Recent events continue to turn public attention toward broadening compensation for victims of sexual abuse. Sexual assault and abuse cases are not new, but with social media and constant news cycles, these cases have appeared to be more prevalent. Numerous state laws have recently been amended to allow much larger windows of time in which to file civil lawsuits based on sexual abuse claims.

Abusers come from all walks of life and circumstances, including those who were thought to be trusted individuals, such as teachers, coaches, clergymen, school bus drivers, police officers, daycare workers, and medical providers including trusted doctors. Companies that employed such individuals may now face increased exposure to litigation for incidents that happened decades ago.

Most State Legislatures Have Introduced Sex Abuse Statute of Limitation Legislation in 2019

Statutes of limitation (“SOL”) establish deadlines by which lawsuits must be filed. Ten states have no SOL for civil sex abuse litigation; plaintiffs may file suit any time after the alleged abuse. Twenty-nine states have either already passed new SOL bills or will have new SOLs effective in 2019. Thirty-eight states have introduced some form of sexual abuse SOL legislation in 2019, leaving only eighteen states to have not done so yet this year.[1] (See the table below for a summary.)

Nearly every state suspends or “tolls” the statute of limitation for civil actions while a person is a minor, and many states have adopted additional extensions for cases involving sex abuse. One such increasingly-popular provision allows for an extension of time following discovery of the abuse or harm, otherwise known as “date of discovery” extensions. Another concept, the “look-back window,” establishes a short time period within which victims of any age may file a claim, regardless of the expiration of existing statutes of limitation. Opponents of look-back windows argue such laws are inherently unfair because victims’ memories become less reliable over time and that such provisions would simply result in paydays for trial lawyers. Despite these concerns, fifteen states have already enacted such look-back legislation.[2]

For example, in 2013, Minnesota passed the Child Victims Act.[3] Prior to its passage, victims had until age 24 to bring a childhood abuse lawsuit. The 2013 law removed the age qualification entirely and provided for a three-year look-back window. As a result of the amended law, over nine hundred people sought damages for incidents that would have been otherwise time-barred.[4] In another example, in 2002, California enacted a one-year “look-back” statute. As a result, roughly 1,000 civil actions alleging childhood abuse were filed that year. The Catholic Church alone has since paid more than $1 billion in payouts to victims.[5] Currently, the California legislature is considering legislation containing a second “look-back” period.

This year, New York enacted its own Child Victims Act, extending the statute of limitation for civil sexual abuse claims from the previous age limit of 23, to the new age of 55.[6] The Act, which allows prosecution of both public and private entities, also provides for a one-year “look-back window,” commencing August 14, 2019.[7] The combination of these two provisions have already prompted a flurry of activity in anticipation of litigation. Reportedly, one New York attorney has already begun preemptively sending demand letters to her clients’ offenders and has recovered $850,000 for one client.[8] Most recently, celebrity financier Jeffrey Epstein’s federal arraignment in New York on charges of underage sexual abuse has fueled interest in The Act, prompting plaintiffs’ lawyers and advocacy groups to actively solicit potential plaintiffs by heralding The Act’s more generous SOL provisions.[9] One Epstein accuser plans to file a civil suit on August 14, the day The Act takes effect.; she will likely be joined by many others.[10]

Similarly, in New Jersey, a new law taking effect December 1, 2019 will allow victims to bring claims until they reach 55 years of age, or within seven years of the date of discovery, and will include a one-year “look-back” period.[11]

Below, is a summary of jurisdictions with active legislative developments in sexual abuse statutes of limitation (“SOL”) for 2019 to date.[12] Note that this table does not display the 38 states that have introduced statute of limitation legislation in 2019.

Jurisdiction

New SOL Effective in 2019

Bill Passed in 2019

Revival of Expired Civil SOL

No Civil SOL

Alaska

X

Arizona

X

X

X

California

X

Connecticut

X

X

Delaware

X

X

Florida

X

Georgia

X

Hawaii

X

Illinois

X

X

Iowa

X

X

Maine

X

X

Massachusetts

X

Michigan

X

Minnesota

X

X

Montana

X

X

X

Nebraska

X

X

Nevada

X

X

New Jersey

X

X

X

New Mexico

X

New York

X

X

X

North Dakota

X

X

Tennessee

X

X

Texas

X

Utah

X

X

X

X

Vermont

X

X

X

X

Washington

X

X

Washington D.C.

X

X

X

Total

12

17

15

10

Asserting Appropriate Defenses While Considering Sensitivity to Victims’ Claims

With the anticipation of a significant increase of sexual abuse litigation, some organizations have established victim compensation funds as a proactive means of resolving potential sex abuse claims. These settlement programs offer predictable, expedient claim outcomes to both victims and potential defendants by providing money in return for a release of claims. In New York State, the Catholic dioceses of New York City, Rockville Center, Brooklyn, Syracuse, and Ogdensburg have together paid over $200 million to nearly 1,000 victims to date.[13]

In litigated claims, on the other hand, a number of defenses asserted by organizational co-defendants (rather than the primary abuser-defendant) have proven successful. The victims’ claims often involve traumatic offenses, and therefore the defenses asserted by the organizational defendants should be sensitive to the underlying events. Among those defenses, the organizations must always incorporate an analysis of the relevant jurisdiction’s statute of limitation, particularly in light of the ever-shifting dynamic surrounding the statutes of limitation in civil sexual abuse claims. Numerous factors can influence the relevant statute of limitation applicable to each claim, such as the victim’s military status;[14] the use of psychotherapy as a means of victim access; [15] and, in the case of a delayed date of discovery, the circumstances surrounding how a victim becomes aware of abuse. [16] Successful defenses have argued for shorter applicable statutes of limitation on the basis that victims declined to promptly file claims despite long-standing prior knowledge of abuse.[17] These defenses rely heavily on factual support, thus thorough investigation and effective discovery techniques are critical.

Additionally, sexual abuse lawsuits often carry negligent hiring and training claims. Accordingly, while not minimizing the gravity of the underlying abuse, defendants must consider challenging plaintiffs’ theory of vicarious liability. In a 2012 Pennsylvania case, for example, the defendant obtained summary judgment on plaintiff’s negligent hiring claim by arguing that the plaintiff failed to show that defendant-employer knew or should have known that its employee would harm another person, particularly in light of the fact that the employer obtained a background check and child abuse clearance for its employee.[18] In another case resulting in a failed theory of vicarious liability, a 2017 Massachusetts jury returned a complete defense verdict in the face of evidence that the defendant reasonably publicized and enforced organizational policy that expressly prohibited the abuser’s conduct toward plaintiff.[19]

In other instances, juries have concluded that the plaintiff either bore some culpability for, or outright consented to, the sexual encounter. For example, a number of defense verdicts have issued in instances of adult females abusing adolescent males, often as a result of perceived consent or a lack of harm.[20] Similarly, a 2018 Florida jury found in favor of a defendant hospital in a claim brought by the family of a mentally incompetent patient when a police investigation determined that the sexual encounter giving rise to the abuse claim had been consensual.[21]

In cases involving claims of sexual abuse, the plaintiffs’ credibility is very important in either establishing the underlying claims or supporting the defenses thereto. Cases in which plaintiffs present with a history of psychiatric issues, particularly conditions relevant to the plaintiff’s ability to conduct healthy interpersonal relationships, have resulted in defense verdicts.[22] In another case, the jury did not believe the plaintiffs’ contentions that a teacher’s abusive touching happened in the middle of class for anyone to see – the plaintiffs were not perceived as credible given that no other student could confirm that the alleged incidents took place.[23]

Responding to the Looming Number of Sex Abuse Claims

While the exact number of increased claims as a result of expanding statutes of limitation cannot be predicted, it is without question that jurisdictions across the country will see a significant increase in sexual abuse claims, including childhood claims in the next year. Moreover, newly enacted “look-back” periods will certainly result in an increase in such claims even beyond the next year.

In this new flood of litigation, not only will defendants face increased scrutiny in the midst of the #metoo movement, but the extended dormancy of these claims (up to 50 years and beyond in some cases) means that relevant documentary evidence supporting their positions may be difficult to find, and, in certain cases, the alleged perpetrators may no longer be alive to present their defenses at all.