Last year, we reported that New York State lawmakers were considering several new pieces of legislation that would greatly expand the rights of victims of sexual abuse to bring civil claims against their perpetrators. On February 14, 2019, Governor Cuomo signed the Child Victims Act, which allows victims who were sexually assaulted as minors to bring civil actions against their perpetrators at any time before the victim turns 55 years old. The new law, which includes a number of other rights, constitutes a sweeping change for victims of child sexual abuse and is likely to bring about a wave of new claims against perpetrators and the institutions, such as schools and churches, where the abuse took place.
The Child Victims Act includes a number of changes to New York's penal and civil laws, including the following:
- The statute of limitations for criminal prosecution of sexual offenses committed against a child under the age of 18 will not begin until the victim turns 23 years old. Once the victim reaches the age of 23, felonies must be brought within five years and misdemeanors within two years.
- The statute of limitations for civil actions for conduct involving sexual offenses against a child under the age of 18 can be brought at any time until the victim turns 55 years old. Formerly, victims of certain sexual offenses had five years from the date of abuse to commence an action.
- There will be a one-year "window" after the effective date of the new law to allow any victim whose claim is otherwise time-barred to commence a civil action. The one-year window will begin on August 14, 2019.
- The law removes the 90-day notice-of-claim requirement for bringing claims against municipalities and school districts for claims involving sexual abuse of a child.
The new law further provides that any claims that were previously dismissed as time-barred prior to the effective date of the new law are "hereby revived," and the victims can now proceed with their claims notwithstanding their prior dismissal (and these claims are given a trial preference as well). See CPLR 214-g. Judges are also required to undergo training with respect to crimes involving sexual abuse and the sexual abuse of minors.
The new law applies to any claim "to recover damages for physical, psychological, or other injury or condition" suffered as a result of conduct that would constitute a "sexual offense" as defined in Penal Law § 130 (sexual intercourse, oral sexual conduct, anal sexual conduct, or sexual contact) with a child less than 18 years old, "incest" as defined in Penal Law §§ 255.25-27 with a child less than 18 years old, and use of a child in a sexual performance as defined in Penal Law § 263.05 against a child less than 18 years old.
This new law is certain to increase the number of claims filed against perpetrators who are alleged to have committed such heinous acts. Equally significant, the new law is likely to expose employers, churches, schools, and municipalities to claims alleging negligence with respect to the hiring, supervision, and retention of alleged perpetrators. A number of evidentiary issues are likely to be raised with respect to these new claims related to missing or deceased witnesses, destroyed documentary evidence, and discovery concerning acts that took place decades ago.
There are a number of insurance coverage issues that are likely to be raised as a result of this new legislation as well. New York State courts have long held that the injuries alleged to have been caused by sexual abuse of minors is "inherent in the nature of the acts alleged" so that the injuries were, as a matter of law, intentionally caused by the perpetrator, precluding coverage under most liability insurance policies. See generally Allstate Ins. Co. v. Mugavero, 79 N.Y.2d 153 (1992). However, claims against employers and institutions raise different coverage concerns, including when coverage is triggered, the scope of sexual abuse exclusions, and the number of occurrences at issue where there are multiple victims or the alleged abuse takes place over extended periods of time.
Barclay Damon will continue to monitor the impact of this law on new claims in New York State. Our attorneys have significant experience with respect to the liability, damage, and insurance coverage issues pertaining to these claims.
If you have any questions regarding the content of this alert, please contact Mark T. Whitford Jr., partner, at mwhitford@barclaydamon.com, or another member of the firm's Torts & Product Liability Defense or Insurance Coverage & Regulation Practice Areas.