The revival of adult sexual assault claims

In October 2017, the front page of the New York Times published a story about how powerful Hollywood producer Harvey Weinstein had sexually assaulted and raped actress Rose McGowan. Actresses Ashley Judd and Gwyneth Paltrow also described their own sexual encounters with Weinstein. Jodi Kantor, the investigative reporter for the Times, had serious challenges getting the survivors of Weinstein's sexual assault to speak with her for fear of career blowback. Weinstein was a powerful gatekeeper in Hollywood with money and access. He could destroy their careers if he got wind they spoke to the press or filed a lawsuit. After the Times published the story, over eighty other women came forward with their own allegations against Weinstein, igniting the #MeToo movement.

Most of these women's claims had expired under the then-existing two-year statute of limitations for assault. Many survivors delayed filing timely claims for fear of retaliation. In the immediate aftermath of the #MeToo movement, California passed laws to allow survivors of sexual assault to bring lapsed claims for everyone but the survivors who launched the #MeToo movement. In 2019, California passed AB 218 - reviving lapsed claims for childhood sex abuse. But AB 218 would not have helped the survivors of Weinstein's sexual assault because nearly all of them were adults at the time of their injuries. In 2018, California passed another bill, AB 1619, which extended the statute of limitations for adult sexual assault from two years to ten years. See Stats. 2018, ch. 939, § 1. This bill did not revive any expired claims, which meant that if the assault occurred more than two years before Jan. 1, 2019 - as many of Weinstein's assaults did - the claims had expired. In fact, all the allegations described in the New York Times' seminal article had expired by the time AB 1619 passed. In 2019, California passed a bill reviving claims for sexual assault solely arising out of the University of Southern California scandal. This bill revived claims for sexual assault "by a physician occurring at a student health center." See Stats. 2019, ch. 462, § 1. By its express terms, this bill would not have helped any of the Weinstein survivors.

Five years after the seminal article launching the #MeToo movement, on Sept. 19, Governor Gavin Newsom signed a bill enacting a generally-applicable revival statute for survivors of adult sexual assault. See Stats. 2022, ch. 442 (A.B. No. 2777). This bill is unprecedented in California history. Under the Sexual Abuse and Cover Up Accountability Act, all claims for damages suffered as a result of a sexual assault that occurred on or after Jan. 1, 2009 are revived as long as the claim is filed by the end of 2026. The legislative findings cite all the reasons it is so difficult for survivors of adult sexual assault to go public with their claims, or even know they are survivors. The Legislature found that "60 percent of survivors did not label their experience as 'rape'" and "[w]omen may not define a victimization as a rape or sexual assault for many reasons such as self-blame, embarrassment, not clearly understanding the legal definition of the terms, or not wanting to define someone they know who victimized them as a rapist or because others blame them for their sexual assault." See Stats. 2022, ch. 442, § 2(e), (f). For these reasons, the Legislature found that the "unique nature of the emotional and psychological consequences of sexual assault, especially on women, can paradoxically permit wrongdoers to escape civil accountability unless statutes of limitation are crafted to prevent this injustice from occurring." Id. at § 2(h). In particular, the Legislature intended to prevent a cover-up from allowing the statute of limitations to expire on a survivor.

The Sexual Abuse and Cover Up Accountability Act (SACUA) is broad and far-reaching. It revives personal injury claims against the perpetrator and any institutional defendant for sexual assault that occurred in the past thirteen years so long as a claim is filed by the end of 2026. Id. at § 3 (amending Cal. Code Civ. Proc. § 340.16(b)(3)). And if an organization "covered up" any sexual assaults, SACUA revives any and all claims no matter how far back they occurred, so long as the claim is filed by the end of 2023. Id. at § 3 (amending Cal. Code Civ. Proc. § 340.16(e)). SACUA defines "cover up" broadly. A cover up includes a "concerted effort to hide evidence relating to a sexual assault that incentivizes individuals to remain silent or prevents information relating to a sexual assault from becoming public or being disclosed to the plaintiff." Id. (amending Cal. Code Civ. Proc. § 340.16(e)(4)(A)). Indeed, such cover-up efforts expressly include previously commonplace and ubiquitous practices - the "use of nondisclosure agreements or confidentiality agreements." Id. Therefore, businesses that have historically used nondisclosure and confidentiality agreements in settlements with sexual assault survivors have exposed themselves to the risk of a revived claim for any other survivor of a person's sexual misconduct no matter when such misconduct occurred.

The most common setting for the use of nondisclosure and confidentiality agreements in sexual assault claims is the employment setting. SACUA expressly applies to and revives employment claims, too. That is, SACUA revives sexual assault claims for sexual assault that took place at any time against any employer that engaged in a cover up. Specifically, any employer that engaged in a cover up - including through the use of nondisclosure and confidentiality agreements - may be liable for any "related [revived] claims, including but not limited to, wrongful termination and sexual harassment, arising out of the sexual assault." Id. (amending Cal. Code Civ. Proc. § 340.16(e)(5)). Historically, Silicon Valley's tech companies and Hollywood (including Weinstein) consistently used these silencing agreements as part of sexual harassment settlements.

As the New York Times said in its seminal article, "Mr. Weinstein enforced a code of silence... Most of the women accepting payouts agreed to confidentiality clauses..." While California law has now banned the practice, companies will be haunted under SACUA by their decades-long use of these clauses in settlements involving sexual assaults. Such settlements may now be used as substantive evidence that tech companies, Hollywood, and other employers engaged in a "cover up," thereby extending the statute of limitations for virtually any employment or tort claim against them.

SACUA is sweeping in scope and unprecedented. For the first time in California's history, it revives adult sexual assault claims. And if there's a cover-up broadly defined to include the use of confidentiality and nondisclosure agreements, it revives any employment sexual assault claim, too. Nearly five years after the Weinstein scandal ignited the #MeToo movement, California has finally enacted a revival bill for survivors of Weinstein's sexual assault.