Legal Update Memo No. 43-2019 – AB 218 – Childhood Sexual Assault (K-12)

Download pdf: 43-2019 – AB 218 – Childhood Sexual Assault (CDC)

On October 13, 2019, the Governor approved Assembly Bill (“AB”) 218, which, effective January 1, 2020, provides the following:

  • The pre-existing exception to present a claim under the Government Claims Act for “childhood sexual abuse” will be continued, but will now be defined as “childhood sexual assault”;[1]
  • Increases the time limit for a victim to commence an action for recovery of damages suffered as a result of childhood sexual assault to 22 years from the date the plaintiff attains the age of majority or within 5 years of the date the victim discovers or reasonably should have discovered that the psychological injury or illness occurring after the age of majority was caused by sexual assault, whichever is later;[2]
  • Allows for the recovery of up to treble (triple) damages if a sexual assault was the result of a “cover up”;[3]
  • Allows for the filing of legal claims after the victim’s 40th birthday against a defendant (to include a school district, county office of education, and charter school) if the defendant knew or had reason to know or was otherwise on notice of any misconduct that created a risk of childhood sexual assault by an employee, volunteer, representative, or agent of the defendant and the defendant failed to take reasonable steps or to implement reasonable safeguards[4] to avoid acts of childhood sexual assault;[5] and
  • Beginning on January 1, 2020, creates a three-year window for victims of any age to sue on claims that had previously expired in which the matter had not been “litigated to finality.”[6]

Implications for Local Educational Agencies

Prevention

As discussed in previous Legal Updates from our office, Local Educational Agencies (“LEAs”) have ever increasing responsibilities to ensure the prevention of harassment, including sexual harassment, and bullying with students.  Indeed, LEAs are even responsible for addressing electronic acts (such as texts) created or transmitted off the schoolsite by students that could be an act of bullying towards another student.[7]

LEAs should ensure that all legal training and posting requirements are completed with strict fidelity, which includes:

  • The every other year one-hour sexual harassment prevention training for all employees and the two-hour training for all supervisors in accordance with Senate Bill (“SB”) 1343;[8]
  • LEAs should ensure the annual mandated reporter training is provided to all required staff in accordance with AB 1432;
  • Compliance with Education Code § 231.5, which requires LEAs to display in a “prominent location” its policy/policies on sexual harassment;[9]
  • Compliance with AB 543, which effective January 1, 2020, requires LEAs that serve students in any grades 9th through 12th to develop a poster that notifies students of the sexual harassment prevention policy developed by the LEA, which should be, at a minimum, prominently and conspicuously displayed in each bathroom and locker room at the schoolsite;[10] and
  • Compliance with the requirements of AB 34, which requires LEAs to post specific information on the LEA’s website regarding harassment and bullying.[11]

LEAs may want to consider developing a Board Policy on appropriate adult-student interactions.  The California School Boards Association (“CSBA”) has developed Board Policy 4219.24, which addresses “Maintaining Appropriate Adult-Student Interactions.”

LEAs also need to ensure all employees are appropriately fingerprinted to undergo a criminal background investigation.  LEAs should review their volunteer policies to ensure that student safety is paramount.

Investigation and Reporting

LEAs need to ensure that any reports of harassment and bullying are appropriately investigated in accordance with the LEA’s applicable policies.  Any report of sexual assault for a student under the age of 18 should result in the filing of a mandated report to the appropriate authorities.

Claims by former students should be investigated to the extent possible especially if the alleged perpetrator is still working for the LEA.

Lastly, LEAs should contact their insurance carriers as soon as possible if there is any potential for a legal claim.

Please contact our office with questions regarding this Legal Update or any other matter.

Legal Update written by Carl D. Corbin, General Counsel.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2019 School and College Legal Services of California

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] Government Code § 905(m).

[2] Code of Civil Procedure § 340.1(a).

[3] Code of Civil Procedure § 340.1(b).  “Cover up” is defined as “a concerted effort to hide evidence relating to childhood sexual assault.”

[4] Providing counseling or requiring counseling is not sufficient, in and of itself, to constitute a reasonable step or reasonable safeguard.

[5] Code of Civil Procedure § 340.1(c).

[6] Code of Civil Procedure § 340.1(q).  There is no clear definition of the phrase “litigated to finality.”

[7] Education Code § 48900(r).

[8] Discussed in Legal Updates 38-2018 and 24-2019.

[9] “Prominent location” means that location, or those locations, in the main administrative building or other area where notices regarding the institution’s rules, regulations, procedures, and standards of conduct are posted.

[10] Discussed in more detail in Legal Update 33-2019.

[11] Discussed in more detail in Legal Update 36-2019.