As of November 24, the Adult Survivors Act went into effect in New York
State, allowing survivors of sexual offenses one year to file civil claims
for cases that occurred even decades ago.
The Adult Survivors Act (ASA) was signed into law in May by Governor Kathy
Hochul, the state’s first female governor, and removes the statute of
limitations for certain civil claims regarding past sexual offenses between
November 24 2022 and November 24 2023, regardless of when the alleged crime
took place. Like the Child Victims Act before it, the ASA’s implementation
means that victims can address alleged sexual offenses they experienced
years or decades ago but did not bring to court at the time. Reasons for
such past inaction can span trauma, lack of resources, threats, and
unsupportive environments.
The Adult Survivors Act does not reopen the opportunity for criminal
prosecution, but victims can seek justice through the civil court system.
Rachel Tuchman, a lawyer at Kaplan Hecker & Fink in New York, is one of the
attorneys representing E. Jean Carroll in her ongoing defamation lawsuit
against former President Donald Trump. The case unfolded when Caroll
alleged in 2019 that Trump sexually assaulted her in a New York City
department store in the 1990s. Trump publicly denied the assault, saying
“I’ve never met this person in my life” and “she’s not my type.” As Carroll
was no longer able to press criminal charges, one way she would be able to
prove the assault was by trying to prove that Trump’s statements qualified
as defamation.
But now the Adult Survivors Act has enabled Carroll to file a second
lawsuit against Trump: for battery at the time of the alleged assault, and
for recent alleged defamatory statements in October.
Kaplan Hecker & Fink are working with a number of clients filing claims
under the ASA. “[W]e are not talking about sending someone back to jail
after 25 years,” Tuchman said in an interview, “we are simply talking about
monetary relief. Every single person who walks through our doors has
incurred enormous costs to try to resolve the mental health struggles they
have faced from sexual assault.”
Under the ASA, victims can bring claims against individual defendants but
also against responsible entities such as employers, universities,
government affiliates, and hospitals. The scope of behavior covered
includes violent crimes such as rape, but also other numerous sexual
offenses defined in the New York State Penal Code. This includes, but is
not limited to: sexual abuse; forcible touching; and ‘spiking’ for sexual
assault, when a victim is unknowingly given drugs or alcohol.
Passage of the Adult Survivors Act
Since the #MeToo movement gained momentum in 2017, there has been an
ongoing public conversation about why survivors of sexual misconduct often
do not come forward at the time of the offense. One common thread has been
the existence of power dynamics where the perpetrator holds economic or
other influence that coerces the victim to stay silent. Another is that
trauma takes time to process and victims may struggle to confront their
experience publicly. This is made worse by the fact that social norms have
often led to victims being marginalized.
Over the last five years many state and local governments have enacted
#MeToo-inspired legislation intended to address sexual harassment,
violence, and other misconduct. This includes the passage of ‘revival
statutes,’ which suspend the statute of limitations for civil actions
related to sexual offenses to give survivors opportunity to seek legal
redress. To date, most of these revival statutes have been aimed at
childhood sexual abuse, such as New York’s 2019 Child Victims Act (CVA).
Carroll, an established journalist and author, has said she is one example,
accusing Trump of sexual assault decades ago. When Carroll was finally
ready to come forward about her experience, the statute of limitations
meant that she could no longer file criminal charges or a civil suit
against Trump, despite the mental and financial toll she has said the
alleged rape has taken on her life. In the face of this challenge,
Carroll’s legal team decided to advocate for a law that would help
survivors seek justice through the court system.
Along with numerous advocacy groups in the state, the team worked to get
the Adult Survivors Act in front of lawmakers. Tuchman said that “there was
still this deep misunderstanding on the part of many in New York of why it
would take so much time to come forward, particularly for adults who were
sophisticated and had networks and access to attorneys.”
Ultimately Tuchman believes that this misconception was addressed in part
by numerous survivors sharing their stories so publicly. “E. Jean’s story
helped individuals understand why it takes so long to process this trauma,
and why she was petrified to come forward against someone like Donald Trump
– who can represent any other powerful figure, like an employer.”
In June 2021 the Adult Survivors Act passed unanimously in the New York
State Senate, but stalled in the Assembly, though both chambers had
Democratic supermajorities. But it then passed a second time in the Senate
in April 2022, and in May 2022 it finally passed in the Assembly. At its
core, the ASA reflects the reality that there are many rational reasons why
survivors may wait a long time, some even decades, to come forward about
the sexual abuse they endured.ADD
On May 24, 2022 Democratic Governor Kathy Hochul signed the Adult Survivors
Act into law at a bill-signing ceremony in the state Capitol in Albany,
attended by survivors and those who had supported the legislation. During
the ceremony Hochul declared “to those who thought they got away with
horrific crimes they committed I just have one message: Your time is up.
Your victims will see you in court and you will be brought to justice.”
Drew Dixon, a survivor who attended the ceremony, said, “I'm really
overwhelmed with gratitude today, because so many people will be set free.”
State Senate Majority Leader Andrea Stewart-Cousins stated that prior laws
had “failed adult survivors and prevented them from accessing true justice”
because it takes “time to come forward, particularly when faced with the
trauma that accompanies disclosures.”
State Senator Brad Hoylman, a Manhattan Democrat who sponsored the ASA
alongside Assemblymember Linda Rosenthal, released a statement of
appreciation to survivors saying: “We would not be here today without the
courage of your convictions that propelled you to share your deeply
personal stories about the sexual abuse that upended your lives and made
legislative passage possible.”
This is not the first time that New York lawmakers have lifted a statute of
limitations where disclosure of the crime involves complex circumstances.
In 2019 the Child Victims Act (CVA) allowed victims of child sexual abuse
to file civil claims retroactively within a two-year window and extended
the deadline for future cases until the age of 55.
During the period between August 2019 and August 2021, over 9,000 lawsuits
were filed in New York State by alleged victims who had suffered trauma
without retribution since childhood – though experts suggest that this
number represents merely a fraction of the victims eligible. Nearly 65% of
claims were filed against entities related to the Catholic Church; the CVA
also led to plaintiffs bringing forward cases of child abuse against
high-profile individual defendants such as the actor Kevin Spacey and
Prince Andrew. In September 2022, President Biden signed into law the
Eliminating Limits to Justice for Child Sex Abuse Victims Act of 2022,
which removed the statute of limitations entirely for federal civil
lawsuits relating to child sex abuse including forced labor and child sex
trafficking. However this law does not apply retroactively.
Why Wait?
Amid the #MeToo movement and debate in New York over the Child Victims Act
and Adult Survivors Act, one question that has come up repeatedly is: why
do so many victims not come forward at the time of the alleged abuse?
As explained by Lucia Osborne-Crowley, a specialist in sexual offense
trials, “there is a very overwhelmingly common pattern among young adult
survivors called delayed disclosure. This essentially means that people who
are sexually abused almost never report at the time, or even immediately
afterwards...It is by far the most common outcome.”
In the Ghislaine Maxwell trial, a sexual abuse expert testified that many
of the victims had delayed their disclosure about the alleged abuse they
had faced at the hands of Maxwell and Epstein until well into adulthood.
This is possibly because they were not able to articulate the severity of
their experiences due to trauma, or even that they could not immediately
identify the incident as a crime. Similarly, the expert in Anthony Rapp’s
civil trial against Kevin Spacey concluded that the victim had experienced
delayed-onset PTSD years later as an adult. Ultimately, the jury in this
trial found Kevin Spacey not liable for battery.
In the United States, RAINN (Rape, Abuse & Incest National Network)
estimates that the vast majority of sexual offenses are perpetrated by
someone familiar with the victim. Studies have shown that a delayed
disclosure reaction is even more likely when a victim is targeted by
someone close to them, such as a partner, friend, relative, boss, coworker,
or other important figure. “Often, the first thought is ‘I’ve done
something to cause this’ or ‘I’m going to get into trouble,’” explains
Osborne-Crowley. “There is a lot of self-blame that goes into delayed
disclosure.”
Osborne-Crowley noted that the abuse often goes along with manipulation and
grooming, which are used to keep victims silent; “these are psychological
weapons which cause victims to not trust their own perception of what
happened.” To make matters more complicated, Osborne-Crowley notes that
memories become repressed because victims store trauma in a different part
of the brain that may be harder to access. This can be difficult for a jury
to understand; “most people don’t know that traumatic memory is stored
differently and retrieved differently. No one knows that instinctively
unless they have experienced trauma.”
Before the #MeToo movement, survivors of assault and abuse often faced a
broader environment that did not support victims – and experts say there is
still a long way to go. Tuchman said that “the #MeToo movement was a
watershed movement that educated so many people on why it took survivors so
long to come forward. [There is] a counter-narrative that women are coming
forward with false stories in droves or only seeking a financial reward.
That counter-narrative silences women further, and it is important to
educate individuals publicly about how trauma often inhibits immediate
reporting.”
Historically, women who experienced inappropriate groping in a workplace
environment were told to go along with it or ridiculed, and more often than
not stayed quiet in favor of job stability. When Kaplan Hecker & Fink began
taking on cases of this nature, Tuchman quickly noticed that “it was very
clear that silence was a systematic problem. So many women had not come
forward as a result of being threatened silently through demand letters and
defamation threats, threats to their employment and livelihood, a loss of
community.” Many victims internalized shame because they feared serious
ramifications in their personal, professional, and social lives.
During the Harvey Weinstein and Ghislaine Maxwell trials, many survivors
were called forward to present witness testimony but were unable to file
their own civil lawsuits due to the statute of limitations. With the
implementation of the Adult Survivors Act they can now take their cases to
court. Having spoken to a number of these survivors for an upcoming book,
Osborne-Crowley said, “for them it’s absolutely life-changing. It is
validating to acknowledge that the legal system is not fit for purpose.”
However, the witness testimonies in the Maxwell trial led Osborne Crowley
to believe that justice systems are still not suited to victim disclosure.
“In initial police interviews you are in a room with strangers, often men,
which is not conducive to giving graphic details of an assault,”
Osborne-Crowley said, “you will often see defense teams say that victims
have made up or changed their stories to seem more credible.” In reality,
working through sexual trauma is a complex and lengthy process in which
authorities must be specially trained in order to support victims rather
than undermine them. Osborne-Crowley said that sexual offenses must be
considered uniquely because “we will continue to see these patterns as long
as the system mistreats victims.”
Due to a combination of these factors, the majority of sexual offenses are
unreported to authorities. The federal Centers for Disease Control (CDC)
estimates that over half of all women have experienced physical sexual
violence in their lifetime. One in four women has experienced attempted
rape and one in three women has experienced harassment in a public space.
But the NYC Alliance Against Sexual Assault estimates that only 3% of rapes
are actually reported to the police, a number that is only lower
historically. Of the sexual assaults which are actually reported, RAINN
estimates that only 8% result in incarceration. With such a criminal
justice system that fails victims so often, it is difficult to estimate
just how many individuals in New York may seek retribution in civil court
this year under the Adult Survivors Act.
Help for Victims
It is clear from the statistics of unreported sexual crimes that both legal
and societal shifts are necessary to bring perpetrators to timely justice.
New York’s Adult Survivors Act only allows sexual offenses to be brought to
civil court, not criminal court, meaning that no perpetrator will face
imprisonment.
Questions remain about how to create an environment that supports victims
seeking criminal justice for sexual offenses when they occur.
Osborne-Crowley suggests that there are many tangible improvements that
could be made, including: ‘trauma-informed’ first interviews with women who
are experts in handling sexual offenses; training across police forces for
understanding sexual trauma; and specialised task forces dedicated to
sexual crimes.
Tuchman believes that the response within the criminal system is already
improving, but that “we should be continuing to encourage this training and
ensure that the types of questions being asked to a survivor do not come
off as hostile, abrasive, or re-traumatizing.”
On a societal level, Osborne-Crowley is adamant that safe spaces must be
created for victims. People must be more sensitive when discussing sexual
offenses, she argues, as the subject matter can be triggering to many women
who have experienced abuse but are yet unable to come forward. This is
especially pertinent in the wake of high-profile trials and more to come,
which she describes as “a lightning rod for vitriol and abuse from the
public...they give ‘permission’ for people to speak about victims in a very
abhorrent way.” On the other hand, E. Jean Carroll’s work on the Adult
Survivors Act has helped show that these high-profile cases can pave the
way for survivors; but commentators should be conscious when discussing the
sensitive elements of sexual offenses with others, considering that more
women than not have experienced some form of sexual violence in their lives
and the topic itself may be a source of trauma.
Shawn Crowley, a partner at Kaplan Hecker & Fink, is hopeful that the Adult
Survivors Act is already changing society’s perception and support of
victims for the better. “Until pretty recently, it was not clear to most
people that unwanted touching and groping [which are covered under the
Adult Survivors Act] were wrong, and they were dismissed as an unfortunate
part of being a woman. The more we can do to normalize the fact that it is
not OK, that you should come forward, that you will be believed when you do
come forward, creates a safer environment for survivors.”
Filing Claims Under the Adults Survivors Act
Crowley notes that the greatest difficulty in trials for sexual offenses is
that “cases become harder to prove the further we are from the incident.”
DNA becomes harder to find, memory fades, and records become less
accessible. Yet it is hardly impossible, and legal teams are already
preparing evidence for decades-old cases to present within the one-year
lookback window under the Adult Survivors Act.
Tuchman and Crowley detailed some examples of evidence that can be used
retroactively:
Sexual Assault Forensic Exam: otherwise known as a rape kit. If the victim
went to the authorities at the time and had DNA samples taken, this
information may still be available. Even if the DNA is no longer available,
there may be ER admission records that could support the claimant’s case
and verify alleged timeframes.
First-hand contemporaneous records: victims may be surprised to know that
evidence like diary entries or writing at the time can be fundamental to
their case. Any firsthand account, if available, can prove the timeframes
and details of an alleged offense.
Secondhand testimony: similarly, if victims told someone else – parents,
friends, authority figures – at the time, it can be powerful supporting
evidence.
Record of Change in Disposition: it can be particularly difficult to
establish a timeline in retroactive sexual offense trials. If someone close
to the victim, like a therapist, guidance counselor, or teacher, was able
to record a notable change in behavior around the alleged timeframe, this
can support the victim’s testimony – even if the victim did not attribute
these changes to the sexual abuse they faced.
Traditional Evidence: there are many types of evidence that you could find
in a typical crime scene such as physical objects, video evidence, notes
and emails, relevant voicemails, et cetera.
Hardly an exhaustive list, it shows that despite many challenges it is in
fact possible to gather evidence for claims of sexual offenses alleged to
have happened well in the past.
Another obstacle survivors face is the perceived inability to hire decent
legal counsel. “On the civil side, many individuals feel as though they may
not have the resources to come forward with the support of an attorney,”
said Tuchman, a leading attorney specializing in sexual offenses. “It is
important to understand that, depending on the circumstances, lawyers may
be able to take their case on either on a pro bono basis or on a
contingency basis (meaning that the individual does not have to pay
anything up front, and the lawyer will recover a percentage of any award
ultimately granted).”
There are many resources available for victims of sexual offenses,
including mental health support and legal aid. Survivors in New York may
consult the Sexual Assault Bill of Rights; there is a free hotline
(1-800-942-6906); the state’s Rape Crisis Prevention Program; the National
Sexual Violence resource center, and free legal aid through the New York
Legal Assistance Group.
***
by Alicja Hagopian, Gotham Gazette
@GothamGazette
