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Can I file a Civil Lawsuit After a Sexual Assault in San Diego?

| Feb 2, 2015 | Firm News

The simply answer is yes, you can file a civil lawsuit after a sexual assault in San Diego.

Differences Between a Criminal Case and Civil Case:

It is important to remember the difference between a criminal action and a civil action. In a criminal action, the government is the party bringing the legal action against an individual, known as the criminal defendant. In a civil action, one individual party, the plaintiff, brings the legal action against another individual party, known simply as the defendant. Some of the other differences between a civil and criminal case include the burden of proof, the elements of the offense, the penalties for the defendants if found guilty and the ultimate outcome for the victim.

Thus, if you are the victim of a sexual assault in San Diego or Southern California, you could file a civil lawsuit against the sexual aggressor or a potential liable third-party such as a property owner to obtain monetary compensation for your injuries and/or emotional distress.

Civil Claims for Sexual Assault:

In California, if you are the victim of a sexual assault, you can file a civil lawsuit.  There are several claims that can be alleged in a civil lawsuit for sexual assault.  One such claim is for a sexual battery; another is to file a claim for gender violence.  However, other claims can also be alleged against third-party defendants, such as property owners, for negligence or premises liability.

(1)  Sexual Battery: According to the California Civil Code (§ 1708.5.), a sexual battery occurs in one of three ways:

a)     A person acts with intent to harmfully or offensively contact “an intimate part of another” and “sexually offensive contact” ensues;

b)     A person acts with intent to harmfully or offensively cause contact with another “by use of his or her intimate part” and “sexually offensive contact” ensues; or

c)     A person acts to cause imminent apprehension of either the contact in (1) or (2) and “sexually offensive contact” ensues

Further, the legislature has defined “offensive contact” as “contact that offends a reasonable sense of personal dignity.”

A sexual battery claim is the conventional civil claim after a sexual assault takes place. It modifies the civil claim of battery, which is unlawful touching, with the addition of specific sexual activity. In a nutshell, to prove a sexual battery in a civil case the following three things must be present; (1) Intent of Aggressor; (2) Offensive Contact and (3) Lack of Consent.

The intent is the mindset of the aggressor – simply inquiring if that individual meant to make the sexual contact happen. The second part is the offensive contact; in order to claim a sexual battery the sexually offensive contact must have occurred. Finally, the victim cannot agree to the act or give permission to the other party. A prominent defense in these cases is that the victim consented to the act.

(2)  Gender Violence: Another cause of action which may be available in the event of a sexual assault is a civil action for gender violence (California Civil Code § 52.4). Gender violence is defined to mean either of the following:

(1) “One or more acts that would constitute a criminal offense under state law that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, committed at least in part based on the gender of the victim,”

(2) “A physical intrusion or physical invasion of a sexual nature under coercive conditions,”

Gender Violence was added to the Civil Code in 2002. It aims to enable victims to have another means to file a lawsuit. A key distinction is the statute of limitations and the damages available in these cases. Finally, to assert a cause for gender violence, it does not matter if the “acts have resulted in criminal complaints, charges, prosecution, or conviction.”

Cases of sexual assault have been increasing in San Diego.  In fact, UCSD is expanding its sexual assault prevention center.  If you or a loved one has been the victim of a Southern California or San Diego sexual assault, contact the sexual assault attorneys at Martinez & Schill LLP today to discuss your case.  You may be able to recover compensation for your injuries and emotional distress.  Contact our San Diego office: 619-512-5995 or Riverside office: 951-200-4630.