How victims of sexual assault can file a lawsuit

Victims of sexual assault or sexual abuse have the right to sue their perpetrator for damages. Any type of sex crime can serve as the basis for a lawsuit. Common acts that lead to sexual assault lawsuits include (but are not limited to):

• Rape,
• Sexual abuse of a child,
• Groping (sexual battery),
• Indecent exposure,
• Sexual assault by ride share drivers,
• Sexual assault by doctors or physicians, or
• Any other non-consensual act of a sexual nature.

It is not necessary that the defendant be convicted of a crime first or even charged with one. As long as the plaintiff has suffered damages as the result of a non-consensual act, he or she can file suit.

Victims of sexual assault may be entitled to both compensatory damages and punitive damages. Plaintiffs may seek to recover damages for:

• Medical bills,
• Psychological counseling,
• Lost wages,
• Lost earning capacity,
• Pain and suffering,
• Loss of enjoyment of life,
• Scarring,
• Insomnia,
• Anxiety, and/or
• Emotional distress or trauma.

Spouses and registered domestic partners of sexual assault victims may also be able to sue for loss of consortium (if they have suffered a loss of companionship, moral support and/or intimacy as a result of the perpetrator’s actions).

To help you better understand civil lawsuits for sexual assault, our California personal injury lawyers discuss the following, below:

• 1. Who can sue for sexual assault, abuse or battery?
• 2. Do I need to file criminal charges or can I just file a lawsuit?
• 3. What is the burden of proof in a civil lawsuit for sexual assault?
• 4. How long do I have to bring a civil lawsuit for sexual assault or abuse?
  • 4.1. Statute of limitations for sexual assault of an adult
  • 4.2. Statute of limitations for childhood sexual abuse or assault
• 5. Can another party be held responsible?
• 6. What are defenses to civil charges of sexual assault?
• 7. Can I recover punitive damages in a sexual assault lawsuit?
• 8. Can I be sued for defamation if I sue someone for a sex crime?
• 9. What should I do if I suspect that someone has assaulted or abused my child?
• 10. What should I do if I have been raped?

You may also wish to read our article on “Lawsuits by Crime Victims.”

1. Who can sue for sexual assault, abuse or battery in California?

Anyone who has been the victim of unwanted touching or an unwanted sexual act can sue for damages.

Families of victims may also be able to sue if:

• They witnessed the assault, in which case they may have an action for negligent infliction of emotional distress;
• The assault or abuse resulted in the victim’s death, in which case the victim’s family or heirs may be able to bring a suit for wrongful death or a survivor’s action on behalf of the victim’s estate; or
• The assault resulted in a loss of companionship, moral support and/or intimacy to a spouse or registered domestic partner (loss of consortium).

2. Do I need to file criminal charges first or can I just file a lawsuit?

California law does not require a criminal conviction or even a police report for victims of crime to sue for damages.

Victims of sexual assault or abuse may be afraid to report the crime to the police. They may fear that no one will believe them or that they will be blamed for what happened.

Most police officers in California will treat a sexual assault victim with dignity. And an investigation is often helpful, even if no criminal charges get filed. It can help turn up evidence that might be useful in a lawsuit. And going to the police can help bolster the victim’s credibility in the civil case.

We know that victims may get discouraged when they report a sexual assault and the District Attorney elects not to bring charges or take the case to trial or when the D.A. accepts a plea bargain to a lesser charge. Or the victim may have experienced the assault or abuse too long ago to make a good case.

But just because the prosecutor wouldn’t bring charges or couldn’t secure a conviction, this does not necessarily mean a victim should not sue.

With a civil lawsuit, the victim is actually a party to the proceedings. He or she gets to decide whether to move forward and whether or not to settle a case out of court. And because there is a lower burden of proof in a civil case, the case may still be viable.

3. What is the burden of proof in a civil lawsuit for sexual assault?

In a criminal trial, the prosecution must prove guilt “beyond a reasonable doubt.” This can be difficult to do in sexual assault cases, where consent or lack of it is often difficult to prove.

But in a civil lawsuit, the plaintiff need only establish liability by a “preponderance of the evidence.” This means that the jury must simply determine that it is “more likely than not” that the defendant sexually assaulted or abused the plaintiff.

This does not mean that a plaintiff will automatically win if there is a “he said / she said” situation. But it does mean that the jury can find the defendant liable if it finds it even a little more likely (51%) that the plaintiff’s version of what happened is true.

Moreover, in a criminal trial, all 12 jurors must agree on the defendant’s guilt in order to sustain a conviction.

In a civil trial, on the other hand, it takes just nine of the 12 jurors to agree that the defendant is liable.

4. How long do I have to bring a civil lawsuit for sexual assault or abuse?

4.1. Statute of limitations for sexual assault of an adult in California

People who were adults at the time of a sexual assault have two years from the date of the assault to sue for damages.¹

Note that this is often a shorter period than the statute of limitations for prosecuting the defendant’s actions as a crime.

People who do not file their lawsuit within this two-year period may lose their right to sue, even if the defendant is eventually prosecuted.

However, if felony criminal charges are brought and the defendant is convicted, the victim has one year from the date on which the judgment is pronounced to file suit – even if the claim would otherwise be time-barred.²

4.2. Statute of limitations for childhood sexual abuse or assault

A victim of childhood sexual assault or abuse may file a lawsuit in California until the later of:

• The victim’s 40th birthday, or
• 5 years from when the victim discovers, or reasonably should have discovered, that a psychological injury or illness which occurred after the victim turned 18 was, in fact, caused by the sexual assault or abuse (“delayed discovery”).³

If the plaintiff is over the age of 40, the plaintiff will need to obtain certificates of merits from:

1. A mental health professional who has not treated the plaintiff, stating that there is a valid reason why the plaintiff could not have discovered the harm sooner, and
2. The plaintiff’s attorney, stating that the lawyer has reviewed the case and the findings of the mental health professional and determined that a claim is meritorious.

Because the mental health professional must examine the plaintiff and the lawyer must review that person’s findings and the factual basis for the suit, it may take some time to get the required certification.

The five-year “delayed discovery” is not tolled (suspended) during this period.

Therefore, potential plaintiffs who are, or will be, 40 soon should contact a California injury lawyer as soon as possible to prevent their claim from becoming time-barred.

5. Can another party be held responsible?

When we think of sexual assault, we usually think in terms of a victim and a perpetrator.

But the law imposes liability on anyone who violates a duty of care in California if that party’s negligence causes injury to another.

This means that if a sexual assault occurred because of someone else’s negligence, that party may be liable.

Example: Several of the residents in Jane’s apartment complex complain to the management that the locks to the building are broken. Management ignores the reports. Jane is later sexually assaulted in the garage. She sues the building owner and property liability insurer and recovers $500,000 in damages.

Example: Lyle goes to a hardcore punk concert with his older brother. While he is there he is harassed by a group of kids who question his sexuality. Some of the other boys stick their hands down his pants and grope him to “see if he really is a man.” Lyle is humiliated. He sues the concert promoter because its failure to hire adequate security led to Lyle being sexually battered.

Example: Kevin’s daughter attends a school for special needs children. He determines that one of the teacher’s aides has been exposing himself to his daughter. Kevin’s California personal injury attorney learns that the school did not conduct a proper background check on the aide. Kevin brings suit against the school and the school district for damages and an injunction forcing the district to change its hiring practices.

Example: Susan, a student at a public university, is sexually assaulted by a faculty member. She files suit under Title 9 based on the school’s policies that enabled the campus sexual assault to take place.

6. What are some defenses to civil charges of sexual assault?

Common defenses to civil charges of sexual assault include (but are not limited to):

• The defendant didn’t do it (plaintiff is lying or mistaken);
• The lawsuit is filed too late (and thus barred by the statute of limitations);
• No sexual act took place; or
• The encounter was consensual.⁴

But even consent has limits. If the defendant went outside the boundaries of what was consented to, it may still count as sexual assault.

For instance, a plaintiff may agree to sex but require that the other person use a condom. If the other person proceeds to have unprotected sex, or otherwise exceeds the boundaries of consent, it may constitute sexual assault.⁵

7. Can I recover punitive damages in a sexual assault lawsuit?

Yes. California Civil Code 3294 allows plaintiffs to recover punitive damages if they prove the defendant acted with oppression, fraud, or malice. Punitive damages serve “for the sake of example and by way of punishing the defendant.”

Civil Code 3294(c) (1) provides:

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.

(3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

This definition often applies in sexual assault cases because the defendant has usually acted with a willful disregard of the plaintiff’s rights.⁶

8. Can I be sued for defamation if I sue someone for a sex crime?

Unfortunately, yes, although suits for harm to reputation are less common in the context of a lawsuit by the victim of a crime. Defamation claims in California are more common than when posting a story on social media (for instance, as part of the #MeToo movement).

This is just one reason why going to the police after an assault can be advantageous, even if charges are never brought. At the very least, it can help if victims of sexual assault tell someone right away and, in cases of rape, undergo rape kit testing.

We also advise our clients not to post details of an alleged sexual assault on social media, tempting though it may be. If you want to participate, we recommend not disclosing specifics that would identify the perpetrator. Focus instead on how the encounter made you feel.

A lawyer can help you assess the risk of a suit and whether suing for damages is the best approach for dealing with your pain.

9. What should I do if I suspect that someone has assaulted or abused my child?

The Rape and Incest National Network (RAINN) offers tips on what to do if you suspect a child is being harmed.

Alternatively, you can contact California’s Child Protective Services Agency to report the abuse.

The agency provides services to children and their families when children are victims of, or at risk of, abuse, neglect, exploitation, or parental absence.

You can also call the Childhelp National Abuse Hotline at (1-800) 4-A-Child (800.422.4453). The hotline is staffed 24/7.

Our office also offers free consultations to discuss possible claims for civil damages in case of childhood sexual abuse.

10. What should I do if I have been raped?

RAINN offers tips on “steps you can take after sexual assault”. Their website includes information on:

• Receiving medical attention
• Reporting options
• Getting a rape kit done.

The most important things are to seek immediate help and to preserve evidence, even if you don’t think you will want to press charges or file a lawsuit for damages.

You may change your mind later. Having the evidence preserved can give you some peace of mind knowing that you are not locked into a decision.

Were you a victim of sexual assault or abuse?

If you or someone you know has been damaged by sexual assault or abuse we invite you to contact us for a free consultation.

You may also find helpful information on our pages on how to apply for victim restitution from a California criminal court, or prepare to testify as a witness at trial.

In Nevada? See our article about lawsuits by rape victims in Nevada.

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