Expectations of litigating sexual abuse cases under the Child Victims Act – AB 218

A critical legal timeline is nearing an end for survivors of childhood sexual assault in California. The Child Victims Act – also known as AB 218 – is the legislature’s acknowledgement that children who were victims of sexual abuse carry trauma not immediately recognizable. Unfortunately, many survivors do not understand the depth of their trauma until they are well into adulthood and beyond the statute of limitations for sexual assault.

AB 218 provided reprieve by creating a “look-back window” and allowed survivors to file claims for past sexual abuse that occured during childhood. This “window” opened on Jan. 1, 2020 and is set to close Dec. 31, 2022. Sexual assault cases often come with higher expectations of the handling attorneys because of the sensitive nature of the claim. With the expiration of the “window” nearing, attorneys should be aware of what to expect when litigating these cases so that clients receive the representation they need and deserve.

Understand the Law

This should be fairly obvious – but is worth emphasizing! It is crucial to understand the new law and prepare in advance to filing a lawsuit to avoid missteps that may cause your client to lose their right to file again.

AB 218 made major amendments to then-existing laws. First, as mentioned earlier, it created a “look-back window.” Specifically, the new law reads “Notwithstanding any other provision of law, any claim for damages [for childhood sexual assault by any person or entity] that has not been litigated to finality and that would otherwise be barred as of Jan. 1, 2020 because the applicable … time limit deadline had expired, is revived…” California Code of Civil Procedure §340.1(q). This monumental change provided a second chance at closure to survivors who were otherwise time-barred from asserting legal claims against their abusers.

Second, the bill extended the statute of limitations to “…22 years from the date the plaintiff attains the age of majority or within 5 years of the date the plaintiff discovers or reasonably should have discovered that the psychological injury or illness occurring after the age of majority was caused by sexual assault, whichever is later.” California Code of Civil Procedure §340.1(a).

Third, the bill empowered the courts to provide treble damages against a defendant who is determined to have covered up the sexual assault of a minor. This is particularly important and a signal to institutions to live up to their duties to minors. As many institutions have seen that patterns of abuse and assault could jeopardize their entire organizations, those in charge often attempt to conceal the problem or ignore it and hope it “goes away” on its own. These methods historically included firing the offender, assigning offenders to another position within the organization, or even intimidating the victim and threatening against any retaliation. AB 218 has heightened the damages awarded against these actors to dissuade such behavior. California Code of Civil Procedure §340.1(b).

Furthermore, it impacts the correlation with the Government Claims Act. While California Government Code §905(m) excludes the requirement of presenting a tort claim to a local entity prior to filing suit, the same is not true for claims against the State. During the look back period, claims previously time barred due to the failure to present a claim to the State are now permitted. California Code of Civil Procedure §340.1(q). However, be certain to present your claim to the State before moving forward with filing your lawsuit.

Finally, the bill expands the definition of childhood sexual abuse, which will instead be referred to as “childhood sexual assault.” California Code of Civil Procedure §340.1(d). This changes how confidentiality provisions are handled.

Any act that occurred, for example, while in the care of a government agency or at a public school, is subject to these new parameters. Examples of assault and abuse now include:

Exhibitionism or exposing oneself

Fondling

Intercourse

Masturbating in the presence of a victim, or forcing the victim to masturbate

Obscene phone calls or text messages

Producing or owning child pornography

However, these changes do not mean that an attorney is ready to file the lawsuit. There still remain steps required to be taken prior to filing a sexual assault claim and time is of the essence, now more than ever. For example, for those who are over the age of 40, a certification of merit is still mandatory pursuant to California Code of Civil Procedure §340.1(f). And a certification must be attached for each defendant named in the complaint. This can require a significant amount of time as the client may be reliving the abuse for the first time in decades and need time to process before being ready to initiate a lawsuit.

Be Prepared to Revisit Pain and Be a Shoulder

The change to the law and the urgency around timing will put the client in a precarious situation. The litigation process can be long, often lasting longer than a year. A claimant will likely revisit past traumas repeatedly throughout the life of the lawsuit and even after. This may beg the need for time so the client can cope and digest the traumas as if they were happening in real time. What if the client was one of many who survived abuse at an institution or under the failed care of an agency or authority, and a larger mass action is filed? How will the client respond to being one of many John or Jane Does instead of a sole plaintiff?

Consequently, attorneys must be equipped with the resources to ensure the client is emotionally and mentally prepared to pursue a claim and shoulder the trauma throughout litigation. Not only will the attorney need to provide this emotional support, but the client should be willing to receive mental health support from a professional while asserting legal claims and thereafter. It is crucial for attorneys to proceed with absolute sensitivity and respect, while evaluating a potential claim and obtaining answers to difficult questions.

Often, the client will need their legal representative to be a shoulder – they are, after all, bearing a trauma to a stranger. Injury attorneys should be accustomed to this de facto role. It would be a disservice to accept any case without providing some emotional support for the client. If you find yourself unable to do so due to time constraints, it may be beneficial to refer the matter to a peer experienced in these types of cases who can offer a deeper level of service.

What to Expect After Filing a Lawsuit

It is not uncommon for individuals or institutions defending against sexual assault claims to use the same defenses over and over. For example, a defendant will almost certainly claim there was no notice of sexual assault in an attempt to wash their hands clean of any liability. Or claim that it was sufficient to reassign the perpetrator to another position within the organization so that the claimant was no longer at risk.

The best way to prepare for these defenses is to be thorough and exhaustive in your investigations and research. Was the institution on notice of other claims of sexual assault within the organization and failed to take any steps to ensure it wasn’t happening elsewhere? Were reports of suspicious behavior ignored? Were threats made to those who courageously reported assault or suspicions of assault? Sometimes a basic Google search will yield information that you otherwise would not have had. Other times, it is in your client’s best interest to team up with attorneys who have similar clients or have litigated against these defendants in the past and have a more robust archive of information from which to pull information and leads.

While no dollar amount can fully compensate the pain and suffering borne of sexual assault, these claims serve to help survivors and their families heal and recover from the trauma. The resolution also sends a message to the defendant and other institutions that such acts do not go unpunished, and a financial consequence will arise, even if a criminal conviction does not satisfy justice.

Sexual abuse and assault matters require time, organization and the trust of a client. With the clock ticking on the three-year look-back window, lawyers need to gather as much evidence and seek alliances wherever possible to secure justice for their clients in 2022 and beyond.

Mike Arias is the managing partner of Arias Sanguinetti Wang & Torrijos LLP and was co-liaison counsel for the plaintiffs in the Does v. USC and Tyndall case – which resulted in the largest known settlement in a sexual abuse case in U.S. history. Sahar Malek is a senior associate and trial attorney at Arias Sanguinetti Wang & Torrijos LLP.