Survivors of sexual assault face tremendous power imbalances in the legal system. A new California law helps rebalance the scales.
California prides itself in its many survivor-friendly laws—and in 2019, the state announced its much-hyped 10-year statute of limitations for civil remedies for adult survivors of sexual assault. In our experience, too many survivors, like the case explained below, have not benefited from this 2019 law despite its enormous promise … yet.
Civil remedies—where the alleged perpetrator is sued by the survivor directly, regardless of whether they were charged by the criminal justice system—have been in increased limelight in recent years. Biases against survivors stubbornly persist—in society, in policing and in the criminal system. These biases severely impact racial minorities and gender minorities, and many survivors’ path to healing does not involve police, prosecutors or related systems (at least not on the fixed timelines these systems demand of survivors).
“[The] two-year statute of limitations simply does not provide sexual assault survivors adequate time to heal from the physical and emotional trauma of a sexual assault and prepare for a civil case,” deduced the California legislature when it passed CCP 340.16 in 2019.
The Disappointments Were in the Details
The original 2019 law was a huge step forward in recognizing the impact of sexual abuse and providing access to justice. California initiated a 10-year statute of limitations for adult survivors of sexual assault, meaning that survivors had 10 years to file a civil claim from the date of the abuse. And in some cases, where there is “delayed discovery” of the injury from the assault, survivors had three years from this discovery of an injury or illness which resulted.
This was a substantial shift from previous law, which did not acknowledge the myriad of challenges that survivors experience in processing their experience and choosing to hold their abusers accountable. Instead, victims were previously held to the general statutes of limitations for battery, which is two years, or domestic violence, which is three years in California.
Even for the best-intentioned legislation, the devil is in the details. The new law stated it applied to actions “commenced on or after Jan. 1, 2019,” but left room for debates of interpretation: Did the assault need to have also taken place on or after 2019? So argued some defendants’ attorneys.
Indeed, most laws are not retroactive, in that they are not created to govern acts that took place before there is a law related to those actions. However, in creating this new statute of limitations, the legislature seemed to be doing just that. Alas, the law did not explicitly clarify, leaving room for deep debates—about whether it was meant to apply retroactively, whether it contained “revival” language (see Quarry v. Doe I (2012) 53 Cal.4th 945), or whether it created a new cause of action.
Take Milli’s (pseudonym) case. Milli was sexually assaulted by her massage therapist while seeking routine health and wellness services at a spa in 2012. Milli, feeling vulnerable, shocked and shamed, left the business without reporting the assault right away. All she wanted to do was put it behind her and pretend it never happened.
But Milli’s entire pattern of behavior was altered. She ceased seeking the therapeutic massage altogether. She changed all of her medical providers to women She avoided spaces and places where she was around men she did not know. She lived her life with hypervigilance and constant fear. This impacted her sleep, her eating, her mood, her friendships and her relationship with her spouse.
Years later in 2020, after years of denial and its life-altering impact, Milli made the connection between her assault and the damage it had done to her life. Milli reported the assault and learned she had civil options to seek justice.
So now, speaking with her victim attorneys, does Milli have 10 years from 2012, thus till 2022, to file suit? Or is she out of luck because the assault for which she wishes to sue in 2020 did not take place after the law went into effect?
These various contestations and varied interpretations resulted in unequal application of the statute and conflicting court rulings. While some challenges worked their way through the Court of Appeals, advocates set out on a legislative fix.
Intent on preventing further denial of justice for clients like Milli, co-author Jessica Dayton spearheaded, with the firm of ADZ Law, LLP, and several other sexual assault attorneys and advocates—including California Sexual Assault Forensic Examiners, Valor U.S., Equal Rights Advocates, Family Violence Appellate Project, California Partnership to End Domestic Violence and Rape Trauma Services—to enact legislation that would spell out the obvious meaning of 2019’s law: that any adult survivors of assault dating back to Jan. 1, 2009, could access justice through suing the perpetrator and any entity responsible for the perpetrator.
Clarity and Renewed Hope for Closure: Sexual Abuse and Cover Up Accountability Act
Assemblymember Buffy Wicks sponsored A.B. 2777, introduced in September of last year, which clarified the original intent of CCP 340.16. It was important to the attorney advocates that the bill be represented by the true survivors and victims’ advocates in the field. California Sexual Assault Forensic Examiners, Valor U.S., Equal Rights Advocates, Family Violence Appellate Project, California Partnership to End Domestic Violence and Rape Trauma Services all signed on in support.
The bill received support from both Democratic and Republican legislators and was signed by Gov. Gavin Newsom on Sept. 19, 2022. The resulting legislation, known as the Sexual Abuse and Cover Up Accountability Act (2022 Cal. Legis. Serv. Ch. 442 (A.B. 2777), addresses and clarifies the 10-year statute of limitations under CCP 340.16.
As of Jan. 1, 2023, CCP 340.16 clearly outlines that the 10-year statute of limitations applies retroactively to sexual assaults that occurred before the statute was first enacted on Jan. 1, 2019. To rectify prior confusion, the amended statute provides for a three-year window—until Dec. 31, 2025—wherein survivors can file their civil claims for sexual assaults that occurred on or after Jan. 1, 2009.
A second facet of the bill provides an option for accountability for entities who tried to cover up occurrences of sexual assault, who, through their own negligence, intentional acts or vicarious liability, are responsible for a sexual assault and then covered it up, meaning, actively hid evidence to keep the assault secret. This could be an employer, a corporation or other entity in a position of power over the victim. This aspect of the bill was a direct response to the #MeToo movement and the increasing recognition of the power imbalance present in sexual assaults and how those in power use it to silence the victim-survivor. To that end, the amended 340.16 also carves out a one-year window—until Dec. 1, 2023—for survivors to file a claim that would otherwise be time barred, regardless of when the assault occurred, if the assault was covered up by an entity.
Both windows do not apply to cases that have been already settled or litigated to final decision. In other words, these windows affect new cases a survivor may file or ongoing cases that are currently pending a decision.
For Milli, this means a chance at justice—an opportunity to seek accountability for the years of suffering caused by the abuse. Accessing the civil justice system allows Milli to take back the power she lost when she was sexually assaulted. And she is able to do so more along the timeline of her own healing.
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