an Altair Law Blog Post by Mariah Ogden and Andje Medina
Sexual assault leaves lingering trauma that is difficult to process at any age, especially when the assault occurs when the individual is a minor. It takes an insurmountable amount of courage for survivors of childhood sexual assault to come forward and hold perpetrators civilly accountable for their actions. In California, preexisting childhood sexual abuse law provided a limited timeframe, otherwise known as statute of limitations, to file a civil lawsuit against individuals or entities, limiting a survivor’s ability to file a lawsuit. The California Legislature recently provided a recourse for childhood sexual assault survivors by enacting The California Child Victims Act, known as AB 218, to empower childhood sexual assault survivors to obtain justice through civil lawsuits against individuals or entities for recovery of damages from childhood sexual abuse.
WHAT IS AB 218?
Effective January 1, 2020, AB 218 amends preexisting law surrounding childhood sexual assault to ensure that survivors can hold their abusers accountable. As outlined in detail below, AB 218 expands the definition of sexual assault, extends the statute of limitations for child sexual abuse survivors to file a lawsuit against their abusers, revives previously time barred claims, expands prohibition of confidentiality provisions in settlement agreements related to civil childhood sexual assault actions, allows individuals to seek three times the amount of actual damages when the abuse was covered up, and removes a time sensitive procedural hurdle for filing lawsuits against a local public entity.
EXPANDING THE DEFINITION OF CHILDHOOD SEXUAL ASSAULT
AB 218 expands the definition of childhood sexual assault in California Code of Civil Procedure § 340.1 to include sexual contact as defined by California Penal Code § 311.4(d) and now recognizes childhood sexual abuse as childhood sexual assault.
EXTENSION OF STATUTE OF LIMITATIONS
As Andje and I have experienced while litigating sexual assault cases, each individual processes sexual assault related trauma differently and no survivor’s experience or trauma is the same. Recognizing and processing trauma suffered from childhood sexual assault is rarely a linear process for survivors and the full extent of the trauma may not be uncovered until years after the statute of limitations has passed, permanently barring any civil action for liability. Under the new law, survivors of childhood sexual assault can now initiate a civil lawsuit to recover damages until the later of either the survivor’s 40th birthday or 5 years after the psychological injury was discovered or reasonably should have been discovered. After turning 40, a plaintiff can only file a lawsuit against a person or entity for intentionally or negligently causing the childhood sexual assault that caused the injury if the person or entity either knew, had reason to know, or was otherwise put on notice of any misconduct that created a risk of childhood sexual assault by an employee, volunteer, representative, or agent, or the person or entity failed to take reasonable steps or implement reasonable safeguards to avoid acts of childhood sexual assault. This extension gives survivors additional time to address their trauma and come forward when they are ready, instead of when the law requires survivors to be ready.
REVIVING PREVIOUSLY TIME BARRED CLAIMS
AB 218 revives certain childhood sexual assault actions that were not litigated to finality and would otherwise been barred as of January 1, 2020 due to lapsed statute of limitations, claim presentation deadline, or other timeline.
Beginning January 1, 2020, survivors have a three-year period to file previously time barred civil lawsuits against their abuser, regardless of the survivors’ age or when the assault took place.
PROHIBITION OF CONFIDENTIALITY PROVISIONS IN SETTLEMENT AGREEMENTS
Strict confidentiality provisions are common in sexual assault settlements and can often restrict a survivor’s ability to openly share their story without fear of financial repercussions. The new law expands preexisting prohibitions on confidentiality provisions, prohibiting the inclusion of confidentiality provisions in settlement agreements of childhood sexual assault claims that prevent the survivor from disclosing factual information related to civil action for any act of childhood sexual abuse. This expansion protects survivors by ensuring that they will not be silenced by the responsible perpetrator.
TREBLE DAMAGES FOR COVER UPS
Further harm and victimizing of child sexual assault survivors is amplified when survivors learn their assault has resulted from a deliberate cover up by an individual or entity entrusted to care for the vulnerable minor. Under AB 218, the cover up can be punished in addition to the crime, as plaintiffs are permitted to recover up to three times the amount of actual damages if they can prove that the defendant covered up the sexual assault of a minor, defined as a concerted effort to hide evidence related to sexual assault.
However, public entities may be immune from liability under the Government Claims Act for treble damages awarded for proven cover ups under section 340.1 when the awarded treble damages are considered punitive damages. In one instance, the court struck down treble damages awarded to plaintiff, despite the public entity defendant’s proven cover up of sexual assault. See Los Angeles Unified School Dist. V. Superior Court (2021) 64 Cal.App.5th 549. The court held that the public entity defendant maintained sovereign immunity under the Government Claims Act from treble damages because the damages were punitive in nature, with the sole purpose to punish the defendant rather than to compensate the plaintiff. Id. at 567. The court further held that when treble damages in section 340.1 fulfill a legitimate and fully justified compensatory function despite having a punitive aspect, the awarded damages are not regarded as punitive, and the public entity defendant is liable for the injuries that the damages serve to compensate. Id.
GOVERNMENT TORT CLAIM EXEMPTION
Under AB 218, a plaintiff making a claim for damages suffered as a result of childhood sexual assault against a local public entity is not required to adhere to the Government Tort Claims Act claim presentation requirement prior to filing suit against the responsible entity. An individual may immediately file a civil suit against the local public entity, which removes one more hurdle to overcome to obtain closure.
CONCLUSION
AB 218 is a monumental victory for childhood sexual assault victims in California. This legislation allows renewed opportunities for clients to revive previously expired childhood sexual assault claims against their abusers, additional time to seek civil justice against their abuser through the modified extension of the statute of limitations, expands prohibition of confidentiality provisions in settlement agreements, and removes the public entity claim presentation procedural hurdle so that childhood sexual assault survivors’ voices are amplified, rather than silenced.
Mariah Ogden is an associate and Andje Medina is a partner at Altair Law, located in San Francisco, California. Mariah and Andje have experience litigating sexual assault cases and routinely represent survivors of sexual assault, government claims, premises liability, auto accidents, brain injuries, and dangerous property.
