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