On October 13, 2019, the Governor signed into law AB 218, which significantly extends the statute of limitations period for individuals to file civil lawsuits for childhood sexual abuse against persons and entities. Similar legislation was passed by the California Assembly and Senate last year (AB 3120), and in 2013 (SB 131), but the legislation was vetoed by Governor Brown.
Under existing law, the statute of limitations period for filing a civil lawsuit seeking recovery for damages suffered as the result of childhood sexual abuse against a person or entity is the later of: (1) 8 years after the individual reaches the age of majority or; (2) within 3 years of the date the individual discovers or reasonably should have discovered that the psychological injury or illness occurring after the age of majority was caused by sexual abuse.
AB 218 expands the definition of childhood sexual abuse, and instead refers to this as childhood sexual assault. AB 218 also increases the time limit for an individual to bring a civil lawsuit initiating an action to recover damages suffered as a result of childhood sexual assault to the later of: (1) 22 years after reaching the age of majority; or (2) 5 years of the date the individual discovers or reasonably should have discovered that the psychological injury or illness occurring after the age of majority was caused by the childhood sexual assault.
The law further provides that in an action for liability against a person or entity for intentionally or negligently causing the childhood sexual assault that resulted in the injury, the action may not be commenced after the plaintiff’s 40th birthday “unless the person or entity knew or had reason to know, or was otherwise on notice, of any misconduct that creates a risk of childhood sexual assault by an employee, volunteer, representative, or agent, or the person or entity failed to take reasonable steps or to implement reasonable safeguards to avoid acts of childhood sexual assault.” The law states that “providing or requiring counseling is not sufficient, in and of itself, to constitute a reasonable step or reasonable safeguard.”
AB 218 allows courts to compel a defendant to pay up to three times the amount of actual damages to a plaintiff if an attempted cover up of the childhood sexual assault was involved, unless prohibited by another law. A “cover up” is defined as “a concerted effort to hide evidence relating to childhood sexual assault.”
AB 218 provides a three-year lookback window for previously expired claims. AB 218 states that for any claims for damages in which the statute of limitations would otherwise be barred as of January 1, 2020, the time limit is now extended, and may be commenced within the later of: (1) three (3) years from January 1, 2020; or (2) the statute of limitations period established by this new law.
(AB 218 amends Sections 340.1 and 1002 of the Code of Civil Procedure, and amends Section 905 of the Government Code, relating to childhood sexual assault.)
LCW Practice Advisor: One of the effects of the #MeToo movement is that more people are coming forward and reporting claims of sexual assault that occurred in the past, sometimes even decades ago. In light of AB 218, it will be easier for individuals alleging childhood sexual assault to establish that the conduct occurred within the significantly expanded statute of limitations period. Further, AB 218 provides a three-year lookback window, which will allow individuals to assert previously lapsed claims.
AB 218 does not change our advice regarding best practices for appropriately responding to student sexual assault claims and reducing liability. It is important for schools to be pro-active in safeguarding students, which includes complying with criminal background check requirements for employees and volunteers, ensuring proper supervision of students at school and during school sponsored events and field trips, and having robust, written, conduct policies that protect students. Any time a school receives a report that a student under the age of 18 was subject to sexual assault by another individual, the school employee or administrator who received the report is required by law to make a mandated report.
It is also important for schools to promptly investigate reports of student sexual assault, although these investigations should be coordinated with law enforcement when there is a pending criminal investigation. When schools receive reports from current or former students that they were sexually assaulted, it is critical for schools to investigate if there are allegations that: (1) the conduct took place at school or a school sponsored event; 2) a school employee was made aware of the conduct but did not take appropriate action, or (3) the conduct was by a school employee or current student. If the claim involves conduct that allegedly took place a long time ago, the school should find out who its insurance company was at the time in question so it knows who to tender a claim to in the event of a lawsuit.
Although it can be more difficult to investigate claims by former students if the reported conduct took place many years ago, it is important to investigate these claims regardless of how much time has passed. If any of the key individuals involved in the former student’s complaint are still members of the school community, the school should take prompt action to investigate in order to prevent future misconduct. For example, if the claim is against a teacher who is still employed by the school, the school should investigate the complaint because it is possible that the teacher could still be engaging in misconduct with others. In other cases, if the allegation is against a former employee, it is still important to investigate what occurred in order to determine whether any current employee or administrator had knowledge at the time about the misconduct and failed to take appropriate action.
If you have any questions about AB 218, and its impacts, please reach out to one of our attorneys at LCW.