New Conversations About Sexual Assault Report Limitations In Light Of Brett Kavanaugh

By Brian Kent

[TW: references to sexual assault, rape]

In large part due to publicity around the #MeToo movement, thousands of sexual assault survivors have gained the courage to step forward, report past crimes and pursue justice in a court of law.

The movement has intensified further in light of Judge Brett Kavanaugh’s Supreme Court confirmation hearings. Judge Kavanaugh faces serious allegations of sexual assault, and the hearings have given renewed visibility to the long-standing problems of assault and sexual harassment.

Sexual assault laws vary from state to state. In general, sexual assault refers to any crime in which a defendant wrongfully subjects a victim to unwanted and offensive sexual touching. These crime ranges in severity from assault and battery to rape, the forcible consummation of unwanted sexual intercourse.

Sexual assault is illegal in every state, but each state defines the specific crimes that fall under the category of sexual assault in different ways. An exhaustive database of state sexual assault laws can be found at the Rape, Abuse & Incest National Network.

Alongside sexual battery and rape, many states have separate criminal statutes for what is commonly referred to as deviate sexual intercourse. In general, deviate sexual intercourse refers to oral or anal sex (technically, contact between the genitals of one person and the mouth or anus of another person).

Some states have enacted separate laws prohibiting the sexual assault of a victim when he or she is incapacitated, as in cases of date rape, when the defendant employs a drug or intoxicant to disable a victim both physically and mentally.

Spousal assault and domestic violence are another area of concern. At this point, every state has prohibited spousal rape, but some states have passed specific laws to prohibit the crime of sexual violence committed within the family. Other states have simply eliminated marriage as a legitimate defense in sexual assault cases.

Criminal statutes (laws passed by a legislature) can be highly-specific. Most criminal laws outline the specific forms of wrongful conduct at issue in detail. Crimes are generally divided into two general categories – misdemeanors, for lesser crimes, and felonies, for severe crimes.

Within these two categories, crimes are usually divided along even finer gradations, as when a charge of child seduction in Indiana is referred to as a “class D felony.” These gradations generally indicate the seriousness of the crime, relative to other crimes, but can also indicate the penalties for committing the crime.

Civil sexual assault cases are usually filed under common law causes of action, legal theories that have been recognized for centuries and reaffirmed by numerous judicial decisions.

In the vast majority of states, there is no exclusive civil cause of action that goes by the name of sexual assault. Instead, survivors pursue their lawsuits on the basis of legal theories of liability that fall under the rubric of intentional torts. As the name implies, these forms of wrongful conduct involve a level of intention, of conscious purpose, on the part of the defendant, which distinguishes them from cases of negligence.

In most cases, survivors will file their civil case on the basis of three causes of action, all of which can be combined in a single case:

  • Assault – when the defendant intentionally acts in such as a way as to make the victim reasonably fear an imminent harmful physical contact
  • Battery – when the defendant intentionally causes harmful or offensive physical contact
  • Intentional Infliction of Emotional Distress

Assault survivors have the right to come forward and report sexual assaults to law enforcement officials at any time. Whether or not prosecutors will pursue an investigation of the claims, however, is another question.

Both criminal and civil lawsuits are obligated to comply with a statute of limitations. The statute of limitations is a law, enacted on the state level, that restricts the amount of time in which criminal charges can be pressed, or alternatively, a civil lawsuit can be filed.

You can find an exhaustive list of criminal statutes of limitations for sexual assault offenses at the National Center for Victims of Crime. A similar list for civil statutes of limitations is available at FindLaw.

In recent years, a number of state legislatures have taken more interest in the difficulties that confront many sexual abuse and assault survivors. The majority of sexual assault cases go unreported. When survivors finally summon the courage to step forward, it can often be years, if not decades, after the event. A growing body of research suggests that delayed reporting is not exceptional, but normal in the face of a terrible trauma.

As our understanding of these challenges grows, some states have chosen to act, passing new laws that extend or eliminate the statute of limitations for cases of sexual misconduct. These measures are fair and necessary, providing survivors with additional time during which they can process their trauma and reach the point where reporting becomes possible.

Brian Kent, Esq. is a plaintiffs’ attorney and founder at Laffey, Bucci & Kent and a sponsor of A former prosecutor for the Sex Crimes Unit of the Montgomery County District Attorney’s Office, Brian now represents sexual assault survivors in private lawsuits.

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  1. Pingback: The Importance of Taking a Mental Health Inventory After Experiencing Sexual Assault - GirlTalkHQ

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