Six months after being signed into New York state law, the one-year look-back period provision of the Child Victims Act finally went into effect on August 14, 2019. The new legislation extends the New York statute of limitations for child sex abuse survivors to file claims against private or public institutions responsible for past abuse and repeals the “notice of claim” requirement for filing a claim against a public entity.
Pressure has been building for a law like the Child Victims Act for years now, with high profile sex abuse cases involving public schools, the Boy Scouts of America, and the Catholic Church receiving widespread media coverage. Hundreds of claims were filed on the first day that the new look-back period went into effect, with more claims being added virtually every day.
It can be difficult to understand the details of the New York Child Victims Act and what it really does for victims of child sex abuse. The goal of this article is to spell out in plain English what the Child Victims Act is, what it changes, and how survivors of childhood sex abuse can now take action to seek justice from the institutions responsible.
What Does the Child Victims Act Do?
The most noteworthy effects of the Child Victims Act involve changes to the New York statute of limitations, the new one-year look-back period, and the repeal of the notice of claim requirement.
The New York Statute of Limitations Under the Child Victims Act
Generally speaking, statutes of limitations are state laws that limit the time period in which an individual can file a claim against a person or organization. The exact time windows of statutes of limitations vary depending on the severity of the offense and type of lawsuits pursued. For instance, the statute of limitations for misdemeanors is more restrictive than for manslaughter, regardless of jurisdiction.
The Child Victims Act has extended the New York statute of limitations for victims of child sex abuse to 55 years old for civil cases and 28 years old for criminal cases. Previously, the statute of limitations for felony offenses dealing with child sex abuse in the state of New York ended when the victim turned 23 years old, while survivors of child sex abuse were only able to bring civil lawsuits against their abusers within one to five years of the incident from the age of 18 years old onward.
For misdemeanor cases involving child sex abuse, the statute of limitations has been extended by five years, so survivors can now press charges until they are 25 years old.
This expanded window of time in which child sex abuse victims can legally file civil claims against their abusers recognizes the fact that many survivors of child sex abuse take years to process the pain and trauma resulting from the incident. Going forward, it will now be possible to file civil charges until the age of 55, regardless of the age at which the abuse occurred.
The One-Year Look-Back Period (August 14, 2019 to August 14, 2020)
While the expanded statute of limitations is good news for victims of child sex abuse who have not yet exceeded the previous statute of limitations, those who have will need to rely on the new one-year look-back period that became effective on August 14, 2019. Until August 14, 2020, survivors of child sex abuse who previously exceeded the state statute of limitations can file a civil claim for money damages, no matter how long ago the abuse occurred.
Repeal of the Notice of Claim Requirement
Before the Child Victims Act went into law, an individual who wished to file a personal injury lawsuit against a government entity, such as a public school, were first required to file a notice of claim within 90 days of the incident. This notice of claim involved documenting the time and place of the incident along with details of the damage suffered as a result of the incident and ostensibly ensured that the claim could be investigated while evidence was most likely to still exist.
However, the Child Victims Act completely exempts victims of child sex abuse from the notice of claim requirement, allowing an individual to directly file a personal injury lawsuit until the statute of limitations expires at the age of 55. Institutions can be held responsible simply for negligence, which means failing to act with a reasonable level of care to prevent the occurrence of child sex abuse.
Civil vs. Criminal Law
As mentioned above, the Child Victims Act extends the statute of limitations for both civil and criminal cases. Before moving forward with discussion of the Child Victims Act, it is important to understand the basics of the distinction between civil law and criminal law and how each kind of law operates.
Civil law deals with cases in which an individual, called the plaintiff, brings charges against an individual or organization, referred to as the defendant. If the plaintiff can prove “by a preponderance of the evidence” to the judge that the allegations against the defendant are true, the plaintiff may receive monetary damages from the defendant.
Criminal law, meanwhile, deals with punishing behavior that is criminal by definition, such as actions that inflict harm upon another person or their property. As such, the state directly brings charges against the defendant. Unlike in civil cases, the victim does not file a claim against the defendant in criminal law. The prosecutor of the case, representing the government, attempts to prove “beyond a reasonable doubt” that the defendant is guilty. If the jury returns a unanimous guilty verdict, the defendant will be punished according to the severity of the offense, which can include fines and/or jail time.
How Do I File a Case Under the Child Victims Act?
Let’s take a look at the different ways that victims of child sex abuse can proceed under the Child Victims Act.
Determine Your Status Under the Child Victims Act
If you are a victim of child sex abuse, consider when the incident took place and how you fit in regard to the Child Victims Act. As mentioned before, individuals can now file civil claims against alleged abusers or institutions until the age of 55. In addition, survivors of child sex abuse who previously exceeded the New York statute of limitations now have until August 14, 2020 to file a civil case.
Decide How to Proceed
If you decide to pursue a civil lawsuit, the first thing you will need to do is find a civil law attorney. It’s important to find an attorney you feel comfortable speaking with and who you trust to represent you in court. Take your time and interview several attorneys if necessary, as choosing the right attorney is essential for making the best out of what could be a long and emotionally painful process.
Individuals 28 years old and younger can also consider filing a police report in an attempt to initiate a criminal case against the alleged abuser. As mentioned earlier, criminal cases are pursued by prosecutors working for the state, who control the criminal law process along with judges and eventually a grand jury. However, since criminal cases largely proceed outside the control of the plaintiff, this article deals primarily with civil lawsuits.
The Defendant Answers
Once you and your attorney begin the civil case by submitting documents containing the factual allegations containing the complaint, the defendant will have a specified amount of time to respond to the summons with a defense. At this stage, the defendant may file an answer objecting to specific claims made by the plaintiff or file a motion to dismiss the case. A motion can then be made to request a court order, with the court examining the material facts of the case and deciding how to proceed.
Discovery and the Trial
The discovery process allows both parties to learn about the case that will be made by the other party prior to appearance in court. This includes notice of any relevant documents, testimony, or evidence that will be produced to support one side of the case.
Finally, the trial is where the jury convenes to hear both sides of the case and return a verdict. A jury that cannot come to a definitive conclusion in a certain period of time is called a “hung jury” and the case will have to be retried at a later date. If the jury reaches a verdict, however, the judge will then enter the court’s judgment.
Opportunity for Appeal
If one party is not satisfied with the outcome of the case, it is possible to file an appeal. However, this does not mean that a new trial will be held where new evidence can be presented. Instead, an appellate court will look for any cases of legal error that may have occurred during the trial, such as excluding appropriate evidence or giving improper jury instructions.
After examining the case, the appellate court can then either affirm, reverse, or reverse and remand the trial court’s judgment, the latter option requiring the case be sent back to lower courts for further proceedings consistent with the appellate decision.
Alternative Dispute Resolution
It is also possible to settle a case outside of a trial. Mediation and arbitration are two kinds of alternative dispute resolution, although neither are particularly likely in the event of child sex abuse. However, negotiation can occur directly between the plaintiff and the defendant and allow both parties to maintain confidentiality if that is what they both desire.
Settling out of court through alternative dispute resolution may be a perfectly reasonable decision for some victims of child sex abuse, as the prospect of a long and stressful legal process may prove emotionally overwhelming. The decision is completely up to each person.
The Child Victims Act is a landmark piece of legislation that makes it possible for victims of child sex abuse to bring civil charges against their abusers long after the previous statute of limitations expired. In addition, its repeal of the notice of claim requirement makes it far easier for victims to bring charges against government institutions that are responsible for child sex abuse either through active participation or negligence.
We hope this article has made some of the major details of the Child Victims Act more clear and can provide those who have suffered from child sex abuse the basic knowledge to understand what they can do under the new law to seek justice for the wrongs committed against them.