Statute of Limitations

Are you within the time allowed for bringing a suit? States vary widely on this issue; many states have extended the statute of limitations for child sexual abuse in recognition of the fact that so many survivors only recover memories or only realize what the abuse did to their lives many decades after the abuse. California law currently (2002) allows survivors to file suit anytime before their 26th birthday or within three years of the time they discover or reasonably should have discovered that their psychological injuries were caused by the abuse, whichever date is later.

California Code of Civil Procedure Section 340.1, which contains the statute of limitations for childhood sexual abuse cases, has been recently amended, effective January 1, 2003. It allows any person to make their claim and file their lawsuit against the person or entities who are responsible for committing or allowing the sexual abuse to occur, so long as the lawsuit is filed during the year 2003! It does not matter that you may have been previously provided with legal advice that your claim was barred by the statute of limitations; if you file your lawsuit in the year 2003, the statute of limitations will not prevent you from pursuing the responsible parties.

Evidence

Secondly, is there evidence? Evidence includes testimony of people you may have told about the abuse around the time it was happening; testimony of other people who were abused by your perpetrator; medical records; testimony of people who observed dramatic changes in you at the time or a change in your relationship with the perpetrator; and of course (more rarely) testimony of people who saw the abuse happening. If you have no corroborative evidence except your word that it happened, you may still be able to convince a lawyer to take your case. In California, if you are over the age of twenty-six you currently have to have corroborating evidence to proceed with a suit.

Assets

The third thing we consider is whether the perpetrator has assets to satisfy a judgment or settle the case? (In California and most states, homeowner’s insurance excludes intentional acts.) Assets include houses and rental properties, stocks and bonds, bank accounts, boats and RVs, etc.

Are You Ready?

Finally, we consider whether it appears to be in your best interest to bring a lawsuit, considering that it's a stressful process. We try our best to assess at what stage of healing you are in, what kind of support system you have, whether you are in counseling, and if you seem ready to take this on.

Those are the things we consider. On your end, to help you assess whether or not you want to file a suit, we'll give you a brief picture of the process and some of the feelings that might come up.

Our Procedure

By the time we've decided to take a case, we've usually done some investigating, talked to potential witnesses, researched the perpetrator's assets, spoken with your therapist, and so on. We often then send a letter to the perpetrator. This letter introduces us as representing you, briefly outlines the facts of the claim, explains the legal bases for the lawsuit, and impresses on the perpetrator that a jury could award you a substantial damage award. We invite the perpetrator to avoid a lawsuit by responding promptly to the letter, and instruct him not to contact you for any reason.

For many cases, this letter starts the settlement negotiation process. We may provide therapy bills to document the money already spent on therapy, and a letter from your therapist explaining how much therapy you might need in the future. The perpetrator or his attorney may provide financial information to help us determine how much a reasonable settlement would be.

If the case does not settle at this point, we file and serve the lawsuit. The perpetrator will most likely get an attorney, and unless there are initial legal challenges to the lawsuit, then typically the "discovery" phase of the litigation process begins. You may be asked to answer questions in writing (interrogatories) or produce records of your therapy bills. Sometimes your therapy records or portions of them can be “discovered.” We try to protect from discovery the portions of your records that we feel are irrelevant to the case, including your sexual history (other than that with the perpetrator). But your claim for damages for psychological injury makes some things discoverable.

Your deposition may also be taken. In a deposition, the perpetrator's attorney asks you questions, which you answer under oath. A court reporter takes down your answers. Sometimes the perpetrator tries to attend the deposition; we can sometimes have the court order that he be excluded from the deposition if this is too upsetting for our client. (However, some clients find once they get over their initial fear that it is very empowering to testify in front of the perpetrator.) Your attorney is there to protect you in case the other attorney asks inappropriate questions or harasses you, and you have a right to stop the proceeding at any time there is a good reason.

You may also be asked to participate in what's called an Independent Medical Examination. This is where the other side picks a psychologist or psychiatrist to do an interview with you, perhaps with testing. Here too, you have the right to expect courteous and respectful treatment. You can take a tape recorder with you, and you can refuse to answer inappropriate questions. You can stop the interview if the doctor confuses or harasses you.

Then, finally, if the case does not settle before this, there is the trial. Very few civil cases go this far, but you should be prepared for a public trial in which much of your story and the perpetrator’s story will be told. No client enjoys the trial process. It isextremely stressful. There are things which will be said about you with which you violently disagree, and there will be things that you want to say which the jury will never hear. Once again, however, the stress of the trial process will be minimized to the greatest extent possible for you.

How Will the Process Affect You and Others?

As you can see, you may feel at times in this process that your privacy is being invaded, the effects of the abuse are back in full force (nightmares, difficulty concentrating, etc.), and you don't have control over the process. In other words, the process can trigger responses that make you feel the abuse is happening again. This is why we require all our clients to be in therapy throughout this process.

The truth is you do have control over the process in many ways, and it can be very empowering. We do everything we can to minimize the intrusion into your private life and maximize the options you have for controlling the process.

You should also be aware that the legal process is not just happening to you. In an even more dramatic sense, it is happening to your perpetrator. He/she is publicly exposed for what he/she has done. His/her financial life is at stake. Interrogatories are sent to him/her which he/she must answer. Our office will depose him/her. If he/she doesn't settle, he/she will face a public trial based on your allegations. The process will undoubtedly affect every aspect of his/her life: personal, social, and economic. While it may be difficult for you, I can promise you it will be extremely difficult for your perpetrator.

Another thing to consider is that, just as your own healing process involves a period of upheaval when the status quo goes out the window and nothing works the way it used to, deciding to pursue a legal remedy can blow up family relationships that have been entrenched for years, perhaps decades or generations. Often family members will pick sides over whether the abuse happened or not or whether or not you should be entitled to a legal remedy (i.e. money). Inheritances can be an issue. Public image of the family can be another. There may be many victims of sexual abuse in the family who don't remember their abuse or deny it affected them, and they may side against you because it would be too painful and have too many consequences to do otherwise.

Sometimes survivors are afraid the perpetrator will harm them physically. Many times the fear is exaggerated because it is triggered by the childhood fear and the threats often received in the course of the abuse. We have never had a case where a client was harmed, even with very violent perpetrators; it might be that initiating a lawsuit shifts the balance of power so much that our clients are actually less at risk than before. Or it may simply be that bringing the law into it frightens the perpetrator. At any rate, if you are afraid of physical harm you should discuss this with people you trust to get an outside view.

Some people feel that this is the best thing that ever happened to their family, because one or a few select people are no longer carrying the poisonous family secret, and the pattern is upset so that future generations of children will not have to continue the tradition. In other words, it is the beginning of family healing. They also feel that the culture at large benefits, because of course the more justice is done the more perpetrators are aware that they may not get away with it, that what they do might cost them dearly. These clients feel that they are participating in changing the world for the better, even if the general public is never aware of what they have done. And then, of course, if they are successful, the settlement or damage award money can make it possible to get better or more therapy, and allow them the stability to pursue their own dreams.

We hope this guide has been informative and useful in helping you think about your legal remedies as a sexual abuse survivor. We want to reiterate that you should not take this as legal advice, as your claim is unique and it is an attorney's job to weigh in all the factors in helping you decide if you have a winnable case or not.

If you want to read further, there is a book called Shifting the Burden of Truth by Joseph and Kimberly Crnich which goes into more detail about all these issues, and has a directory of attorneys in many states who do sexual abuse cases. It was published in 1992 by Recollex Publishing, 333 S. State St., Suite 326, Lake Oswego, OR 97035.

Good luck with your healing! If you have further questions, do not hesitate to contact us.