The recently passed New York Adult Survivors Act, signed into law May 24, amends the state’s statute of limitations for civil actions related to certain sexual offenses committed against persons over 18. It allows for a one-year window, regardless of when the alleged offense occurred.
The one-year window will begin on Nov. 24 and allows for civil actions to be brought against institutions (including the person’s employer) for negligent or intentional acts as well. With this law, we can expect to see an increase in cases in which the alleged sexual offense occurred in a workplace or at another institution that had a duty to the survivor.
As described above, the act not only permits claims against the person who committed the sexual offense, but also permits claims against institutions (including the person’s employer) for negligent or intentional acts as well. Defending such lawsuits may raise unique hurdles, given that the abuse could have occurred decades earlier. However, the plaintiff still bears the burden of proof and may face high evidentiary hurdles. If successful, a plaintiff can recover from both the individual and/or the institution for economic, compensatory, and punitive damages.
To prepare for the expected litigation wave, companies should consider re-opening and or initiating investigations into prior complaints involving sexual offenses that would qualify under the act. These investigations themselves will likely face certain obstacles, including the fact that many of the parties or witnesses involved may no longer be at the institution and/or documents may not have been retained.
To facilitate these investigations, counsel (whether in-house or retained) should begin reviewing prior complaints and collecting any existing documents and pertinent witness lists.
Of course, companies will need to be extremely sensitive when reaching out to employees no longer present at the company in order to best protect the confidentiality of any such inquiries.
The one-year window under the act begins six months after the law’s signing, and allows a plaintiff to file a lawsuit regardless of the statute of limitations. This means the first actions can be filed on Nov. 24, and the window closes on Nov. 24, 2023.
Any previous action dismissed because it was time barred cannot be grounds for a motion for dismissal of the revived action. Relatedly, the New York Legislature in 2019 extended the statute of limitations by 20 years for certain civil lawsuits pertaining to sex crimes; however, that law was not applied retroactively.
The act also establishes special trial preference for the efficient resolution of cases. Specifically, it requires that the New York chief administrative judge of the Office of Court Administration promulgate rules concerning the timely adjudication of claims revived by the act. The act notes that the rules should take effect Aug. 24.
Child Victims Act
The new law is modeled on New York’s Child Victims Act (CVA), which was enacted in August 2019. The CVA similarly permitted a one-year window for individuals who were previously outside the statute of limitations to assert civil claims of child abuse against both individuals and institutions.
The CVA’s “revival period,” which was originally scheduled to close in August 2020, was extended through Aug. 13, 2021. Over 10,000 cases were filed in New York state courts under the Child Victims Act.
Similar to what occurred in the wake of the CVA, we expect to see a significant number of cases filed once the Adult Survivors Act takes effect. And in addition to permitting claims against abusers, as noted above, the act will increase claims against institutions for acts of negligence related to the sexual offense as well.
Reasons for Waiting to Bring Claim
At its core, the act reflects the reality that there are many rational reasons why survivors of sexual assault waited a long time, some even decades, to come forward about the abuse they endured.
First, as numerous experts have explained, it is very common for survivors to take a long time to psychologically process their trauma.
Second, many survivors were taught to keep such matters private, but were deeply concerned about retaliation, particularly if their abuser was wealthy and/or powerful. These concerns were not unfounded. Many survivors who did come forward in the past lost their jobs, got sued themselves, and were otherwise ostracized and marginalized within their professions and communities
Finally, many survivors lacked the resources or support network to come forward, including assistance of counsel.
Despite this history, and although numerous states, including New York, created “lookback windows” for child victims, New Jersey is now the only other state that has also done so for adults. In New Jersey, over 1,000 cases were filed over a two-year time period from 2019 to 2021.
New York’s Adult Survivors Act should thus serve as a model for other states to provide survivors of sexual offenses with an opportunity to have their day in court.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Roberta (“Robbie”) Kaplan is the founder of Kaplan Hecker & Fink LLP. In addition to a complex civil litigation practice, she advises clients on issues relating to discrimination, diversity, and inclusion.
Julie Fink is the managing partner at Kaplan Hecker & Fink LLP. She leads the employment practice and oversees all aspects of the firm’s management, growth, and strategic planning.
Rachel Tuchman is an associate at Kaplan Hecker & Fink LLP. She represents clients in complex civil litigation and investigations pertaining to gender discrimination, #MeToo issues, and Title VII and Title IX litigation in education and workplace settings.