Victim of sexual assault in California? How to file a lawsuit

Q: What is the burden of proof in a civil lawsuit for sexual assault?

In a criminal trial, the prosecution must prove guilt "beyond a reasonable doubt." This can be difficult to do in sexual assault cases, where consent or lack of it is often difficult to prove. Though in a civil lawsuit, you need only establish liability by a “preponderance of the evidence.” This means that the jury must simply determine that it is “more likely than not” that the defendant sexually assaulted or abused you.

Q: How long do I have to bring a civil lawsuit?

In California, people who were adults at the time of a sexual assault have two years from the date of the assault to sue for damages. Note that this is often a shorter period than the statute of limitations for prosecuting the defendant's actions as a crime.

Q: Can another party be held responsible?

When we think of sexual assault, we usually think in terms of a victim and a perpetrator. Though the law imposes liability on anyone who violates a duty of care in California if that party's negligence causes injury to another. This means that if a sexual assault occurred because of someone else's negligence, that party may be liable.

Victims of sexual assault in California: How to file a lawsuit

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Victims of sexual assault or sexual abuse can sue the perpetrators for damages. Any type of sex crime can serve as the basis for a sexual assault civil lawsuit, including:

Rape,
Sexual abuse of a child,
Groping (sexual battery),
Indecent exposure,
Sexual assault by rideshare drivers,
Sexual assault by doctors or physicians, or
Any other non-consensual act of a sexual nature.

If you are the victim of sexual assault, you may be entitled to a large amount of money in damages for:

Medical bills,
Psychological counseling,
Lost wages,
Lost earning capacity,
Pain and suffering (including traumatic stress),
Loss of enjoyment of life,
Scarring,
Insomnia,
Anxiety, and/or
Emotional distress or trauma.

RAPE CASES	Criminal prosecution	Civil prosecution
Charge/cause of action	Sexual assault	Battery
Legal definition	Non-consensual sexual penetration	Intentional use of unlawful physical force
Type of law	Statutory	Common law
Is penetrative sex required?	Yes	No
Victim’s role	State witness	Plaintiff
Rapist’s role	Defendant	Defendant
Burden of proof	Beyond a reasonable doubt	By a preponderance of the evidence
Examples	Forcible rape or raping an unconscious person	Choking, holding down, or groping
Penalties	Prison, fines, and sex offender registration	Money damages and injunctive relief
Defenses	Consent or false allegations	Consent or false allegations

To help you better understand the process of suing someone for sexual assault, our California personal injury lawyers discuss the following, below:

angry young woman pointing her finger toward the viewer - suing someone for sexual assault is an option for rape victims

Sexual assault victims have legal recourse in both criminal and civil court.

1. Who can sue for sexual assault, abuse or battery in California?

If you have been the victim of unwanted touching or an unwanted sexual act, you can sue for damages.

Families of victims may also be able to sue for:

negligent infliction of emotional distress if they witnessed the assault;
wrongful death or a survivor’s action if the victim died; or
loss of consortium if the assault resulted in a loss of companionship, moral support and/or intimacy to a spouse or registered domestic partner.

2. Do I need to file criminal charges first or can I just file a lawsuit?

California law does not require a criminal conviction or even a police report for you to sue for damages following a sexual assault.

3. What is the burden of proof in a civil lawsuit for sexual assault?

In a civil lawsuit for sexual assault, nine of the 12 jurors must find by a “preponderance of the evidence” that the defendant sexually assaulted or abused you. In other words, that it is “more likely than not” that the defendant is liable.

This is a much lower burden of proof than in a criminal trial, where the prosecution must convince all 12 jurors “beyond a reasonable doubt” that you are guilty.

Because civil lawsuits have a lower burden of proof than criminal trials, it is possible that you could win a sexual assault lawsuit even if the perpetrator is acquitted in the criminal case.

male lawyer speaking to a group of jurors - victims of sexual assault can file a civil lawsuit and may be awarded damages

Rape victims have two years to sue for damages in California.

4. How long do I have to bring a civil lawsuit?

If you were an adult at the time of a sexual assault, you have a two-year time limit from the date of the assault to sue for damages in the civil court system.¹ However, if felony criminal charges are brought and the defendant is convicted, you have one year from the date the judgment is pronounced to file suit – even if the claim would otherwise be time-barred.²

If you are a victim of childhood sexual assault or abuse that occurred before Jan. 1 of 2024, you may file a lawsuit in California until the later of:

Your 40th birthday, or
5 years from when you discover, or reasonably should have discovered, that a psychological injury or illness that occurred after you turned 18 was, in fact, caused by the sexual assault or abuse (“delayed discovery”).

If the child sexual abuse occurred on or after Jan. 1 of 2024, there is no statute of limitations to sue.³

5. Can another party be held responsible?

Yes. Anyone whose negligence may have contributed to your sexual assault occurring may be held liable.

Example: Several of the residents in Jane’s apartment complex complain to the management that the locks to the building are broken. Management ignores the reports. Jane is later sexually assaulted in the garage. She sues the building owner and property liability insurer and recovers $500,000 in damages.

Example: Susan, a student at a public university, is sexually assaulted by a faculty member. She files suit under Title 9 based on the school’s policies that enabled the campus sexual assault to take place.

man stalking dressed-up woman in a parking garage

There may be several liable parties in sexual assault lawsuits.

6. What are some defenses to civil charges of sexual assault?

Common defenses to civil charges of sexual assault include:

The defendant did not do it (you are lying or mistaken);
No sexual act took place; or
The encounter was consensual.⁴

Even consent has limits. If the defendant went outside the boundaries of what was consented to – such as not using a condom when you told them to – it may count as sexual assault.⁵

7. Can I recover punitive damages in a sexual assault lawsuit?

Yes. State law under California Civil Code 3294 allows you to recover punitive damages if you prove the defendant acted with

oppression,
fraud, or
malice.⁶

8. Can I be sued for defamation if I sue someone for a sex crime?

Possibly. Potential defamation claims are just one reason why going to the police after an assault can be advantageous, even if charges are never brought. At the very least, it can help you tell someone right away and, in cases of rape, undergo rape kit testing.

We also advise you not to post on social media details of an alleged sexual assault that would identify the perpetrator. Focus instead on how the encounter made you feel.

woman's hand holding up sign saying "#MeToo"

Sex assault victims should consult with an attorney right away.

9. What should I do if I suspect that someone has assaulted or abused my child?

The Rape and Incest National Network (RAINN) offers tips on what to do if you suspect a child is being harmed by unlawful sexual contact.

Alternatively, you can contact California’s Child Protective Services Agency to report the abuse.

You can also call the Childhelp National Abuse Hotline at (1-800) 4-A-Child (800.422.4453).

10. What should I do if I have been raped?

RAINN offers tips on “steps you can take after sexual assault.” The most important things are to seek immediate help and to preserve evidence, even if you do not think you will want to

press charges or
file a lawsuit for damages.

You may change your mind later.

Additional Reading

For more information, see our related articles:

Sexual abuse v. sexual assault – the difference between the terms “sexual abuse” and “sexual assault”
How to apply for victim restitution from a California criminal court – instructions for crime victims on how to recover monetary losses
How to prepare to testify as a witness at trial – tips for anyone set to take the witness stand
Lawsuits by crime victims – overview of how crime victims may bring a civil lawsuit whether or not there is a criminal charge pending
California’s rape shield law – how in criminal cases, the victim’s sexual past is usually inadmissible as evidence

Legal references:

California Code of Civil Procedure. 335.1.
California Code of Civil Procedure 340.3.
California Code of Civil Procedure 340.1; California Assembly Bill 218 (2019); Patrick McGreevy, “California grants more time for filing child sexual abuse allegations under new law“, LA Times (Oct. 13, 2019). If you were a child victim and file suit over the age of 40, you will need to obtain certificates of merits from: A mental health professional who has not treated you, stating that there is a valid reason why you could not have discovered the harm sooner, and Your attorney, stating that the lawyer has reviewed the case and the findings of the mental health professional and determined that a claim is meritorious. AB 452 (2023).
Civil Code section 3515. See also Rains v. Superior Court (1984) 150 Cal.App.3d 933 (“The element of lack of consent to the particular contact is an essential element of battery”).
Ashcraft v. King (1991) 228 Cal.App.3d 604.
Civil Code section 1708.5.
See also California Civil Code 1708.5 on sexual battery.

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