Justice Delayed, But Not Denied: The New Laws Empowering Survivors of Past Sexual Assault

By Shounak Dharap

Despite a nationwide reckoning on gender violence and disparity in the wake of the Me Too movement, sexual assault remains deeply and distressingly pervasive. Over 40 percent of women—52.2 million—have reported experiencing some form of sexual violence. The number is likely much higher; because of the stigma associated with sexual abuse, it is estimated that fewer than 30 percent of survivors report the abuse. As a result, abusers and the institutions and organizations that protect them, are not held to account for the harm they have caused. 

Lawsuits Were Barred By Statutes of Limitations

Survivors who do come forward and participate in legal proceedings against their abuser often report experiencing re-traumatization and additional harm. One of the reasons for this re-traumatization is that the statute of limitations—the time within which the law requires a criminal or civil suit can be brought— historically required legal proceedings against abusers to be commenced within just a few years of the abuse. This is often too short a time for a survivor to process what happened to them, seek professional help, and frame the experience so they can move forward with their life. Simply put, the statute of limitations for sexual abuse did not allow enough time for survivors to bring their abusers to justice without the risk of suffering additional harm.

New Changes to the Law Create a Path to Pursuing Time-Barred Claims

Recent legislative changes following the Me Too movement have extended that statute of limitations. Adult survivors now have ten years from the date of the abuse to bring a civil action. But what about survivors of sexual assault from ten, fifteen, twenty years in the past? What about college students, members of faith-based congregations, or employees whose trusted institutions covered up sexual abuse or otherwise prevented the abuse from coming to light? What recourse do they have?

The new amendments to Code of Civil Procedure section 340.16, effective January 1, 2023, enact two provisions that create a path for survivors of past sexual abuse to bring civil claims in court.

  • The statute opens a window until December 31, 2026, during which any claim for damages suffered as a result of sexual assault that occurred as far back as January 1, 2009, may be revived. So even if the ten-year statute of limitations would otherwise bar the claim—for example, for sexual assault that occurred in 2011—this amendment to the statute allows the survivor until the end of 2026 to file a civil lawsuit.
  • In cases where there has been a cover-up by an institution, the statute also opens up a second window until December 31, 2023, during which claims for damages suffered as a result of a sexual assault—at any point in the past—may be revived. So even if an assault happened fifteen, twenty, or thirty years ago, if an institution covered it up, the claim can be revived and a lawsuit may be filed until the end of this year.

How the New Law Helps Protect Survivor

Take the hypothetical of a private university that employed an athletic trainer who, in 2009, sexually assaulted student-athletes during physical therapy treatments. And suppose the university hid that information from its students, promoted the trainer, laughed off complaints by students, and vehemently defended the treatment methods used by the trainer until students athletes’ were so chilled from bringing any complaints that no civil lawsuit was ever filed. Under these circumstances, section 340.16 could revive the claims of any student-athletes who did not pursue a lawsuit within the statute of limitations period.

Under the first revival provision, these survivors would have until the end of 2026 to bring their lawsuit because the assaults happened after January 1, 2009, but outside the 10-year statute of limitations window. Under the second provision, the survivors would also be able to pursue a lawsuit because their failure to bring a lawsuit was a result of the university’s cover-up.

Suppose the assaults happened even farther back in time—2005. There, the first revival provision wouldn’t apply. But under the second revival provision, they would still be able to bring their claims because of the cover up.

The Problem with Public Entity Immunity

These amendments provide a powerful new way to hold individuals and institutions accountable without allowing them to “wait out” the expiration of the statute of limitations. Still, the statutory framework has one glaring flaw in its protection of survivors’ rights—the provisions do not apply to public entities. This means that if the university in our hypothetical was a state university or a community college, for example, survivors would not be able to take advantage of the amendments to pursue claims for past sexual abuse.

The reason for this is that when you’re suing a public entity, your limitations period is extremely short: generally only six months. The Legislature has determined that, since judgments against public entities come from our tax dollars, it’s important for public entities to be able to swiftly review the facts and potential exposure of a claim, and conduct an investigation to attempt to resolve the claim while all documentary evidence and witness memories are fresh. When the Legislature enacted the amendments to section 340.16 discussed above, it chose specifically not to amend the law around public entity liability, meaning that public entities are essentially exempt from the new revival windows.

The Takeaway: Even for Long-Past Assault, You May Still Have a Claim

In a future blog post, we’ll discuss some of the other ways that you may avoid being time-barred even after your claim’s statute of limitations has run. For now, the takeaway is that if you were sexually assaulted or harassed by an individual more than ten years in the past, you may still be able to pursue a civil claim against your abuser and the institution where the abuse occurred—be it your job, school, church, etc.

Because the laws around pursuing potentially time-barred sexual abuse claims are complicated, be sure you seek the advice of an attorney. Arns Davis Law is experienced in pursuing these types of claims on behalf of survivors of sexual abuse, and our attorneys are always here to speak with you about your experience.

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