New York law gives adult sex abuse survivors more time to sue. But does it go far enough?
E. Jean Carroll sued former President Donald Trump under a state law that gives sexual abuse survivors a window of time to sue, regardless of when the alleged abuse happened.
In a civil trial, a New York jury on Tuesday found that former President Donald Trump was liable for sexually abusing writer E. Jean Carroll in the mid-1990s and defaming her after she went public about the incident in 2019, though the jury didn’t find Trump liable for her alleged rape. It awarded Carroll a total of $5 million in damages for her battery and defamation claims.
On his social media platform, Truth Social, the former president called the verdict a “disgrace” and “A CONTINUATION OF THE GREATEST WITCH HUNT OF ALL TIME!”
Carroll brought the suit against Trump under a New York state law passed last year called the Adult Survivors Act (ASA), which creates a one-year window for survivors of sexual assault that occurred when they were over the age of 18 to sue their alleged abusers, regardless of when the abuse occurred.
According to RAINN (Rape, Abuse & Incest National Network), every 68 seconds an American is sexually assaulted, and 1 out of every 6 women in the U.S. has been the victim of an attempted or completed rape in her lifetime.
“It's reigniting the opportunity to file lawsuits in cases where the people who will be filing assumed correctly before this that the time had run out,” Wendy Murphy, a former federal sex crime prosecutor and professor of sexual violence law at New England Law in Boston, told Yahoo News in a December interview.
The legislation took effect on Nov. 24, 2022, six months after New York Gov. Kathy Hochul signed it into law. The window to file a lawsuit closes in about six months, on Nov. 23, 2023.
“The fight against sexual assault requires us to recognize the impact of trauma within our justice system,” Hochul said at the signing of the legislation last May. “While our work is not done, eradicating sexual assault begins with our ability to bring the perpetrators of these heinous acts to justice, and this legislation is a historic step forward.”
In addition to Trump, Bill Cosby is among the high-profile names involved in civil lawsuits filed under New York’s ASA.
A wide range of businesses and institutions, such as universities and prisons, could also be held financially liable in civil cases if they are found to have enabled the conduct by lack of action or encouraging an environment for the assaults to occur.
The New York law is modeled after the state’s Child Victims Act, enacted in August 2019, which similarly created a one-year window for victims of child sexual abuse who were previously outside the statute of limitations for suing. The window was extended through August 2021, and over 10,000 cases were filed in New York state under the law.
According to the New York State Office of Court Administration, so far there have been about 130 civil cases filed under the ASA in the state. A deluge of individual civil lawsuits against state prisons are expected to come as well.
Murphy further explained aspects of the law and what the potential implications are going forward. (Some responses have been lightly edited for length or clarity.)
Why is the one-year window so significant for adult sexual survivors who passed a deadline?
“It's so common for victims of sexual trauma, in particular, not to file within that very short statutory window of typically three years,” said Murphy. “There have been so many cases over the past decades that have been filed many, many years later that I think legislatures around the country understood the importance of giving people an opportunity that they deserve.
“Sometimes so much trauma has happened that they're disabled from filing. Sometimes it's a lack of appreciation for the kind of suffering they endured. And sometimes it's an inability to connect the dots. You might suffer as an adult and you're going through trouble, but then you get therapy and you realize, no, actually the underlying trauma was caused by that sexual assault I suffered in high school or college, or in my job some years earlier. So it's the putting together of the causal relationship that really does start the clock, because there's a growing appreciation for that reality.
“Allowing this one-year look back is really a way of saying we understand the unique suffering that victims endure and the unique nature of these cases, and we're just trying to provide an opportunity for everybody to have their day in court.”
For further context, what is the statute of limitations for cases like these in general?
“In general, the way it works in most states, and this is not specific to New York, is there is a fixed period within which you must file a tort claim. We're not talking about criminal cases, we're talking about lawsuits for money. In many jurisdictions that period is three years. Some it's two years, some it might be four.
“There have always been exceptions to that three-year limitation period. Those exceptions allowed victims in cases like this to file sometimes many years later if they couldn't have known about the causal relationship between the abuse they suffered and the harm they're enduring. That's called the discovery rule. So there would be a consideration given if you didn't appreciate that you had a lawsuit that you could file because you didn't understand the injuries you were suffering were caused by the abuse. So that might give you a delay of who knows how many years, 10, 20, 30, 40 years, if you could show the court that you could not have filed within the three-year window.”
In 2019, New York extended the statute of limitations to 20 years for adults filing civil lawsuits for a select number of sex crimes, but that legislation was not retroactive and affected only new cases.
What is important to note about the type of lawsuits filed under the Adult Survivors Act?
“It's only civil, which means it's not criminal. When California did this many years ago, they created a look back for both criminal and civil, and the U.S. Supreme Court said: You can't do it for criminal, that's illegal and unconstitutional, but you can do it for civil, and you can file a lawsuit. Generally speaking, you're going to have a lawyer do that for you, but it's not required. There are people who file pro se lawsuits because they can't find a law firm willing to take their case, or the law firm wants money, or whatever the reason.
“I don't like the idea of only focusing on the civil system, because all you're really doing is indulging this idea that the only people that are going to be held accountable are those who can pay to settle the case. It does indulge this two-tiered idea that you can rape someone, and if you're rich, you can just write a check.
“Especially in terms of institutions, you can hit them in the pocket, that's where they feel the pinch. The problem is you're often talking about insurance companies, they have endless amounts of resources, so they're just going to factor this risk into the cost of doing business, and they'll be gone. One year from now they won't even worry about it.”
What are some concerns surrounding New York’s legislation?
“I don't have any faith that this legislation is going to make a bit of difference in terms of the behavior. We sometimes get overinvested and we overcelebrate without really talking about why all this stuff happened to begin with. So rather than having a few lawsuits, the thing we really have to change is the rules that allow that and create those kinds of incentives, so that every time schools and employers and so forth get a report of sexual assault, their first reaction is: They’re fired, we are going to make a big stink about this, we're going to announce that we have a zero-tolerance policy.
“So, to me, this one-year look-back lawsuit opportunity is a little bit dangerous in the sense that it's going to distract us from putting energy and resources into lobbying for the kinds of reforms that would actually protect women and sexual assault survivors moving forward. You don't just want to reward women when they do suffer. You want to stop the rapists from committing offenses in the first place.”