On October 13, 2019, Governor Gavin Newsom signed AB 218. AB 218, among other provisions, extends the liability timeline where sexual abuse and molestation (SAM) claims can be filed and makes public entities liable for triple damages if there is any evidence a claim was purposely concealed. AB 218 also expands the definition of sexual abuse to sexual assault and opens the door to retroactive claims that may be filed for the next three years.
In preparation for the new law which takes effect on January 1, 2020, the Authority has compiled some helpful information to help prepare members for the expected surge in SAM claims.
Things all members need to know about the new law include:
- Statute of limitations for childhood SAM is extended by 22 years from the date an individual attains the age of majority (to age 40) or within five years an individual discovers that their current psychological injury or illness was caused by a sexual assault occurring before they reached the age of majority.
- Claims, including retroactive claims, can be filed starting January 1, 2020. There is a three-year retroactive window opened by AB 218’s enactment that permits old claims to be revived.
- For all practical purposes, there is no statute of limitations. A claimant can be 90 years old and file a claim if the claimant discovers a psychological injury or illness was caused by a childhood sexual assault 80 years prior where the entity being sued owed a duty of care to that individual.
- Public entities will be presented with claims that are difficult and expensive to defend. AB 218 claim targets will be public entities, including schools, city and county run day care operations, city or county operated before school or after school programs, public safety programs aimed at helping at risk youths, police and fire Explorer programs, and foster child or adoption programs, to mention just a few.
- Treble damages can be imposed if any effort to conceal can be proven. Treble damages simply refer to punitive or compensatory damages that are three times or triple the amount of the award that they are normally entitled to a prevailing plaintiff.
Older claims pose several potential challenges, including that there may be no living witnesses or records to be found. Because of this lack of documentation, this process is ripe for fraudulent claims.
It is unknown at this point how AB 218’s provision will be interpreted by the courts. The new law also sets a new, lower standard to establish employer culpability.
Prior to AB 218, a victim could bring a civil suit against a person or entity after the plaintiff attains age of majority (now 40) if they allege that the employer had some reason to know of “unlawful sexual conduct” by their employee, volunteer, representative, or agent, AND the employer failed to take action to prevent the abuse. AB 218 changed the “AND” to an “OR” which would have the effect of eliminating the requirement that an employer have knowledge, and reduced the standard of “unlawful sexual conduct” to “misconduct that creates the risk of childhood sexual assault,” thereby creating a standard akin to strict liability, regardless of knowledge of or reasonable steps taken to safeguard children.
Steps for Members to Take to Prepare Now
Members should do a comprehensive review of all systems and resources in place to ensure that they are prepared for AB 218.
These steps include the following:
- Review all administrative policies, procedures, practices and training materials relating to the topics of child supervision, mandated reporting, and a zero-tolerance policy for sexual harassment, sexual assault, and sexual abuse.
- Maintain and retain relevant records pertaining to the above subject areas.
- Tighten site access (e.g., knowledge/control of all visitors, vendors, volunteers, etc.).
- Consider a visitor management system and a clear procedure for approving volunteers.
- Updated and directed staff training on best practices regarding:
- Recognition of potential predator behavior
- Personal and physical boundaries
- Reporting requirements and mandates
- Response procedures
- Communication with children and families, as necessary
Potential Financial Impacts
Members should be aware of the ways in which AB 218 and a potential increase in claims related to it may have financial impacts.
Some potential considerations include the following:
- Potentially substantial increases in liability program costs.
- Insurance market responses could include SAM coverage exclusions, reduced limits, or excess carriers/reinsurers may exit the California market entirely.
- Members should identify insurance coverage prior to the time they joined the Authority, just in case older claims arise.
- Identify potential victims from old cases such as those that were rejected to previously being time-barred.
The Authority strongly recommends each member to consult with legal counsel and risk management staff on how to best prepare for AB 218’s coming impact. Members should notify their assigned regional Risk Manager and agency legal counsel immediately upon receiving notice of any SAM related report or claim.
Training and Resources
The Authority provides training and resources in relevant topics such as harassment, discrimination, retaliation, abusive conduct, criminal background checks, and mandated child/elder abuse, neglect, and reporting. Members are encouraged to reach out to their assigned regional Risk Manager to determine the best way to implement the Authority’s available training and resources to match the agency’s needs.
Also available from the Center for Disease Control and Prevention (CDC) is a guide with information on how to create safe environments for children and teens in youth-serving institutions and organizations. Titled “Preventing Child Sexual Abuse within Youth-serving Organizations: Getting Started on Policies and Procedures”, the guide can be found here.
The reality of AB 218’s enactment on members is that we now face an unprecedented, unknown liability landscape whose costs to public entities could easily climb into the billions of dollars over the next few years.
The silver lining to the legal mayhem that will be caused by AB 218’s enactment is that it may lead to needed tort reform in the future aimed at protecting public entities from going insolvent due to AB 218 claims. Even more important is that we, as public stewards, establish focused, stronger safe environments for not only children and students in our care, but also for our staff and administrators.
The Authority urges members to take action to create and implement the strongest SAM prevention policies, training, detection, and related protocols possible.
For questions and additional guidance, please contact your assigned regional Risk Manager.