The New York Child Victims Act: Revival of Expired Claims of Child Sexual Abuse to Lead to Thousands of Lawsuits
August 14, 2019
By: Richard L. Weber
The Child Victims Act of 2019 (the CVA) enacted an extraordinary set of reforms that, among other things, “revived” long expired claims of childhood sexual abuse. As a result, the CVA will impact any institution or organization that served a youth population in any way at any point in time – thousands of lawsuits are expected to be filed within the next year against entities such as schools, churches, youth sports organizations, summer camps, and health clinics for alleged incidents of abuse that occurred years if not decades in the past.
Key changes implemented by the CVA include:
- The establishment of a one-time, one-year “revival window,” commencing on August 14, 2019. During the one-year window, any victim of child sexual abuse may commence a civil lawsuit against any party allegedly responsible for the abuse, regardless of how far in the past the alleged abusive event(s) occurred, and regardless of whether the alleged abuse was previously reported to law enforcement, employers, or supervisors.
- The establishment of a new statute of limitations for civil and criminal child sexual abuse claims; a victim of childhood sexual abuse is now able to bring claims for monetary recovery against an alleged abuser (and any institutions that were associated with the alleged abuser) at any point prior to the victim reaching age fifty-five.
- The establishment of a new statute of limitations for criminal prosecution of child sexual abuse claims – victims now have until age 28 to seek criminal prosecution of their alleged abuser(s).
- The elimination of the well-established pre-litigation “notice of claim” requirement for any child sexual abuse claim(s) alleged against public entities, such as school districts and municipalities. Previously, written notice of the claim to the public entity was required before commencement of the lawsuit, which notably remains in place for all other types of tort claims against public entities.
- The elimination of the opportunity for public entities to obtain pre-litigation examination of the plaintiff concerning the underlying events and the extent of injury or damage; such information must now be obtained by a defendant public entity through the normal litigation discovery process, as is the case with “private” defendants.
- The establishment of a mandate for issuance of new court rules by the Chief Administrator of the Courts to achieve “timely adjudication” of child sexual abuse claims – this mandate has been interpreted by the Chief Administrator to include specialized training for judges and other court personnel who will participate in adjudicating revived sexual abuse claims.
The desire to provide victims with an opportunity to achieve “closure” and compensation from alleged abusers is a laudable goal, but the dramatic changes implemented by the CVA also create a number of logistical issues for organizations that work or have worked with children. Many organizations with no prior notice of employee or volunteer misconduct will now be confronted for the first time with allegations of abusive incident(s) that potentially occurred decades ago. In many instances, there will be no prior history of a criminal complaint or investigation; indeed, perpetrators of child abuse often take extraordinary steps to ensure that their abusive conduct is not discovered by employers and associates. In many instances, a lawsuit on the newly-revived claim will be the first notice to an organization of alleged abuse at the hands of an employee or volunteer who has long-since departed the organization; in some instances, the alleged individual perpetrator will be deceased.
It is important to understand that the CVA does not change a number of established legal principles and rules. In particular:
- The burden to prove liability against the alleged individual perpetrator and any associated organization remains with the plaintiff – in short, it remains the burden of the plaintiff to prove liability in court.
- The rules of evidence concerning sexual assault and abuse claims do not change; alleged victims must still present sufficient evidence to prove the claims in Court.
- The law does not make organizations automatically liable for the unauthorized or unknown acts of its employees or volunteers. The plaintiff alleging claims against the organization must establish that the organization had notice or knowledge of the abusive conduct and failed to take proper steps to address the conduct and/or protect the alleged victim.
- Defenses to liability other than the statute of limitations remain available to defendants in child sexual abuse actions, including defenses of laches and due process, and defenses available to organizations who neither authorized nor knew of the alleged misconduct.
- The burden of proving damages – i.e., actual lost wages, actual medical expenses, and/or compensation for “pain and suffering” – remains with the plaintiff.
- The CVA does not “expand” the definition(s) or scope of the types of acts that may constitute sexual abuse – it simply addresses the time-period in which claims for sexual abuse may be raised.
Immediately upon the opening of the window at midnight on August 14, 2019, hundreds of cases were already on file with courts across the State. Any organization that is sued on a revived child sexual abuse claim should immediately secure legal counsel to evaluate and defend the lawsuit. It is also essential that the organization immediately contact its insurance agents and carrier – coverage may exist for child sexual abuse claims, even if the claims are decades old, but prompt communication with the insurance carrier and agent is essential. Going forward, organizations working directly with children should consider obtaining sexual molestation and abuse insurance coverage, and requiring any third parties working with children to obtain the same.
Bond attorneys have experience defending organizations that are sued as a result of the unauthorized misconduct of their employees and volunteers, and have defended organizations in child sexual abuse lawsuits on several occasions in the past. In addition, Bond has a team of attorneys who have prepared multiple informational webinars on the Child Victims Act, and are available to present a tailored webinar to your organization and staff.
If you have questions about the impact of the Child Victims Act, please contact Rick Weber (in Syracuse), Sharon Porcellio (in Buffalo) or any other attorney at Bond with whom you are regularly in contact.