November 22nd, 2022

NY’s Adult Survivors Act Gets Started

The Adult Survivors Act was signed by Gov. Hochul six months ago, and is modeled on the New York’s Child Victim’s Act. The law’s premise is simple: The statute of limitations on sexual assaults is suspended for a year. Old claims that had been stale are now open. As of Thursday, Thanksgiving Day.

The fundamental logic behind it is straightforward: People (likely to be mostly women) who had been sexually assaulted years ago and afraid to come forward may now do so. The #MeToo movement has given courage to many to do that which they had previously been afraid to do.

It wouldn’t be the first time, nor the last, where people just tried to bury in their minds that bad thing that happened to them. Now they can unbury them.

Some cases will be easier to demonstrate than others. Columbia University last month agreed to pay a $165 million settlement with 147 patients of a former gynecologist Robert A. Hadden. And that settlement followed a $71.5 million deal on 2021 for 79 of other patients. The law wasn’t in effect yet, but it had already been passed.

Perhaps, if enough come forward, a pattern of conduct may be evidence. If, that is, it is admissible.

Such cases may happen with alleged victims of Jeffrey Epstein and Ghislaine Maxwell. Or Donald Trump. Or Andrew Cuomo. Or movie stars. Or corporate titans. Or people you’ve never heard of. Or you.

You. Did I say you? How does one defend against claims that may be decades old? Witnesses, diaries or other documentary evidence may be lost or gone. How does a defendant show that he was in the Bronx at the time the assault was alleged to have happened in Brooklyn? Or that they even knew the person? Where were you on the night of February 28, 1992?

And how does the Estate of John Doe defend against an accusation that John Doe sexually assaulted someone?

Will jurors simply accept the word of one person against the other in a classic “he said / she said” argument?

All of these cases will be traumatic. Few will be easy.


February 14th, 2019

Cuomo Signs Child Victims Act for New York

Today New York joined the growing list of states that allows victims of child sexual assault to come forward and bring suit for that assault, even if the attack is decades old. The law will also extend the statute of limitations on criminal actions.

On the civil side, the Child Victims Act will allow people to proceed up to the age of 55, where they claim that they were sexually assaulted as kids.

On the criminal side, the statute of limitations won’t start to run until the child has turned 23.

But the time to bring civil suits comes with a narrow window of 12 months.

The twin problems, as widely discussed in the press, is on the one hand the human desire to suppress traumatic memories because they are so painful. Such suppression may occur when the alleged assailant is an otherwise trusted individual such as clergy, family, friends or educators. This allows the statute of limitations to slip by.

The other problem, of course, is trying to prove that the assault actually happened long after witnesses and physical evidence may have vanished, and memories may have dimmed. Or that if it happened, it happened as described by the complainant.

Anybody who watched the Senate hearings to confirm Justice Kavanaugh (or Justice Thomas before that) knows how tough it is to sort through old evidence.

The legislative details of the bill are here.

The law had long been sought by Assembly Democrats in Albany, but was blocked by Republicans that controlled the Senate. With the blue wave that swept the nation this past election, the Democrats took possession of the Senate and the bill has sailed through.

The law will become effective six months from signing (today, February 14) and then run for one year. This time lag will give the judiciary time to examine the law and prepare for new cases and, one might expect, for a variety of continuing legal education classes to pop up for lawyers about how to handle them.

One should expect that, in mid-August, a flurry of new lawsuits will be brought under the new legislation.