Sexual assault is unwanted, often forceful, sexual contact. Here’s how to sue for sexual assault in California.
Suing for sexual assault can be empowering, but the suit itself may end up expensive and unsuccessful. Survivors may choose to file civil or criminal lawsuits, and under California law, have either two years to report the assault or five years in delayed discovery if the assault occurred prior to legal adulthood.
How is Sexual Assault Defined in California?
Sexual abuse is an umbrella term for illegal, often forceful, sexual conduct. If not consented, especially for minors, sexual conduct is a criminal act. Sex crimes may include:
- Rape
- Sexual abuse of a child
- Sexual battery
- Indecent exposure
Under California Penal Code, sexual battery or assault can be charged as a misdemeanor or a felony. Misdemeanor examples can include:
- Intentional fondling without consent
- Groping someone without consent
Misdemeanor offenses are punishable up to less than one year in county jail and fined up to $2,000.
Felony examples include:
- Forcefully holding, kissing, and/or unclothing someone
- Convincing a mentally incapacitated person to masturbate
- A doctors’ false claim to grope people for sexual arousal or gratification
Felony offenses can lead to imprisonment or a fine of up to $10,000.
Who Can Sue for Sexual Assault in California
Anyone who experienced unwanted sexual actions may sue for assault. Families may also bring forward a lawsuit if:
- Family members witnessed the assault (negligent infliction of emotional distress)
- The crime caused the plaintiff’s death (wrongful death suit or survivor’s action)
- Loss of consortium (inability to continue spousal or familial relationships)
Taking Action Against Sexual Abuse in California
Survivors of sexual assault may file lawsuits in civil or criminal court. However, under California’s penal code, criminal convictions and police reports are not necessary for a survivor to sue for damages.
In civil court, the justice system determines whether the survivor may receive damages from the defendant’s actions. For civil cases, the plaintiff must:
- Establish liability
- Be primarily compensated
- Meet a “preponderance of the evidence” (lower burden of proof)
The standard of “preponderance of the evidence” is less stringent and only requires the plaintiff to prove the events claimed by the survivor are more likely than not to have occurred. A civil trial only requires nine of 12 jurors to agree on the liability of the defendant.
However, civil cases may quickly become criminal depending on the state of the investigation. Criminal cases hold the plaintiff to a higher burden of proof (“beyond a reasonable doubt”), and all 12 jurors must vote unanimously to sustain the conviction.
Sex Crime Statute of Limitations in California
Under the California Civil Code of Procedure (Section 340.3), the statute of limitations is two years from the date of the assault to sue for damages.
Survivors of childhood sexual assault may sue the defendant 22 years after they turn 18 (the survivor’s 40th birthday) or under delayed discovery, which is five years from when the survivor may have discovered psychological injury caused by the assault.
Steps to Sue for Sexual Assualt in California
Filing for sexual assault in California does not require a police report, and a survivor may choose either to sue for civil or criminal damages. Sexual assault survivors may not come forward immediately due to psychological or physiological injuries. Thus, the legal action each survivor can take will vary.
After an assault, a sexual assault survivor may choose to take any or all of the following steps:
- Get to a safe place
- Call 911 or go to the police station to report the assault and ask for a criminal investigation (if the defendant is charged, the survivor may receive an order of protection)
- A sexual assault survivor may file a civil suit and potentially receive a civil protection order
- Find resources or programs either for emotional support or legal counseling
- Conduct a rape kit or medical care to collect evidence (rape kits can be performed up to 72 hours after an assault has occurred)
Though pursuing a criminal or civil lawsuit differs by state, the process, with the exception of the statutes of limitations, are largely similar. Under the California Penal Code, a person who commits sexual battery is liable for general, special, and punitive damages. The survivor may receive any relief – financial or otherwise – the court deems necessary.
1. Demand letter
A demand letter is part of the service of the process, notifying a perpetrator not only of the demands of the plaintiff but also the assault survivor’s intent to sue. For strategic reasons, an attorney may forego the letter.
2. File a criminal or civil report (Complaint)
Gather evidence. For a criminal lawsuit, rape kits provide substantial evidence for a conviction. If the report is filed at a police station, officers will ask the assault survivor to recount what happened in the incident and identify or describe the perpetrator.
During the report, someone maybe with the survivor for support. For the investigation, specific details and full transparency of what happened are crucial in aiding the case. Additionally, be clear to the investigator about the facts that the survivor remembers and doesn’t remember.
A sexual assault can be reported one of three ways:
- Phone police
- At the hospital with a Sexual Assault Response Team (SART) nurse
- Go to a police station
3. Pursue charges
If a police officer or investigator determines there is enough evidence to lay charges, an attorney provides a legal opinion on the likelihood of a conviction. However, even if police determine that the case may not result in charges, the choice to pursue a court case is up to the sexual assault survivor.
4. Service of process
If the plaintiff decides to pursue charges, a third party not involved in the case must deliver a copy of the complaint to the defense. Known as a summons, the service of the process ensures both sides have received the same information.
5. Trial Results
If the defendant is found guilty, a judge will determine the punishment. The punishment may come either in the form of damages (fines) or jail time in accordance with the California Penal Code.
FAQs About Suing for Sexual Assault in California
What are other resources for sexual assault survivors?
The Rape, Abuse & Incest National Network (RAINN) Sexual Assault Telephone Hotline connects survivors with staff members in the area of the survivor. The provider gives a survivor access to free services such as:
- Confidential support
- Local resources
- Referrals for long-term support
- Assisting in finding local health facilities trained to care for survivors
- Information of area-specific sexual assault laws
Similarly, the National Sexual Violence Resource Center connects survivors with resources and any essential information on the topic.
What is the difference between sexual assault and sexual harassment?
Sexual assault occurs when intentional physical and sexualized contacts without the other person’s consent. On the other hand, sexual harassment may be illegal under employment law, harassment is not necessarily criminalized by state law.
If a plaintiff is over 40, can the survivor still file a lawsuit in California?
Yes, a survivor who is over the age of 40 can file a lawsuit in California if they receive reports from:
- A non-partisan mental health professional attesting why the sexual assault survivor could not have discovered emotional distress earlier AND
- The plaintiff’s attorney who can claim the validity of the statement
However, the five-year delayed discovery time is still in effect and a plaintiff over 40 should seek the advice of an attorney immediately.
If a family member suspects their child to be sexually assaulted, what steps can they take?
Both RAINN and California’s Child Protective Services Agency offer resources for family members who suspect children are at risk of or a plaintiff of abuse.
Can someone be sued for defamation if they are sued for a sex crime?
Yes, but defamation lawsuits for a sex crime are uncommon. Defamation claims in California against sexual assault survivors who post their stories on social media are more liable to be sued for libel.
Does suing for sexual assault in California differ from federal cases?
The general statute of limitations in a federal case is four years, as opposed to two years, by California state law. For a minor, the statute of limitations doesn’t begin until the survivor is 25 years old.
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