evidence do I need? It can be challenging to pursue older claims in court, but we seek to build the credibility of our clients and demonstrate the measure of their suffering. Police reports and medical records can help, as can testimony to corroborate details of the plaintiff’s story. In civil court, standards are based on “a preponderance of the evidence,” which is lower than criminal court’s “beyond a reasonable doubt” threshold.

Why should I speak up now? You may have struggled with childhood sexual abuse trauma for years and not realized why. If you recently discovered a link between this trauma and the abuse you suffered in the past, seeking litigation may be one way to recover from sexual abuse.

Contact Childhood Sexual Abuse Attorneys in California

If you have any questions about recent legislation such as the Child Victims Act or about your legal options for pursuing justice in a childhood sexual assault case, contact the experienced San Francisco attorneys at Lewis & Llewellyn.

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

DISCLAIMER: The information in this blog is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this blog or on this website should be construed as legal advice from Lewis & Llewellyn LLP. Neither your receipt of information from this website, nor your use of this website to contact Lewis & Llewellyn LLP creates an attorney-client relationship between you and the firm or any of its lawyers. No reader of this website should act or refrain from acting on the basis of any information included in, or accessible through, this website without seeking the appropriate legal advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s jurisdiction.

Sexual abuse in teenage relationships can occur as one of four types of violent behaviors between intimate partners—physical violence, sexual violence, psychological aggression, and stalking. Data from the CDC’s Youth Risk Behavior Survey and the National Intimate Partner and Sexual Violence Survey shows that about one in nine female high school students and one in 36 male high school students report having experienced sexual dating violence in the last year.

For many victims of sexual abuse in teenage relationships, it can be difficult to understand that what you’re experiencing isn’t normal. Unhealthy relationships during adolescence can disrupt emotional development and contribute to long-term health effects. Violence in an adolescent relationship can also set the stage for problems in future relationships, including intimate partner violence and sexual violence perpetration and/or victimization throughout life. 

This article will discuss the laws in California regarding sex between minors, warning signs of an unhealthy relationship, sexual coercion, and what to do if you or someone you know has been sexually abused within a teenage relationship.    

The Age of Consent and Intimate Teenage Relationships 

In the state of California, the age of majority is 18. This means that by state law, anyone under the age of 18 can’t legally consent to sexual acts. In teenage relationships where sexual contact involves a minor, it can be considered statutory rape, unlawful sexual intercourse, or lewd and lascivious acts with a child. 

While California may not initiate criminal proceedings against children under 14 years of age for cases of sexual assault, “Romeo and Juliet” cases of voluntary sexual activity between two minors (ages 14-17) can be punishable as a misdemeanor offense, subject to juvenile court treatment. If found guilty, minors can be sentenced to home probation, sent to a juvenile home, or placed into foster care—the larger the age gap, the harsher the punishment. Minors can also be sued for compensation through their litigation guardian in civil court. 

If incidents of sexual abuse took place while the minor was in the care of a mandated reporter, such as at a school, that person is required by law to report the crime to the proper authorities. The Health Framework for California Public Schools requires education programs to include instruction regarding the prevention of sexual violence in dating and teaching young people how to recognize and respond safely and effectively in situations where sexual or physical violence may be occurring. 

Warning Signs of an Unhealthy Teen Relationship

It’s sometimes hard to tell if you’re in a sexually abusive relationship or an unhealthy relationship that could lead to sexual abuse. The U.S. Department of Health and Human Services cautions you to look out for these warning signs of abnormal, unhealthy relationships:

• Your partner makes decisions for you, telling you what you can or cannot do.
• Your partner continually picks fights.
• Your partner is dishonest.
• Your partner uses economic dependence to exert control and power over you.
• Your partner makes fun of you, acts disrespectful, or crosses boundaries.
• You feel you have lost a sense of your individual identity in the relationship.
• Your partner intimidates or controls you with fear.

Dating violence can be emotional, physical, or sexual in nature and occurs if your partner is:

• threatening to harm you or themselves
• calling you names, shaming, or bullying
• keeping you away from friends or family
• behaving in a jealous or controlling way
• physically abusing you
• forcing you to engage in sexual activities when you don’t want to or can’t consent
• threatening to spread rumors if you refuse to have sex
• stalking by repeatedly making unwanted contact, which makes you feel unsafe
• cyberstalking with unwanted contact through text, email, or social media

If you feel forced to agree to engage in sexual acts with your partner, even if you don’t want to, you may be a victim of sexual coercion.  

What Is Sexual Coercion?

California’s consent law says that “no means no” is not enough; consent is an affirmative “yes means yes.” When a person says “yes” to a sexual act out of fear or while under duress, intoxicated, or pressured, that is considered sexual coercion. In this case, an abuser may use tactics like threats, pressure through constant communications, trickery, isolation, the use of drugs and alcohol, or physical force to pressure someone into complying with unsought sexual activity. 

Sexual coercion can exist in many forms and take place in various situations. It can be used in relationships when a partner threatens to seek sexual pleasure from another person if their partner declines. It can occur in the workplace when a superior offers a promotion, for example, in exchange for sexual favors. Coerced sex can also be common among athletes when peers threaten to seek revenge porn or a position or playtime is revoked by a coach if a sexual relationship doesn’t continue. In situations involving human trafficking, sexual coercion can exist when victims are threatened with deportation or harm to their families.

While sexual coercion itself isn’t codified as a crime by California law, it is used in the legal definition of rape. Under California law, rape is defined as “sex through the use of force, fear, coercion, or violence.” If you were to pursue criminal charges against an abuser, a rape conviction could result in a three-, six-, or eight-year jail sentence for the perpetrator. Sentences can increase to up to 11 years when the victim is under 18 or up to 13 years when the victim is under 14 or when the defendant acted in concert with another person to commit the crime. Fines from $2,000 to $25,000 may also apply. 

In addition to pressing criminal charges, you may also file a civil lawsuit seeking financial compensation for losses related to medical bills, counseling, lost time off work, lost productivity, and an estimation of the emotional pain and suffering you have endured.

Tips for Victims of Sexual Abuse in Teenage Relationships

If you or someone you know has experienced sexual abuse during a teenage relationship, here a few tips to remain safe: 

• Trust yourself. If you have doubts or it doesn’t feel right, it isn’t.
• If you decide to stay together, avoid alone time and have a friend drive you home from events.
• If you want to break up, write down all the reasons for your own reference.
• If you feel unsafe, break up by phone or email, or in a public place with witnesses nearby.
• Set your social media profile to private and block online contact with the abuser.
• Call the police if you feel you may be in immediate danger.
• Keep a detailed record of threatening, menacing, violent, or abusive behavior. 
• Get a restraining order from the police department if you have safety concerns.
• Contact the National Teen Dating Helpline online or at 1-866-331-9474.
• You may also call the National Sexual Assault Hotline at 1-800-656-4673 if you have been raped or exposed to sexual violence. 
• Consider taking legal action as a way to recover from sexual abuse.

Contact a Sexual Abuse Attorney in California

The laws regarding sexual abuse in teenage relationships may be difficult to navigate but you don’t have to do so alone. If you believe you’ve been a victim of sexual abuse, an experienced attorney can help you seek the justice you deserve. 

The effects of sexual abuse in teenage relationships may include PTSD, anxiety, and depression that can persist for several months, several years, or even decades. These effects may surface later or worsen with time; working with an experienced attorney will help you obtain a recovery should you need to compensate for personal damages suffered as a result of the abuse. 

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.