Yesterday I blogged about whether a “governmental immunity ” or “sovereign immunity” defense would bar a claim by child sex abuse victims against the State University of New York (“SUNY”) if something like what happened at Penn State (State university football coach sexually abuses children on campus) happened in New York at SUNY Geneseo, or SUNY Albany, or SUNY Cortland, etc. I concluded that those defenses generally would not be applicable in New York. But unfortunately, unlike in Pennsylvania, another defense would likely prevail in New York: The statute of limitations.
Pennsylvania, unlike New York, has extended the statute of limitations for child sexual abuse victims until they reach age 30. From news reports, it seems that all the Penn State child sexual abuse victims are still under 30 years old. So they can, and probably will, be able to sue Penn State for compensation, though on the very same facts, they would not be able to do so in New York
In New York, there is no specific statute of limitations for civil cases based on child sexual abuse claims. The child victim must rely instead on traditional statutes of limitations for assault (by the perpetrator) and negligence (by the employer of the perpetrator or owner of the building where it happened). In New York, the statute of limitations for assault is one year, and for negligence it is three years.
But a child victim’s statute of limitations is “tolled” (doesn’t start to run) until he or she is 18 years old. That means that the statute of limitations against the perpetrator of the sexual abuse generally expires on the victim’s 19th birthday, and against the employer/property owner, on the victim’s 21st birthday.
But there are other — and longer — statutes of limitations that might apply. Under CPLR 213-b(2), if the sexual abuser is convicted of a criminal offense, the victim gets 10 years to sue him starting from the date of the crime. But this statute of limitations applies only to a lawsuit against the rapist/abuser who was convicted of the crime, not a lawsuit against his employer or others who may have negligently allowed the rape/abuse to occur. Thus, in a Penn State-like situation, the sexually abused child could not use this statute of limitations to extend his time to sue the State University.
What about CPLR 215(8)? That Statute gives the child victim of sexual assault in New York an additional five-year window to sue the perpetrator from the date the criminal action against the perpetrator terminates. But can a child sex abuse victim use this statute to extend his statute of limitations for suing not only the perpetrator, but also the negligent employer or premises owner or other culpable people who are not defendants in the criminal case? The courts in New York are divided on this issue, so this is far from a sure bet.
The bottom line is that most victims of child abuse in New York would probably be barred from suing SUNY (i.e., State Universities like Penn State) unless they did so before they turned 21. This is extremely unfair, because, as any psychologist will tell you, and as experience confirms, most victims of childhood sexual assault don’t come to terms with what happened to them, or consider going to the police about it or making a claim for compensation, until they are closer to thirty years old. From what I have read, the victims of child sexual abuse at Penn State are now all over 21 years old, but younger than 30. Thus, their claims would likely be barred in New York, but not in Pennsylvania.
Why doesn’t New York have a more fair law, like Pennsylvania’s, that protects the rights of victims of child sexual abuse? Glad you asked. In 2009, the New York State Legislature considered a law that would have liberalized the statutes of limitations for child sex abuse cases. The “Child Victims Act” would have, among other things, extended the statute of limitations for filing civil suits for child sexual abuse to 10 years after a victim turns 18 (i.e., to age 28). But a very strong Catholic Church lobby defeated the bill.
There are some “loopholes” New York plaintiffs’ lawyers might try to latch onto to avoid New York’s harsh statute of limitations for child sexual abuse claims, such as “equitable estoppel”. But those are very difficult arguments to make. For example, with an “equitable estoppel” claim, the once-child, now adult, victim must show that a defendant such as Penn State did more than merely cover up a crime; he must show that the defendant engaged in fraud, deception or misrepresentations that induced him to refrain from filing a timely action. This is almost never the case — rather, usually the victim’s own shame induced him to refrain from filing a timely action.
Maybe the Penn State drama will induce New York law makers to again attempt reforming New York’s antiquated child sexual abuse law. Let’s hope so.
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Michael G. Bersani, Esq.
Central NY Personal Injury Lawyer
Michaels Bersani Kalabanka