This post was written before the passage of AB-218. For information regarding the statute of limitations for filing a civil lawsuit for childhood sexual assault/abuse, click here or contact our team of experienced representatives.
California is among the most progressive states when it comes to enacting laws against sexual assault. In 2014, it was the first state in the nation to pass a bill clearly defining sexual assault. The California Affirmative Consent Law (Senate Bill 967) established a new standard: “Yes Means Yes,” rather than “No Means No.” While some defendants may like to use the defense that binge drinking and partying on college campuses creates an “acceptable culture of rape,” the law is clear. Further, the law states judges can no longer grant probation or suspend prison sentences when victims were unconscious or intoxicated.
When you work with the attorneys at Lewis & Llewellyn in San Francisco, we evaluate the merits of your case based on sexual assault laws to determine whether our representation can benefit you. Filing a sexual assault lawsuit is a potentially lucrative and healing path to take, but it’s not an easy one. Our team of experience attorneys work hard to stay steps ahead of the defense.
While the standard of proof is lower in civil court compared to criminal court, we still must prove that your case meets the definition of sexual assault, the sexual activities were not consensual, you’re within the statute of limitations, and the accused is not protected by a signed agreement or shield law. If we are filing suit against a mandatory reporter, we must prove the individual neglected their duty of care.
Continue reading to learn more about California laws pertaining to sexual assault and contact our experienced team of sexual assault attorneys with any questions you have. Even if you’re not certain you have strong grounds to sue, it’s always worth speaking with an expert to explore your legal options.
1. Laws Against Sexual Assault and Rape
California law describes different types of sexual assault, which are subject to different criminal penalties:
Rape
According to Penal Code 261 (PC 261), rape occurs when a person:
- engages in sexual intercourse with someone who is unwilling or unable to consent.
- uses physical force, violence, duress, threats, or fraud to control the victim.
Rape is subject to California’s “Three Strikes Law,” which can lead to life in prison for a repeatable offense. First-timer offenders can be punished with three, six, or eight years in prison. Sentencing increases to seven, nine, or 11 years for victims under 18. Rapists face up to 13 years in jail for crimes committed against victims under 14.
Rape kits are not always necessary to secure a sexual assault conviction, but they do help considerably. According to the Survivor’s Bill of Rights (2016) which amended the 1984 Victims of Crime Act, sexual assault survivors must not be prevented from receiving a free forensic medical examination. You have a right to rape kit preservation for 20 years (or up to the statute of limitations, whichever comes first), and must receive written notification prior to the destruction of the sexual assault evidence collection kit.
Sexual Battery
According to PC 234.4, sexual battery occurs when a person:
- engages in unwanted touching of another person’s intimate parts with skin-to-skin contact or through clothing.
- restrains the victim.
- commits assault for the purpose of sexual arousal, gratification, or abuse.
Perpetrators can be charged with a misdemeanor or felony, depending on the severity of the crime—with misdemeanors punishable by up to six months in jail and fines of up to $2,000, and felonies punishable by one to four years in prison and fines up to $10,000. Those convicted of sexual battery must register as sex offenders.
Other forms of sexual assault outlined in California Penal Codes include forcible penetration, sodomy, and oral copulation by force.
2. Consent Laws
Consent is broadly defined by California PC 261.6 as “positive cooperation in act or attitude pursuant to an exercise of free will.” By law, “The person must act freely and voluntarily and have knowledge of the nature of the act.”
Victim-blaming is a common tactic used in sexual assault cases. The perpetrator’s defense may suggest that the sexual assault survivor pursued sexual contact, consented at the time, or “asked for it” based on manner of dress or behavior.
There are several specific laws we can use to refute these baseless claims:
Affirmative Consent
(SB 967)
The State of California recognizes an “affirmative consent” standard, where both parties must give affirmative, conscious, and voluntary agreement to sexual activity. “Lack of protest or resistance does not mean consent, nor does silence mean consent,” according to the law. Consent can never be given under “pressure, duress, menace, threat, or coercion.” Further, affirmative consent must be ongoing and can be revoked at any time. Assumptions of consent may not be based upon: past sexual relations, a dating relationship, intoxication with drugs/alcohol/medication, reckless behavior, unconsciousness, or impairment by a mental or physical condition. College campuses receiving state funds must adopt formal policies based on this law and investigate the evidence around sexual assault complaints occurring on their properties.
Carnal Abuse of Children
(PC 261.5)
According to state law, minors under age 18 cannot provide consent to sexual activity. It is unlawful for any adult over 18 years of age to engage in intercourse with a minor under 18 years of age. If the perpetrator is less than three years older than the minor, it is deemed a misdemeanor. If the perpetrator is more than three years older, it can be considered a misdemeanor or a felony, depending on the nature of the case. Perpetrators age 21 or older engaging in acts with minors under 16 can be subject to imprisonment for up to four years for unlawful sexual activity. Fines range from $2,000 to $25,000, depending on the age gap.
Crimes Against Public Decency and Morals
(PC 261)
California law defines rape in situations where a person is incapable of giving consent “because of a mental disorder or developmental or physical disability,” and “this is known or reasonably should be known to the person committing the act.” Incompetent people who have sex consciously and willingly may be deemed “unable to give legitimate consent,” given their mental or developmental disabilities.
3. Statute of Limitations Laws
Statute of limitations laws are designed to protect the rights of the accused to a fair hearing or trial based on evidence. The idea is that the quality of evidence, witness testimony, and other crucial components of the case degrades over time.
The following is a list that features crimes that don’t have a statute of limitations:
- murder in connection with another felony, multiple murders, murder with bombs or poison, murder with torture, murder connected with gang activity, and murder of a law enforcement officer, firefighter, witness, judge, prosecutor, or jury member
- treason against the state or interference with war preparations leading to death
- perjury leading to execution of an innocent person
- sabotaging a train, leading to death
- assault with a deadly weapon and committing murder while imprisoned
- embezzlement of public money
- crimes against minors
Criminal Statute of Limitations in California
Most recently, sexual assault has been added to this list after the enactment of California SB 813. The passing of this bill means that:
- Anyone who was sexually assaulted on or after January 1st, 2017 has an unlimited amount of time to press criminal charges against an alleged perpetrator.
- For sexual assaults occurring before January 1st, 2017, there is a 10-year window to press criminal charges.
Civil Statute of Limitations in California
The statute of limitations are different for civil suits, where financial compensation is sought. In civil cases:
- Victims may have as little as six months to file a claim against a government entity.
- Generally, most victims of sexual assault have up to two years to file their lawsuit.
- Minors have up to eight years after reaching the age of majority (until age 26) to sue.
- When the damage is not immediately discovered, victims have up to three years after the discovery of harm to file a lawsuit under California’s “Delayed Discovery” rule.
There is still hope for many survivors of sexual assault, even if the case seemingly falls outside the customary statute of limitations. For instance, PC 803 allows up to a year to file a lawsuit if DNA evidence was collected and analyzed within two years of the offense—even past the statute of limitations. The statute can also be tolled if you were hospitalized or otherwise incapacitated by your injuries.
4. Mandatory Reporting Laws
The perpetrator may not be the only person liable for sexual assault. Civil courts allow the opportunity to hold third parties liable for failing to take reasonable steps to prevent sexual assault. The Child Abuse and Neglect Reporting Act (PC 11165) requires mandated reporters to contact the local police department, county welfare department, or county juvenile probation department immediately upon “knowledge of” or “reasonable suspicion of” sexual abuse of children under age 18. A formal report must also be submitted via Form SS 8572 within 36 hours.
Reports must be made for instances of:
- grooming
- oral copulation
- lewd/lascivious acts
- incest
- penetration
- sodomy
- rape
- sexual touching
- exploitation
- pornography
- exhibitionism
- prostitution
- physical abuse
- neglect
- emotional maltreatment
The list of mandatory reporters in California includes (but is not limited to) school teachers and staff, administrative officers and supervisors of child welfare and attendance, day care employees, youth camp, public assistance and social services workers, medical care professionals, and foster parents.
Businesses that employ mandated reporters must encourage mandatory reporting, have all employees sign a written statement that they understand their lawful responsibilities within four weeks of their start date, provide optional online or DVD training to help employees comprehend their obligations, and provide a supervisor to assist in reporting if necessary.
Criminal punishments for failure to report include up to six months in jail and fines of up to $1,000 for minor offenses and up to one year in jail and fines up to $5,000 in cases of grievous bodily harm or death. Above and beyond these criminal penalties, non-reporters can also be sued for damages and subject to compensate victims for medical expenses, loss of wages or earning capacity, emotional pain and suffering, disability, or funeral/burial expenses for families of the deceased.
Other Considerations
Schools and colleges are subject to laws requiring mandatory reporting and victim services:
- Title IX (1972): Every school must have a Title IX coordinator in charge of managing complaints and investigating reports of sexual assault. The school is required by law to conduct an investigation within 60 days of receiving a complaint and must provide a final decision in writing. Students have the right to appeal any decision. As a survivor of sexual assault, you have the right to physical safety, protection from discrimination, and the pursuance of justice. You also have the right to be informed of options to notify law enforcement, outcomes of disciplinary proceedings, counseling services available, and have an option to change academic courses or living situations.
- Clery Act (1990): All schools receiving federal financial aid must report on crimes such as murder, robbery, aggravated assault, burglary, motor vehicle theft, arson, arrest, and sexual assaults to federal government databases for the compiling of crime statistics. They must maintain a campus crime log with at least 60 days’ worth of data and provide an annual security report.
Nursing home staff, health practitioners, clergy members, county agents, and law enforcement personnel are subject to:
- California Welfare & Institution Code 15630-15632 (Elder Abuse & Dependent Adult Abuse Civil Protection Act): Anyone who has assumed full or intermittent responsibility for care or custody of a dependent adult or elder—whether compensated directly or not—is considered a mandated reporter for physical and sexual abuse. Serious bodily injury must be reported to the local police or state social service workers within two hours and non-urgent matters must be reported within two working days.
5. Confidentiality Laws
Pursuing a lawsuit may heighten concerns you have about privacy, safety, and the ability to successfully pursue justice. There are a number of laws and court precedents governing confidentiality in California sexual assault cases.
Privacy
As a survivor of sexual assault, you have the right to shield your identity from the public when filing a claim. While secret settlements were banned with the passing of SB 820 as of January 1, 2019, this does not affect your right to confidential proceedings that protect your identity, the amount received, and all facts that could reveal your identity from the public’s eye.
Protection
Marsy’s Law grants sexual assault victims the right:
- To be treated with fairness and respect, with privacy and dignity, free of intimidation, harassment, and abuse throughout the criminal justice process.
- To be reasonably protected from the defendant, with safety provided for the victim’s family in fixing bail and determining release conditions.
- To prevent the disclosure of medical records and confidential information to the defendant or defendant’s attorney, which could be used to locate or harass the victim.
- To refuse interviews, depositions, or discovery requests from the defendant.
- To be notified and heard upon request of any pertinent details of the case, including the filing of charges, parole or release, pleas, sentencing, extradition, and conviction.
- To a speedy trial and prompt conclusion of proceedings.
- To restitution for losses suffered, as allowed by law.
California Evidence Code 1035 further defines “privileged communications” and court protocol for the release of information.
Non-Disclosure Agreements
If you signed a confidentiality or non-disclosure agreement (NDA) prior to the sexual assault, you may still be able to file a lawsuit. NDAs were one of the tools used by sexual predators like Hollywood producer Harvey Weinstein to “save face” in the court of public opinion and maintain an air of secrecy surrounding their unlawful activities.
Even if you signed such an agreement, these flimsy attempts at deflecting personal responsibility have little to no bearing in court. Some California courts may even rule in favor of “procedural unconscionability” if you were coerced into signing such an agreement.
An experienced attorney may also argue that NDAs are “contrary to public policy,” as the federal circuit courts have ruled against employers barring employees from cooperating with the Equal Employment Opportunity Commission in the past.
The National Labor Relations Act further protects your right to engage in “concerted activities” for “mutual aid or protection,” so you can’t face retaliation for speaking out against sexual predators in the workplace.
6. Public Entity Immunity Laws
Anyone who works for a local, state, or federal government, agency, department, or board is considered a “public entity” or “public employee.” You may still sue these third parties in the court of law for sexual assault, but a different set of laws may apply if the defendant is:
- a government body
- school district
- transit authority
- police department
- fire department
- post office
These entities are protected from “frivolous” lawsuits by the California Tort Claims Act, which states:
- You must file a written claim with the entity’s governing body within six months of the assault—unless you are a minor, were subject to an administrative mistake, were mentally incapacitated, or are filing on behalf of a deceased claimant.
- The board must allow or deny the claim within 45 days. If the claim is rejected, you have up to six months from the date of notification to file a lawsuit in civil court.
Third parties like school districts are commonly sued for negligent hiring, training, and retention; failure to report; failure to adhere to state and local laws; and failure to exercise duty of care. Public entities may be found wholly or partially liable for your medical bills, therapy, wage losses, and emotional pain and suffering.
An Experienced Attorney Takes All Sexual Assault Laws Into Account
It can be challenging to decide whether to press criminal charges or file a civil suit. If you’ve already decided, there is still a legal maze of paperwork in figuring out how sexual assault laws in California may impact your case. Whether you are an adult victim or the parent of a victimized child, the aftermath of sexual abuse may take you through the full gamut of emotions—but you don’t have to go through it alone. An experienced legal representative can act as your advocate, providing counsel and empowering control over the course of the proceedings.
Working with a California attorney who specializes in sexual abuse cases is about more than legal advice and paperwork. Lawyers can also point you in the right direction for seeking medical attention, connecting with crisis social workers and counselors, dealing with insurance issues, and getting your life back in the wake of disturbing events that were beyond your control.
The attorneys at Lewis & Llewellyn have spoken to and helped scores of survivors of sexual abuse. The members of our firm are engaged advocates for social justice with ties to local outreach and survivor support groups. You deserve to have a compassionate advocate who believes will navigate these complex systems on your behalf. Contact us today, or call +1 (415) 800-0590 to set up a free initial consultation.
DISCLAIMER: The information in this blog is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this blog or on this website should be construed as legal advice from Lewis & Llewellyn LLP. Neither your receipt of information from this website, nor your use of this website to contact Lewis & Llewellyn LLP creates an attorney-client relationship between you and the firm or any of its lawyers. No reader of this website should act or refrain from acting on the basis of any information included in, or accessible through, this website without seeking the appropriate legal advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s jurisdiction.
