Like many states in recent years, New York has enacted legislation that revived actions brought by victims of sexual abuse. The Child Victims Act (CVA) provided a lookback window to revive otherwise time-barred lawsuits. It applies to claims for damages “suffered as a result of conduct that would constitute a ‘sexual offense,’” as defined in Penal Law § 130, committed against a child under the age of 18. In Doe v. Houk,1 the plaintiff brought this type of action alleging that, starting when he was a 16-year-old high school student in 1980, the defendant, an adult female teacher, engaged him in a sexual relationship.
The defendant moved for summary judgment on the grounds that the cited provisions of the Penal Law, circa 1980, did not apply to a female perpetrator. The lower court agreed with her argument to the extent that the CVA revived only claims involving conduct that constituted a sexual offense as defined by the Penal Law in existence at the time, but it found that sexual abuse in the third degree as defined by former Penal Law § 130.55 could serve as the predicate sexual offense for the claim against her. On appeal, the Appellate Division, Fourth Department affirmed.
In 1980, Penal Law § 130.55 provided, that “[a] person is guilty of sexual abuse in the third degree when he subjects another person to sexual contact without the latter’s consent.” The defendant argued that the statute’s use of “he” exempted females from the criminal prohibition until a 2001 amendment changed the language to “he or she.” Consequently, she argued, the statute could not serve as a predicate to revive the plaintiff’s CVA claim. The Fourth Department rejected this argument, finding that Penal Law § 130.55 applied to any “person” and “the term ‘he’ in the statute was the ‘universal he’ in common usage at the time that referred generally to males, females, and fictitious persons such as corporations.” The court juxtaposed the statute with other sections of the Penal Law that included gender-specific language, such as the rape statute, which specifically referred to a “male” offender and a “female” victim at the time.
Lastly, in a noteworthy passage, the court announced that, because the arguments were tailored and it found that the 1980 statute was sufficient for revival of the plaintiff’s claims, it was not deciding “whether the conduct bringing a tort claim within the scope of the CVA must constitute a specified offense under the current Penal Law or under the applicable criminal law as it existed at the time of the conduct.” Thereby, the Fourth Department left the door open to the possibility that a time-barred claim can be revived based on a violation of the current Penal Law even if the conduct was not a crime at the time it occurred.
Barclay Damon will continue to monitor the impact of the CVA and the related provisions enacted in the Adult Survivors Act (ASA) on litigation throughout 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 Matthew Larkin, Torts & Products Liability Defense Practice Area co-chair, at mlarkin@barclaydamon.com, or another member of the firm’s Torts & Products Liability Defense Practice Area.
1__ A.D.3d __ (4th Dep’t, Feb. 2, 2024) (CA 22-01724).