New Route to Justice for Victims of Childhood Sexual Assault

Any victim of childhood sexual assault in California may now litigate his or her claim, unless they already pursued the claim and it resulted in a settlement or judgment.
California Assembly Bill 218 signed into law October, 2019.

Strategy without tactics is the slowest route to victory. Tactics without strategy is the noise before defeat

Sun Tsu

There are many reasons why victims of sexual abuse, particularly children, do not come forward and report the abuse at all or do so decades after the fact. Oftentimes, the abuser is a respected member of the community, and the victim feels that no one will believe that such a person could have done such a horrible thing. The perpetrator may have threatened the victim with severe repercussions if he or she were to tell anyone what happened. There are feelings of guilt and shame that often accompany sexual abuse and make coming forward incredibly difficult. With child victims, their parents are sometimes closely aligned with the perpetrator and cannot bring themselves to believe that the abuse occurred, so they don’t step in and act as advocates for their children.

When these realities collide with strict time limits within which civil lawsuits must be brought, there is a real impediment to achieving justice for sexual abuse victims. Over the years, the statutes of limitations for sexual abuse lawsuits have been extended in various ways, but recent changes in the law are the most dramatic effort yet by the California legislature to recognize the serious hurdles that stand in the way of victims coming forward and seeking justice.

Assembly Bill 218, which applies to claims of childhood sexual abuse (now referred to as “sexual assault”), amends Code of Civil Procedure section 340.1 in the following key ways:

  1. The bill creates a three-year window (from January 1, 2020 to December 31, 2022) in which victims may bring claims for childhood sexual assault, no matter when the abuse occurred, as long as their claims were not previously “litigated to finality.” This “revival” period applies not just to statutes of limitations to file lawsuits, but also to deadlines for filing claims against governmental entities and “any other time limit.” See Code of Civil Procedure § 340.1(q). In short, any victim of childhood sexual assault in California may now litigate his or her claim, unless they already pursued the claim and it resulted in a settlement or judgment.
  2. Going forward, the new deadline to file a lawsuit for childhood sexual assault is when the victim reaches age 40 (formerly age 26) or within five years (formerly three years) of when the victim discovers or reasonably should have discovered that psychological injury was caused by the sexual assault, whichever is later. See Code of Civil Procedure section 340.1(a).
  3. If the victim can prove that the sexual assault “was as the result of a cover-up,” he or she may recover treble damages against any defendant who is found to have covered up the sexual assault of a minor. “Cover up” is defined as “a concerted effort to hide evidence relating to childhood sexual assault.” See Code of Civil Procedure section 340.1(b). The parameters of this provision will likely have to be fleshed out in appellate opinions, but it would seem to apply most clearly to situations in which a single perpetrator assaulted multiple victims, the employer of the perpetrator hid evidence about the abuse and then more victims were subsequently assaulted. In cases where plaintiffs seek treble damages and there is at least arguably evidence of a cover-up, defendants will be under tremendous pressure to settle rather than risk enormous jury verdicts.

For victims who were sexually assaulted as adults, the statute of limitations is set forth in Code of Civil Procedure section 340.16 and is the later of: (a) within 10 years from the date of the last act of sexual assault or (b) within 3 years of when the plaintiff discovers or reasonably should have discovered that psychological injury was caused by the sexual assault. Section 340.16 was enacted in 2018. Previously, sexual assault claims involving adult victims were governed by the normal two-year statute of limitations for personal injury cases set forth in Code of Civil Procedure section 335.1.

It is important to understand that “sexual assault,” as defined in sections 340.1 and 340.16, does not require an act of violence. It includes myriad acts that violate a number of enumerated Penal Code sections, including sexual acts between adults and minors and non- consensual sexual acts.

Since the Governor signed AB 218 in mid-October, we have been contacted by a number of victims of sexual assault seeking justice. In cases where the assault occurred decades ago, there are obviously problems of proof – witnesses and relevant documents may be long gone. In most of these cases, in order for there to be any chance of recovering significant damages, the plaintiff needs to prove that an institution (such as a school or church) negligently allowed the perpetrator to commit his heinous acts. Proving this sort of negligence is difficult under the best of circumstances and significantly more difficult when many years have passed. Nevertheless, we strongly believe that there are many sexual assault victims with viable cases who can benefit from this new law.

From our own practice, we know of many cases that we have turned down, because of statute of limitations problems, that would now be viable, and we are reviewing our records to identify these cases. We would encourage other firms to do the same.

Booth & Koskoff has a long history of success in difficult sexual abuse cases. Last year we obtained what we believe to be the largest settlement ever in California for a single victim of sexual abuse.

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Since 1984, Booth & Koskoff has represented plaintiffs who have suffered catastrophic injuries, sexual or physical abuse or the death of a loved one. The firm has obtained over 90 jury verdicts and settlements in excess of $1 million.