Sexual abuse survivor? You decide what happens next.

Many people see sexual assault or abuse as a solely criminal matter, but these wrongful acts may also be classified as “intentional torts,” a type of personal injury claim. In addition to pursuing criminal charges to penalize the perpetrator, a victim may also file a civil case for sexual battery, assault and battery, or intentional infliction of emotional distress.

Typically, civil lawsuits are meant to compensate the victim and his or her family for damages incurred, but in cases of rape or sexual battery, a civil suit may provide victims a sense of justice when criminal prosecution is not pursued, or not successful. One reason is that the burden of proof is lower in civil court; rather than needing proof beyond a reasonable doubt, the plaintiff only needs to persuade the judge or jury that the claim is more likely to be true than not.

Types of Sexual Assault/Abuse Civil Cases

• Child sexual abuse by clergy, teacher, or leader of an organization, such as the Boy Scouts of America or daycare
• Patient sexual abuse by doctor, nurse, staff at a hospital or nursing home
• Rape and sexual abuse or harassment in the workplace
• Rape or sexual abuse in a rideshare service, such as Uber or Lyft
• Rape or sexual battery on a school or college campus

Statutes of Limitations

In most states, there are statutes of limitations on how long a lawsuit may be filed after an assault. However, in 2019, 22 states extended their statutes of limitations for certain sexual crimes, many of them to benefit victims of child sexual abuse.

In terms of civil law, it used to be if you were over 18 at the time of the assault, you have two years to file a civil claim in California. It used to be that adult victims of childhood sex abuse could only file a claim for civil damages up to eight years after reaching the "age of majority" – so for most people, age 26 – or, within three years discovering that your psychological injury was caused by the sexual abuse.

In October 2019, California Governor Gavin Newsom signed a new statute placing the age limitation at 40, and increasing the discovery period to five years. Assembly Bill 218 also opened a 3-year window setting aside all civil statutes of limitations on child sex abuse.

In terms of criminal cases, new California law eliminates the statute of limitations on rape altogether, when the assault took place after January 1, 2017, regardless of the age of the victim.

All statutes of limitations on sex crimes vary from state to state, so if you are considering filing such a lawsuit, you may want to call an attorney to help clarify your rights.

Evidence in Cases of Sexual Abuse or Assault

Often, sexual assault and sexual abuse victims don’t come forward because the case appears to be a matter of “my word against their word,” and the perpetrator is in a position of power. For example, the Catholic Church, the Southern Baptist Church, and the Boy Scouts of America have used their influence to make sexual assault and abuse cases simply go away. They are not the only only organizations who use their influence to cover up sex crimes. Many adults and children have been sexually victimized by powerful figures in the entertainment industry as well.

However, an increasing number of sexual crime victims have prevailed against their attackers and abusers in both criminal and civil courts. Prosecutors and personal injury lawyers are learning more about evidence that can be used to gain an upper hand in these cases.

There are four common defenses that sexual perpetrators use to avoid responsibility for their actions. For each one, there is a strategy that lawyers can use to prevail:

Denial: "It never happened." To counter this argument, use evidence that establishes that there was sexual contact. This could be medical records, items of clothing with DNA, witness testimony, photographs, video or audio recordings.

Identity: "It wasn't me." Anything that  can identify the suspect, such as fingerprints, DNA samples or other physical evidence is useful here. This could be DNA from the suspect on the victim’s clothing or property. It could be the victim’s DNA on the suspect’s clothing or property. Other physical evidence from the crime scene, such as fingerprints or matching fibers may be used. Again, photo, video or audio recordings or witness statements can help also.

Consent: "He/she initiated or wanted sexual contact." There may be evidence that the suspect used threats, coercion or force, such as witness testimony, video or audio recordings, email or text exchanges, or even medical evidence like bruises or lacerations. Additionally, if you were under the age of consent, or unable to consent due to unconsciousness or impairment, evidence of that can be used.

Impeachment by Contradiction: This is when the suspect or witnesses change their story, or add details later. For example, the assault victim may recall something that they initially blocked due to trauma or shock. Conversely, the suspect may say something different in a deposition or police interview that may contradict what he or she said initially. These revelations can create a stronger case for the victim and weaken the case for the suspect.

Other types of evidence in sexual assault or abuse cases:

• Witness testimony of someone who either saw the abuse or events leading up to or following it.
• Testimony of someone who experienced the same abuse by the same person.
• Testimony by someone to whom the abuser confessed. This happens more often than people think.
• Witness testimony of a person who was told about the abuse by the victim when it happened.
• Medical records that document physical or emotional trauma from the time of the abuse.
• Witness testimony of people who noticed changes in behavior like nightmares, sudden withdrawal or depression, phobias, anxiety, etc.
• Any physical evidence that may still contain DNA.
• Any type of evidence that corroborates the victim’s claims: for instance, memories of a particular room, vehicle, or location that is unique to the event.

Resources for Victims of Rape or Sexual Abuse

• • RAINN (Rape, Abuse & Incest National Network)
  • CALCASA (California Coalition Against Sexual Assault)
  • NSVRC (National Sexual Violence Resource Center)

At TorkLaw, we are committed to helping victims of sexual misconduct find justice. If you are a survivor of sexual abuse, assault, or harassment, we will advocate for you and fight for your right to be treated with respect. Call us at 888.845.9696 today for a FREE consultation.