How to File a Lawsuit for Rape or Sexual Assault

Sexual assault prohibits another person from touching the intimate parts of another person without that person’s consent for the purposes of sexual gratification¹.

Rape – Penal code 261 pc is nonconsensual sexual intercourse that is accomplished by threat, force, or fraud or with a vicitm who is incapable of consenting².

Although these are criminal offenses, these elements may be introduced by a personal injury attorney in a civil claim for damages even if the defendant has not been charged or convicted of the offense or offenses.

In This Guide We’ll Cover:

Who Can File A Lawsuit?

Anyone who was raped or assaulted can bring a civil case against the perpetrator.

Example

Rape – Penal Code 261
Sodomy
Forced oral copulation
Date rape
Any sexual penetration, no matter how slight
Use of an object to achieve penetration into the genital or anal area
Lewd or lascivious acts on a child
Intentionally touching the genitals or intimate parts for sexual arousal or gratification
Intentional masturbation of perpetrator’s genitals in the presence of a child
Indecent exposure such as masturbating in your presence

A person of either gender can bring a claim and it is irrelevant if both the perpetrator and victim are of the same sex.

Can the Families of Victims Sue For Damages?

Families of the victim can sue for damages if they witnessed the assault by bringing an action for either negligent or intentional infliction of emotional distress.

Generally, the conduct must be extreme and outrageous and have caused severe emotional distress³.

The outrageous conduct must also have either been directed at the plaintiff or committed in the presence of the plaintiff and the defendant was aware of the person’s presence⁴.

The Defendant Must Have Owed a Duty to The Victim

For negligent infliction of emotional distress to be claimed by a family member who witnessed the attack, there must have been a duty owed to the plaintiff by the defendant that arose out of a preexisting relationship⁵.

For example, the defendant was a:

Priest, pastor or rabbi,
Health care worker,
Coach, or
Physician.

In addition, if the victim sustained fatal injuries as a result, then the family may bring a wrongful death claim against the perpetrator.

Damages That Can be Received by an Injured Party

If you are able to prove your allegations of rape or sexual assault in a civil trial, then you may be entitled to damages so long as you also prove your damages.

Damages in Sexual Assault Cases May Include:

Past and future medical expenses
Past and future wage loss
Loss of earning capacity
Emotional trauma and distress
Cost of psychological counseling
Pain and suffering
Diminished enjoyment of life
Any permanent disability or disfigurement
Spousal claim for loss of consortium
Punitive damages

What Are Punitive Damages?

Punitive damages are designed to punish the defendant and to deter it and others from similar conduct in the future.

Under California law, to recover punitive damages you need to prove that the defendant’s conduct constituted malice, oppression or fraud⁶.

Definition of Malice

Malice is intentional conduct that is considered despicable or is far from normal behavior and which is done with wilful disregard for the rights or safety of others⁷. Malice can certainly be found in a rape or sexual assault.

Definition of Oppressive Conduct

Oppressive conduct is also despicable conduct that subjects a person to cruel hardship and with conscious disregard for that person’s rights or safety.

Kidnapping or holding you against your will might qualify as oppressive conduct.

Definition of Fraud in Regard to Punitive Damages

Fraud is an intentional misrepresentation of a material fact that is done with the intent to deprive a person of property or other legal rights and causes injury.

Raping or sexually assaulting anyone is an obvious example of malicious or oppressive conduct.

However, collecting damages from a private party may be difficult since rape and assault are intentional acts that most homeowner’s policies will not cover. Punitive damages are never covered by insurance.

Can Other People or Entities Be Sued?

Under some circumstances, other people or entities can be sued if you were a victim of rape or sexual assault.

If you were assaulted by a co-worker, coach, or teacher, then the institution or business may have failed to conduct a background check of the perpetrator, failed to report the incident to law enforcement, or neglected to take steps to remove the perpetrator or otherwise provide a safe environment for its students, guests, or employees.

Example Of An Institution Being Sued

In the Larry Nasser case where he was convicted of sexually assaulting multiple female athletes, many of whom were college and Olympic gymnasts, he as well as his employers, Michigan State University and USA Gymnastics, was sued.

At least one gymnast has also sued the USOC, or the U.S. Olympic Committee. A suit of this kind could also name individual members of the university and USA Gymnastics if it could have been shown that they were aware of Dr. Nasser’s conduct and did nothing to stop it. Michigan State recently settled all claims against it for $500 million.

Connie Francis Sued Howard Johnson Motor Inn

In a case involving the singer Connie Francis who was raped at knife point at a Howard Johnson Motor Inn in 1974, she sued Howard Johnson Motor Lodges for failing to provide her a safe and secure room.

In 1976, a jury awarded her $2.6 million, the largest such award of its kind at that time.

Her husband was also awarded $150,000 for loss of consortium.

Catholic Church

The Catholic Church has been embroiled for years in numerous cases of priests assaulting young boys and by accusations that the church hierarchy covered up complaints and did little to nothing to prevent the perpetrators from continuing to assault others.

In 2003, the Boston Archdiocese settled more than 500 claims of sexual assault by its priests and for concealment of the crimes and identity of the perpetrators by church officials by agreeing to pay $157 million. In 2007, the Los Angeles Archdiocese settled 508 complaints of sexual misconduct by priests under its authority for $660 million.

In these and other claims, businesses and institutions are usually alleged to have failed to conduct proper background checks, to not report complaints to authorities, or by not taking adequate steps to remove or prevent the individual or individuals from causing further harm.

Criminal Prosecution vs. Civil Lawsuit for Rape or Sexual Assault

Does the Defendant Need to be Found Guilty in Criminal Court First?

An important question is does the defendant need to be found guilty in criminal court for a civil case to go forward?

There is no bar to your bringing a civil lawsuit for rape or sexual assault if the defendant was either not prosecuted for the act or acts or even found not guilty after a jury trial.

O.J. Simpson Case is an Example

For instance, O.J. Simpson, who was found not guilty for the murders of his wife, Nicole Brown Simpson and Ron L. Goldman, was found civilly liable for their murders.

The judge ordered Simpson to pay compensatory damages of 8.5 million to the Goldman family and punitive damages of $25 million to both families.

Further, there is no requirement that you must first have filed a criminal complaint or that you even reported it to the police or other authorities.

In many incidents of rape and sexual assault, the victim is reluctant to report the crime.

The perpetrator may be a boss, spouse or a person with substantial credibility for which such accusations may not be believed.

There are cases where victims have suffered abuse for months or years and were fearful of bringing charges since they may not be believed and/or would suffer retribution at the hands of the perpetrator.

What if a Prosecutor Does Not File Criminal Charges?

Sometimes, a prosecutor will decline to prosecute since the evidence may be weak. But if this occurs, victims should not give up.

If you file a lawsuit, your attorney can conduct his or her own investigation in a manner that may be more intensive and comprehensive such as taking depositions, uncovering emails, or interviewing witnesses who may have been reluctant to talk to police.

Differences in Burden of Proof

For a criminal prosecution, the burden is on the state to prove that the defendant committed the offense beyond a reasonable doubt. This generally means that if it is just as likely that the defendant committed the crime as not, then he or she must be found not guilty since there is reasonable doubt.

In a civil case, the burden is on the victim or plaintiff to prove by a preponderance of the evidence that the defendant raped or assaulted the victim. This is a lesser standard of proof, which essentially means that the evidence weighs more in your favor than against it.

Statute of Limitations

If you were raped or assaulted as an adult, you have 2-years in which to file a civil lawsuit against a private party or entity⁸. If the claim is against a governmental entity, you must file a claim with the responsible entity within 6-months of the incident, subject to some exceptions.

Statute Of Limitations For Minor

In California, the statute of limitations for bringing a civil suit for rape or sexual assault against a minor is 8-years from the time the victim turns 18⁹.

In some cases, however, you can file within 3-years after you discover or should have discovered the psychological abuse or damage that the assault or rape caused. This rule came about because many victims who were raped as minors suppress memories of the event or do not experience the trauma until years after the event.

In such cases and if you are now over the age of 26, you will need Certificates of Merit from:

A health care professional who has not treated you and who can attest to a credible reason why you could not have discovered the harm earlier and,
Your attorney can attest that he/she has reviewed the findings of the health care professional and found the claim to have merit.

Steps to Preserve Evidence If You Have Been Raped or Sexually Assaulted

If you have been a victim of rape or sexual assault, you will need immediate medical attention. Let the health care professional know that you were raped so that a rape kit that is used to collect DNA and other evidence can be used to confirm the assault and to identify or to confirm the identity of the perpetrator.

If law enforcement has not yet been contacted, then the health professional will do that for you.

If i did not go to the Hospital Immediately

If you did not go immediately to the hospital or medical clinic, do not take a shower or bath and refrain from changing your clothes, using the restroom, combing your hair, or disturbing the area where the assault took place.

Where Should Clothes be Placed?

If you need to change your clothes, then place them in a plastic bag and bring them with you to the hospital or clinic. In most cases, DNA evidence must be collected within 72 hours of the assault.

Should I have a Forensic Medical Examination?

You should agree to a sexual assault forensic medical examination to increase the chances that the perpetrator will be arrested and prosecuted since it preserves evidence. It can also protect your health since you may have sustained injuries that are not readily apparent.

What Types of Questions will the Nurse ask me?

Be prepared for detailed questioning by the nurse or physician during the exam.

For example, you will be asked personal questions about any recent consensual activity as well as details of the assault and what areas of your body sustained injuries or where on your body that evidence could be obtained. Be sure to answer all questions truthfully and fully.

Your examination will be extensive and will require samples of your blood, urine, hair and possibly other parts of your body as well as examinations of your mouth, vagina, and anus if applicable.

There may also be evidence of the rape or assault in emails or social media sites. If you knew the defendant, he or she may have confessed to the assault in an email to you or mentioned it in a post on social media.

Footnotes

Penal Code § 243.4 [↩]
Penal Code § 261 [↩]
Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1614 [↩]
Christensen v. Superior Court (1991) 54 Cal.3d 868, 903-904 [↩]
Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1076 [↩]
Civil Code § 3294 [↩]
Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299 [↩]
California Code of Civil Procedure 335.1 [↩]
California Code of Civil Procedure 340.1 [↩]