Eric Turkewitz has been carefully watching the New York legislature, as it’s been busy writing new laws now that the Democrats hold a majority in the Senate for the first time in memory. The latest, called the “Child Victims Act,” has significant ramifications for both civil and criminal practice. Taking a moment off from neglecting the subways, Governor Cuomo signed the bill into law.
Today New York joined the growing list of states that allows victims of child sexual assault to come forward and bring suit for that assault, even if the attack is decades old. The law will also extend the statute of limitations on criminal actions.
On the civil side, the Child Victims Act will allow people to proceed up to the age of 55, where they claim that they were sexually assaulted as kids.
On the criminal side, the statute of limitations won’t start to run until the child has turned 23.
The five-year statute of limitations has long since been divorced from the occurence of the alleged crime and commenced instead from the putative victim’s reaching the age of 18. That meant the SOL ended when the victim reached age 23. The new law would have the SOL commence at 23, such that it ends at 28.
As Turk notes, it won’t be easy to prosecute a claim after years elapse. Evidence is gone. Memories fade, or are unearthed or invented. It will likely produce many cases of the “she said/he said” scenario that has become all too familiar of late, testing the notion of whether proof beyond a reasonable doubt will survive the horrific claims of sexually abusing a child.
There are undeniable reasons why children do not come forward when they’ve been sexually abused, and there is no question but that this is a serious problem. But is an additional five years needed for prosecution, from age 23 to age 28?
Passage of the Child Victims Act will finally allow justice for past and future survivors of child sexual abuse, help the public identify hidden child predators through civil litigation discovery, and shift the significant and lasting costs of child sexual abuse to the responsible parties.
The question is whether shifting the burden to the “responsible parties” is the answer or will result in cases based on believing the victim against which no one can defend. This doesn’t appear to be of much concern to the legislature.
New York is one of the worst states in the nation for survivors of child sexual abuse. New York currently requires most survivors to file civil actions or criminal charges against their abusers by the age of 23 at most, long before most survivors report or come to terms with their abuse, which has been estimated to be as high as 52 years old on average.* Because of these restrictive statutes of limitations, thousands of survivors are unable to sue or press charges against their abusers, who remain hidden from law enforcement and pose a persistent threat to public safety.
While criminal prosecution is the focus here, that civil exposure will remain available until the putative victim reaches the age of 55 years, because “most survivors” don’t “come to terms with their abuse” until an “estimated” 52 years of age, means that a civil defendant will be susceptible to being tarred as a child molester under the civil preponderance standard for a very long time. While this won’t put the defendant in prison, it will nonetheless have monumental consequences.
This isn’t to diminish the severity of child molestation, but the exposure is huge and essentially impossible to defend beyond denial. Will that be enough?
*Yes, the Senate bill says “as high as 52 years old on average.”