Decades before #MeToo became a global movement, attorney John D. Winer fought on the frontlines in a battle to convince California jurors that sexual abuse allegations had merit. Winer recalls facing a much more skeptical audience when he litigated church abuse cases in the 1980s.
“At the time, clergy abuse cases were a lot more difficult than they are now,” said Winer, the senior and managing partner of Winer Burritt & Scott. “The jurors were not always sophisticated enough, particularly in smaller counties, to understand the effects of sexual abuse and psychological injury.”
The Oakland-based attorney has spent the past 40 years advocating for victims by giving a voice to those who want to speak out about suffering from severe psychological injuries associated with childhood sexual abuse and workplace sexual harassment. Winer sees his chosen career path as a calling. “I felt I could really help people effectuate change in the world and make the workplace a safer place,” he said.
Growing up in New Haven, Conn., Winer recognized injustice and inequality at a young age. As a teenager, Winer remembers witnessing civil unrest while rallying outside the courthouse during the New Haven Black Panther Trials. The historic event inspired him to pursue law school and eventually represent plaintiffs seeking justice. Winer got his first job working for the legendary San Francisco trial lawyer Marvin E. Lewis, who is a pioneer of the legal concept of “psychic injury”.
Shortly after Winer joined Lewis & Lewis, he started handling psychological injury cases that involved sexual misconduct committed by doctors, therapists, and social workers. These cases often involve what’s known as “transference phenomenon”, which happens when an individual redirects emotions and feelings, often unconsciously, from one person to another. Patients are manipulated into highly unethical and inappropriate relationships with their care provider, inflicting long term emotional scars.
Care providers hold significant power in the patient-doctor treatment dynamic. A patient cannot give consent to sexual behavior with their psychotherapist. According to statistics from the California Board of Psychology, between the years of 2008 and 2014, the Board received an average of 700 complaints of therapist abuse per year.
A lot of people don’t realize that sexual harassment in employment cases are civil rights cases
After starting his own law practice, Winer started seeing the first wave of workplace sexual harassment cases following the 1986 landmark U.S. Supreme Court decision in Meritor Savings Bank v. Vinson. The Court recognized that plaintiffs could establish violations of the Civil Rights Act "by proving that discrimination based on sex has created a hostile or abusive work environment."
“A lot of people don’t realize that sexual harassment in employment cases are civil rights cases,” added Winer, who considers these actions the most rewarding of his career. One that had the most impact involved a $4.2 million jury verdict in San Jose in a sexual harassment case against FedEx. It remains one of the highest sexual harassment judgments in Santa Clara County. “I believe that FedEx learned its lesson and changed its policies as a result of that verdict,” said Winer.
In the wake of #MeToo, companies across the country became acutely aware of the risks associated with fostering a toxic work environment and turning a blind eye to sexual harassment. High profile allegations involving Hollywood stars, network journalists, and industry leaders exposed how non-disclosure settlement agreements (NDAs) are used as weapons to silence victims.
Corporations frequently deployed non-disclosure agreements as a tool to keep workplace sexual harassment under wraps. NDAs are designed to protect high profile executives from embarrassing publicity surrounding an accusation of sexual misconduct while providing victims compensation for their suffering. After signing the deal, the accusers are prohibited from telling their story publicly or risk harsh penalties.
Since the rise of #MeToo, the public has become more aware of these settlements which allowed sexual predators to stay in their jobs, essentially emboldening them to continue the harassment. The company could wash its hands of the situation and ignore future complaints of mistreatment.
States like California recently implemented new laws to stop secret settlement agreements involving sexual assault, sexual harassment, discrimination, or retaliation. Employers are now prohibited from using NDAs to hide claims in an administrative or civil lawsuit for sexual harassment under California Civil Code section 51.9, as well as employment-related harassment, gender discrimination, or retaliation for reporting incidents of sexual harassment or discrimination. The law will now allow victims to talk about what happened to them, while still keeping the settlement amounts confidential.
The shift towards transparency has compelled more people to come forward with complaints. “Before #MeToo, 80% of the cases that came into our firm involved women. Now I’m seeing a shift to about 60% men, 40% women who are filing these cases,” said Winer.
The same can be said about the clergy abuse crisis that has rocked the Catholic Church. It took an avalanche of lawsuits against Dioceses across the nation before the public recognized the full scope of the damage inflicted by childhood sexual abuse. “You could still win against a church in the ’80s, but it was hard. It was ‘he said/ he said’. But that has changed radically to a point where we can win those types of ‘he said/he said’ cases almost all the time,” added Winer.
A new California law gives victims of childhood sexual assault more time to report allegations of abuse and file a lawsuit against their abuser. Previously, the state allowed victims to file claims until the age of 26. The new law, known as AB218, extends that limit to age 40, or within five years of the time it is discovered that they suffered damages as a result of the assault, whichever comes later.
Survivors of childhood sexual assault are often not prepared to come forward and report allegations against their abusers until they are in their 40s or 50s. Historically, this has caused many victims’ claims to be time-barred, because the statute of limitations to file a claim against a perpetrator passed years, or even decades, before. The new law which took effect in January 2020, has a three-year window for victims of childhood sexual assault to file a civil lawsuit against an abuser. It holds perpetrators more accountable, especially leaders within the Roman Catholic Church (priests, nuns, and others) and the Boy Scouts of America.
“One thing that has become easier to prove is that the Church should have known. It’s not whether they knew or not. They should have known what’s going on and they haven’t taken successful steps to prevent sexual abuse.”
The average age of the clergy abuse victims who seek Winer’s help is 60. “And in some cases, an attorney at my firm might be the first person the victim has ever told about their abuse,” added Winer, who believes that in most cases, anyone who has suffered sexual abuse, harassment, or discrimination will benefit from speaking out and fighting back.
Winer says he frequently thinks about what he would advise his daughters - ages 15, 26, and 30 - to do if faced with the choice to come forward or stay silent. “If you will be financially and emotionally better off, it’s worth the effort to stand up for yourself and demand accountability.”
Gina Kaysen Fernandes