By Brian Lee, Esq.
Sexual assault is broadly defined in state and federal laws as subjecting a person to any unwanted or nonconsensual sexual contact.
On March 31, 2023, President Joseph R. Biden Jr. proclaimed April 2023 as National Sexual Assault Awareness and Prevention Month. Despite a long history of advocacy groups campaigning for sexual assault and sexual violence awareness, President Barack Obama was the first United States president to recognize April as National Sexual Assault Awareness Month in 2009.
In recognition of National Sexual Assault Awareness and Prevention Month, this article will highlight several key California laws concerning sexual assault that went into effect on January 1, 2023.
AB 2777
The Sexual Abuse and Cover up Accountability Act (AB 2777) was passed in September 2022 and went into effect on January 1, 2023. AB 2777 amended a 2019 law, specifically California Code of Civil Procedure Section 340.16, which increased the formerly two-year statute of limitations to 10 years for filing civil claims to recover damages as the result of sexual assault as an adult.
The original language of Section 340.16 stated that this law applied to actions commenced on or after January 1, 2019. Based on this language, it was unclear whether Section 340.16 applied retroactively, meaning it was unclear whether this statute required that the alleged sexual assault had to have occurred on or after January 1, 2019, disqualifying any alleged sexual assaults that occurred prior to that date.
AB 2777 addressed this confusion and clarified that the 10-year statute of limitations under Section 340.16 applied retroactively, i.e., victims of sexual assault can file their civil claims for sexual assaults that occurred on or after January 1, 2009. Moreover, to remedy this prior confusion, AB 2777 created a three-year window from January 1, 2023 to December 31, 2026, for victims of sexual assault to file their civil claims for sexual assaults that occurred on or after January 1, 2009.
Furthermore, AB 2777 amended Section 340.16 to allow a one-year window from January 1, 2023 to December 31, 2023, for sexual assault victims to file a claim that would otherwise be time-barred for sexual assault that occurred at any time if the assault was covered up by a legal entity, including a sole proprietorship, partnership, limited liability company, or corporation.
The plaintiff would have to prove that one or more entities are legally responsible for damages arising out of the sexual assault and that this entity, including its officers, directors, representatives, employees, or agents, was engaged in a cover up or attempted a cover up of a previous instance or allegation of sexual assault by an alleged perpetrator of such abuse. “Cover up” is defined as an effort to hide evidence relating to a sexual assault that incentivizes individuals to remain silent or prevents information relating to a sexual assault from becoming public or being disclosed to the plaintiff, including the use of nondisclosure agreements or confidentiality agreements.
AB 1661 and AB 1788
AB 1661 and AB 1788 are laws relating to human trafficking that went into effect on January 1, 2023. Although AB 1661 and AB 1788 are not directly related to sexual assault, trafficked individuals are particularly susceptible to sexual assault and exploitation.
AB 1661 amended California Civil Code Section 52.6, which requires that specific businesses and establishes, including, but not limited to, public businesses that sell alcoholic beverages, adult or sexually oriented businesses, airports, intercity passenger rail or light rail stations, bus stations, truck stops, emergency rooms within general acute care hospitals, urgent care centers, massage parlors, and hotels to post a notice prepared by the Department of Justice that contains information relating to slavery and human trafficking. Businesses or establishments that fail to comply with the posting requirements of Section 52.6 are liable for a civil penalty of $500 for a first offense and $1,000 for each subsequent offense.
AB 1661 amended Section 52.6 to include hair salons, nail salons, skin care, and other related businesses performing cosmetology and barbering services amongst the list of other businesses and establishments required to post this notice.
AB 1788 allows civil penalties to be imposed against a hotel if a supervisory employee of the hotel had knowledge or acted with reckless disregard of any sex trafficking activity that occurred within the hotel and failed to report it to law enforcement or any other appropriate victim service organization. AB 1788 authorizes a city or county attorney to seek a civil penalty of $1,000 for the first violation, $3,000 for a second violation within the same year, $5,000 for any subsequent violation within the same calendar year, and, within the courts discretion, up to $10,000 for any fourth or subsequent violation.
In honor of National Sexual Assault Awareness and Prevention Month, we encourage educating yourselves and others about sexual harassment prevention and business compliance requirements under the new California laws related to human trafficking. At Bradley, Gmelich + Wellerstein LLP, our professionals are specialized in helping your business comply with the laws on sexual harassment and sexual assault. We can provide legal guidance and counseling on how to best prevent sexual harassment and assault in your business through workplace training and implementing workplace policies and practices. Our goal is to assist in creating a safer and more supportive environment for every person, which is what National Sexual Assault Month Awareness is intended to do.
Brian Lee is an associate in the professional liability team and the litigation team. He earned his law degree from UC Hastings College of the Law, graduating cum laude. While in law school, Brian served as an editor for Hastings Law Journal.
Brian’s previous experience includes medical malpractice defense litigation, defending doctors, hospitals, and other healthcare practitioners in a broad range of litigation matters. His experience also includes working as a prosecutor at a District Attorney’s office for several years, managing a heavy caseload, and trying several jury trials to verdict.
Brian is licensed to practice in all California state courts. He is fluent in Korean.