Key Takeaways:

-New York’s Child Victims Act states a victim now has until age 55 to bring a civil action for allegations of child sex abuse

-The statute contains a “look back” or “revival” period to pursue civil action against the alleged abuser where the statute of limitations already expired

-Claims are permitted against employers and/or supervisors in charge of abuser

-Civil claims may commence August 19, 2019

Background

New York’s passage of the Child Victims Act strips away the shield of the statute of limitations behind which sexual abusers were able to take refuge for their horrific predations. Until this year, a child victim of sexual abuse had to seek criminal redress by the age of 23 and civil recourse by ages 19 or 21. The very nature of these crimes created mental and emotional barriers to victims coming forward and holding their attackers accountable. In February 2019, the New York law changed dramatically when the criminal statute of limitations was extended by five years from the age of 23 to 28. A child victim now has until the age of 55 to commence a civil action for allegations of child sex abuse.

Most importantly, and perhaps most troubling, the statute contains a “look back” or “revival” period to pursue civil actions against abusers where the statute of limitations has already expired. It permits any person who was sexually abused before the age of 18 to bring a civil action to recover money damages for physical, psychological, or other injury or condition suffered by such person — regardless of when the abuse occurred. Such a claim must be commenced no earlier than Aug. 19, 2019 and no later than Aug. 19, 2020.

Claims against employers and/or supervisors

The scope of the law, however, is not only limited to the abusers for their heinous acts — it also permits claims against the employers and/or supervisors in charge of the abusers. This includes schools, houses of worship, government institutions, charitable organizations, childcare providers, and other employers and institutions where the clients are children.

State and municipal entities are subject to suit as well because such claims have been exempted from notice of claim or notice of intention statutes, which serve as conditions precedent to suits and create shorter time limits to present a claim.

Given the passage of time — and the fact that the pedophile would usually be considerably older than the victim — the abuser is likely deceased, missing, or impoverished while the employer or institution remains viable and covered by insurance, which means institutional entities are likely to be the primary targets of this revival window.

Abuse covered by the statute includes sexual contact, sexual conduct, incest, forcible touching, or use of a person under the age of 18 in a sexual performance. Consent is not a defense.

Such an employer would not be liable simply because it employed the abuser. The doctrine of respondeat superior (i.e., the employer is vicariously liable for the acts of its employees) does not apply to sexual abuse because an employer cannot be held vicariously liable for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer’s business. An employer or supervisor can, however, be held liable for negligent supervision, negligent hiring, and common law negligence.

To state a claim for negligent supervision or retention under New York law, in addition to the standard elements of negligence, a plaintiff must show: (1) the tortfeasor and the defendant were in an employee-employer relationship and; (2) the employer knew or should have known of the employee’s propensity for the conduct which caused the injury prior to the injury’s occurrence.

There is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee. However, there is a duty to investigate an employee’s background for the protection of the institution’s children once facts exist that establish the employer either knew or should have known information concerning the employee’s unlawful sexual propensities.

Institutions can be defended on the grounds that it did not know and had no reason to know if a particular person was an abuser of children. Proving a negative — that an institution did not know something — is difficult, but the more facts that can be established about the period in question means the more likely the claim can be challenged, or a particular person knew or should have known facts, which would put a reasonable person on notice of an employee’s unlawful sexual propensities. The understanding of pedophiles has evolved over time and the standard of care on the part of institutions should be judged based upon the state of understanding at the time, rather than the current understanding. This is likely to be a hotly contested issue in any litigation regarding decisions made years ago.

How does an institution protect itself?

For past claims that are now subject to revival, the institution is at a grave disadvantage. Personnel have moved on or have passed on. Memories have faded. Records have been lost or disposed of in the ordinary course of business.

It is imperative to stop the loss of these historical records:

  • Personnel files of individuals who had regular access to children need to be preserved
  • Policies and procedures regarding hiring and supervision need to be retained
  • Insurance records need to be collected or reconstructed
  • It is critical to determine who insured the institution for general liability, professional liability, and directors and officers liability, and the periods when such insurance was in place. If the policies do not exist (e.g., ledgers, check registers, and the files of agents or brokers), it may lead to evidence of the existence of insurance policies. Obtaining coverage now for unknown past claims may be available.

Mandatory reporting

Going forward, institutions must be vigilant:

  • Background checks for employees having access to children is essential
  • A complaint of sexual abuse must be reported to the police
  • A suspicion of sexual abuse should be investigated promptly through the human resources department of the institution

In addition, New York law requires mandatory reporting of any type of child abuse or neglect on the part of many professionals and institutions who serve children.

Pursuant to Soc. Serv. Law Section 423, the following persons and officials are required to report:

  • Physicians, physician assistants, surgeons, medical examiners, coroners, dentists, dental hygienists, osteopaths, optometrists, chiropractors, podiatrists, residents, interns, psychologists, registered nurses, social workers, or emergency medical technicians
  • Licensed creative arts therapists, marriage and family therapists, mental health counselors, or psychoanalysts
  • Hospital personnel or Christian Science practitioners
  • School officials, including but not limited to, teachers, guidance counselors, school psychologists, school social workers, school nurses, or administrators
  • Full- or part-time compensated school employees required to hold temporary coaching licenses or professional coaching certificates
  • Social services workers, daycare center workers, providers of family or group family daycare, or any other child care or foster care worker
  • Directors of children’s overnight camps, summer day camps, or traveling summer day camps
  • Employees or volunteers in residential care facilities for children that are licensed, certified, or operated by the Office of Children and Family Services
  • Mental health professionals, substance abuse counselors, alcoholism counselors, or all persons credentialed by the Office of Alcoholism and Substance Abuse Services
  • Peace officers, police officers, district attorneys or assistant district attorneys, investigators employed in the office of a district attorney, or other law enforcement officials

Reporting by Other Persons Soc. Serv. Law Section 414 Any other person who has reasonable cause to suspect that a child is abused or maltreated may report.

Institutional Responsibility to Report Soc. Serv. Law Section 413

Whenever a person is required to report in his or her capacity as a member of the staff of a medical or other public or private institution, school, facility, or agency, he or she shall make the report as required and immediately notify the person in charge of such institution, school, facility, or agency, or his or her designated agent. The person in charge, or the designated agent of such person, shall be responsible for all subsequent administration necessitated by the report. Any report shall include the name, title, and contact information for every staff person of the institution who is believed to have direct knowledge of the allegations in the report. Nothing in this section or title is intended to require more than one report from any such institution, school, or agency.

A medical or other public or private institution, school, facility, or agency shall not take any retaliatory personnel action against an employee because such employee believes that he or she has reasonable cause to suspect that a child is an abused or maltreated child and that employee therefore makes a report in accordance with this title. No school, school official, child care provider, foster care provider, residential care facility provider, hospital, medical institution provider, or mental health facility provider shall impose any conditions, including prior approval or prior notification, upon a member of their staff specifically required to report under this title.

What does it mean?

The investigation of the sex abuse scandal at Penn State University provides a guide. Penn State had many protective policies and procedures, including those related to sexual harassment, sexual assault, and the protection of whistleblowers, but there was no centralized office, officer or committee to oversee institutional compliance with the laws, regulations, policies, and procedures. There was no systematic training in the procedures. There was no audit process. There was no centralized human resource office responsible for making uniform policies to oversee background checks, hiring, promotion, termination, onboard-orientation, and management training. There was no mechanism for tracking employee training mandated by state and federal law or the university’s policies.

Risk managers, officers, and directors of organizations dealing with children must take concrete steps to ensure that their employees are trained in these responsibilities; that there is compliance oversight; and that there is whistleblower protection. Boards of Trustees and Boards of Directors must be educated on their responsibilities, duties, and liabilities and create a culture of full disclosure by those who report to them.

Prosecutors and juries are going to have little sympathy for organizations who deal with children who do not have rigorous policies and enforcement of such policies when child abuse is suspected. The many reported scandals make clear that once an incident of suspected child abuse is reported, the institution should have an investigative plan in place using independent counsel to investigate the incident to coordinate with law enforcement officials and to protect it from the actions of a child predator.