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STATE

What to Know About the Adult Survivors Act, New York’s New Law Allowing Civil Suits Over Past Sexual Abuse


Gov. Hochul signs the Adult Survivors Act (photo: Darren McGee/Governor's Office)


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

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