Change is Upon us for Survivors of Sexual Assault- Statue of Limitations Reform Explodes Across the Country
By: Kim Dougherty, Justice Law Collaborative and Cristen Mendoza, Andrus Wagstaff, PC
From Vermont to Arizona, much needed statute of limitations reform in child sexual abuse cases is spreading like wildfire. In the wake of exposure of thousands of survivors of sexual abuse at the hands of clergy, doctors, teachers, coaches, and employees of other institutions and organizations, states across the nation are reacting and passing new legislation enabling childhood victims of sexual abuse to commence civil actions against both the perpetrators of the abuse and those institutions who employed and/or supervised them. Many of these newly enacted statutes employ a number of reforms to criminal and civil laws, which include one or more of the following:
extending the statute of limitations for sexual abuse by several years or even decades;
allowing for the tolling of the statute of limitations from the state’s age of majority by decades;
enacting discovery rules that allow victims of childhood sexual assault to bring suit within a certain number of years after they discover that injuries were caused by the past incidents of sexual assault;
providing windows of time for previously time barred claims of abuse of minors to be brought; and
allowing for the retroactive application of the newly enacted statutes of limitations, tolling statutes, and/or discovery statutes to individuals whose claims were previously time-barred by the previously existing statute of limitations.
In 2019, 39 states and the District of Columbia (D.C.) introduced Bills to reform civil and criminal laws related to child sexual abuse, and 21 states and D.C. passed those Bills this year.[1] Ten states have no civil statute of limitations, but some require a felony conviction.[2] Sixteen states and D.C. have previously, and many just recently, revived an expired civil statute of limitations for a period of time to file a lawsuit.[3] The reform of these laws vary from state to state and each has their own specific nuances with regard to the application of the reforms. Given the particularly sensitive nature of sexual abuse lawsuits, it is imperative that practitioners carefully research and understand the intricacies of these newly enacted statutes in their respective states so that they are able to effectively communicate any legal limitations to a prospective client.
More specifically, it is important that practitioners recognize that not all of the newly enacted statutes are created equal. Indeed, the recent legislative reforms in some states vastly surpass those of others in terms of serving to protect the interests of victims of childhood sexual assault. For example, on July 1, 2019 in the State of Vermont, wide sweeping amendments to Vermont’s previous statute of limitations for child sexual abuse came into effect.[4] Prior to this, the statute of limitations for a victim of childhood sexual abuse was a mere six years. Vermont’s newly enacted legislation completely eliminates any civil statute of limitations for victims of child sexual abuse and broadly defines the term “child sexual abuse.”[5] Perhaps most importantly, Vermont law now provides for compete retroactive application of the statute, meaning a victim can bring suit against a perpetrator and non-perpetrator regardless of the statute of limitations that was in effect at the time the abuse occurred. However, for actions that would have been barred by the statute of limitations that was in effect on June 30, 2019, an award of damages against an entity who employed the perpetrator are limited to circumstances where there is a finding of gross negligence.[6]
The State of New York recently enacted new legislation, effective on February 14, 2019, which provides an opportunity for childhood victims of sexual assault to seek justice. Of great significance for childhood[7] survivors of sexual abuse that occurred several years ago, this legislation provides that any survivor of child sexual abuse, whose civil action for said sexual abuse was previously time barred by the statute of limitations, has until August 14, 2020 to commence a lawsuit against defendants on the basis of intentional or negligent conduct.[8] It also serves to extend the statute of limitations for childhood victims to the age of 55.[9] Of additional importance, is that New York also waived the requirements of its governmental tort claim act, so public entities cannot hide behind that act.[10]
New Jersey also passed significant legislation signed into law on May 13, 2019, which will become effective on December 1, 2019.[11] This legislation will extend the statute of limitations for victims of sex abuse against minors under the age of 18 to 37 years after the minor reaches the age or 18, or within 7 years of the date of reasonably discovery of the injury, whichever is later.[12] The new legislation also extends the civil statute of limitations for adult sexual assault victims to 7 years from the date of the offense or 7 years from the reasonable discovery of the injury and its causal relationship to the act.[13] Finally, this new legislation will provide for a two-year revival window, effective December 1, 2019, for victims abused as minors or adults against perpetrators and institutions.[14]
In contrast, some states have recently enacted legislation that has been touted as providing for great changes, however, they appear to fall short in several respects. For example, recently enacted legislation in Rhode Island extends the civil statute of limitations against both perpetrators and non-perpetrators to 35 years after the victim reaches the age of 18 and provides for a seven year delayed discovery statute against both perpetrators and non-perpetrators.[15] Rhode Island law also allows the retroactive application of the newly enacted statute of limitations against the perpetrator defendant.[16] However, this newly enacted statute does not provide for the retroactive application of the newly enacted statute to non-perpetrator defendants.[17] In other words, as currently drafted, actions against non-perpetrators (i.e. institutional defendants) are time barred if, as of July 1, 2019, the action was not filed within 3 years since the victims 18th birthday. As such, although victims Rhode Island law unequivocally extends the statute of limitations against perpetrators, it appears survivors will be time barred from bringing suit against culpable institutions who employed those perpetrators. Given that the individual perpetrators will, more likely than not, have limited assets and zero insurance coverage for their deeds, Rhode Island’s statute effectively creates an arbitrary cut off for certain victims’ ability to obtain any significant monetary award.
Another crucial matter practitioners need to be aware of are the intricacies involved in actions against institutions run by the state and/or other municipal governmental entities, such as public schools and universities and hospitals, under various governmental tort claims acts. In actions involving entities run by the State, the issue of sovereign immunity must be taken into account. The waiver of sovereign immunity is often addressed by statute often involves strict procedural and notice requirements which must be met as a prerequisite for bringing suit against the State for the torts of its employees. Additionally, in some states, actions against the State for torts committed by State employees must be brought in an entirely separate court.[18] Actions involving municipal defendants will also likely involve a navigating a number of governmental immunities, as well as strict notice requirements. Not all states followed New York’s lead when amending the law to include that filing a notice of claim or notice of intention to file a claim is not a condition precedent to the commencement of a claim against a governmental defendant. [19] Other state’s laws may not have such exceptions written into their state’s statutes and a practitioner should be prepared with a plan to attempt to address these shortcomings.
Not all states statutes are created equal in their efforts to protect the rights of survivors of sexual assault. It is important to keep in mind the unfortunate reality that a number of states have yet to amend their laws to reflect the reality of the unique challenges and circumstances victims of sexual assault face. As a practitioner in this area, we encourage other lawyers to contact their legislators and encourage them to pass laws that will protect children and others form sexual abuse. Proponents of new legislation now have dozens of pieces of legislation to use in pushing to change their own state laws. Vermont’s statute is by far the strongest and most favorable for survivors and it should be used as a model for legislation in respective states. Join our fight to provide avenues of justice for survivors of sexual assault and advocate for change in your state.
[1] See https://www.childusa.org/2019sol/#b.
[2] See id.
[3] See id.
[4] See Vt. Stat. Ann. tit. 12, § 522 (West)
[5] See id. “‘childhood sexual abuse’ means any act committed by the defendant against a complainant who was less than 18 years of age at the time of the act and which act would have constituted a violation of a statute prohibiting lewd and lascivious conduct, lewd or lascivious conduct with a child, felony sexual exploitation of a minor in violation of 13 V.S.A. § 3258(c), sexual assault, or aggravated sexual assault in effect at the time the act was committed.”
[6] Id.
[7] Victims who were less than 18 years old when the offense occurred.
[8] CPLR 214-g
[9] CPLR § 208
[10] See, N.Y. Gen. Mun. Law § 50-e (McKinney); N.Y. Ct. Cl. Act § 10 (McKinney).
[11] TORTS—LIMITATION OF ACTIONS, 2019 NJ Sess. Law Serv. Ch. 120 (SENATE 477) (WEST)
[12] Id.
[13] Id.
[14] Id.
[15] 9 R.I. Gen. Laws Ann. § 9-1-51 (West)
[16] Id.
[17] Id.
[18] See, e.g. N.Y. Ct. Cl. Act § 8 (McKinney) and N.Y. Ct. Cl. Act § 9 (McKinney)
[19] See, N.Y. Gen. Mun. Law § 50-e (McKinney); N.Y. Ct. Cl. Act § 10 (McKinney) and N.Y. Educ. Law § 3813 (McKinney).