Introduction

On May 24th, 2022, the New York State Adult Survivors Act (known colloquially as the “ASA”) was signed into law by Governor Kathy Hochul.[i] It became effective on November 24, 2022, and will apply for one year, through November 23, 2023. The law creates a one-year window for certain survivors of sexual assault to seek civil damages against their perpetrators and the institutions that may have protected or concealed those perpetrators. Specifically, the law aims to protect survivors of adult sexual assault, that is, individuals who experienced sexual victimization after their 18^th birthday. The ASA allows sexual assault survivors in New York State to seek civil justice even when their victimization occurred during adulthood, and even when the victim did not previously seek legal recourse.

This is a significant development because prior to the ASA’s enactment, many survivors were “time-barred” from filing claims. This occurs in both civil and criminal cases when the applicable “Statute of Limitations” has run. Statutes of Limitations exist to limit the time that can pass between when a cause of action arises (such as a sexual assault or a case of sexual abuse) and when the victim files a lawsuit against a perpetrator, a group, or an institution. The concept of time-barring is still honored in most areas of law and it is an important concept; the idea is that individuals and institutions should not have to live under the threat of litigation for an unlimited amount of time. If an individual has a legal claim, he or she is responsible for bringing the claim within a reasonable time so that the target of the claim can counter with an appropriate defense. As time passes, memories fade, evidence erodes, and claims become difficult to defend against as well as to prove.

However, when it comes to instances of sexual victimization, the ASA recognizes that the nature of the offense (in this case, a civil wrong called a “tort”) is fundamentally different from other forms of harm that civil law can address. It is now understood that it may take years for survivors to process sexual trauma due to victimization. The deep emotional and psychological effects of sexual abuse prevent many survivors from reporting the abuse to authorities (in the criminal context) and may also prevent them from seeking justice in civil courts as well. Additionally, survivors are often sexually victimized within an institution such as a school or college, a public agency, a large company, or a religious organization. Many of these institutions are iconic, revered, powerful and well-funded. Leaders within these institutions may discourage reporting or react improperly when a victim comes forward. Intimidation of survivors, pressure to keep complaints internal, or simply dismissals of complaints have unfortunately been common experiences for survivors. For all these reasons, the ASA was enacted to create a “look-back” opportunity for survivors of adult sexual abuse to file suit in New York State Courts during a new time window.

The ASA was modeled after the 2019 Child Victims Act (CVA).[ii] Similar to the ASA, the CVA recognized that the then-existing statutes of limitations in place for certain types of child sexual victimization and abuse were insufficient. The CVA also created a “look-back” window for survivors beginning in 2019. Additionally, survivors who were less than 18 years of age when they experienced sexual victimization may be able to file civil suits under the CVA far longer than was previously allowed.[iii]

Requirements for a Claim to Proceed

To file a claim under the ASA, the offense must have occurred when the survivor was 18 years or more. Further, the offense must have constituted a sexual offense as defined under New York penal law section 130, or the crime of incest under penal law section 255.  As a result, the elemental requirements of these sections are a key component to any ASA claim or defense.

Penal law section 130 details sexual offenses in New York. [iv] The section is broad and details offenses ranging from Sexual Abuse in the Third Degree (the lowest level offense and a Class B misdemeanor carrying a maximum sentence of 90 days in jail) to Predatory Sexual Assault (the highest-level offense and a Class A-2 felony caring a maximum prison sentence of 25 years to life).

Predatory Sexual Assault occurs when a perpetrator commits (i) rape in the first degree, (ii) criminal sexual act in the first degree, (iii) aggravated sexual abuse in the first degree, or (iv) a course of sexual conduct against a child in the first degree, and also causes (a) serious physical injury to the victim; or (b) uses or threatens the use of a dangerous instrument while in the course of the crime or during the flight from it.[v]

Rape is defined under Penal Law sections 130.35 and 130.25. Rape varies in degree according to the level and type of “lack of consent,” as defined Section 130.05.  A person commits Rape in the First Degree when they engage in sexual intercourse[vi] (i) by using forcible compulsion,[vii] (ii) with a victim who is either mentally or physically helpless;[viii] or (iii) with a victim who is otherwise unable to consent.

Criminal Sexual Act is defined under penal law sections 130.50, 130.45, and 130.40.  This crime involves the factors described in the paragraph above but contemplates oral or anal sexual conduct.  “Sexual conduct” includes any oral or anal contact or contact between the penis and the anus.  Oral Sexual Conduct includes any contact between the mouth and penis, vagina, or anus. Similar to Rape, the crime varies in degree according to the level and type of “lack of consent.”[ix]

Aggravated Sexual Abuse is defined under sections 130.66, 130.67, and 130.70. This crime involves the insertion of a foreign object into the vagina, urethra, penis, or rectum of the victim by either forcible compulsion, or when the victim is either physically or mentally incapacitated or is otherwise unable to consent.

Forcible Touching is defined in section 130.52 as an intentional touching, for no legitimate purpose, forcibly touching the intimate parts of another person for the purpose of sexual gratification or to abuse or degrade the other person.

Sexual Abuse in the Third Degree (section 130.55) is committed when the actor subjects the victim to sexual contact without such person’s consent.  In the penal law, sexual contact and lack of consent have their own meanings, defined by statute.  “Sexual contact” is defined as any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party.  It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing, as well as the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed.

“Lack of consent,” as mentioned earlier, is defined under section 130.05 and involves as any circumstance, in addition to forcible compulsion or incapacity to consent, in which the victim does not expressly or impliedly acquiesce to the actor’s conduct.  Lack of consent also results from incapacity to consent. Under the law, a person is deemed incapable of consent when they are (a) less than 17 years old, (b) mentally disabled, (c) mentally incapacitated, or (d) physically helpless.

Looking Ahead

Lack of consent may also result from the nature of a relationship. This component will likely be the source of many lawsuits.  Examples include the relationship between prisoner and guard or doctor and patient. Lack of consent will also apply between a treatment provider and a person confined as a patient in a residential facility run by the Office of Mental Health, the Office of People with Developmental Disabilities, and the Office of Alcohol and Substance Abuse. Any sexual contact under these circumstances is deemed non-consensual and may result in a claim.  Many cases of this nature are prosecuted criminally, and any admission of guilt, (including entries into plea agreements) could be used against the defendant in a later civil proceeding.

It’s important to note again that the ASA allows not only survivors to file suit against perpetrators, but also against institutions, employers and others who may have concealed the victimization, minimized it, otherwise reacted inappropriately, or protected perpetrators. This will be a critical challenge for employees trying to defend a claim under the ASA, as the actions of the perpetrator will be examined right along with the actions (or inactions) of the institution involved.

Under the ASA there are two types of torts that could be alleged: one is an intentional tort which would be directed against the perpetrator of the crime. The other would be based in a theory negligence or willful misconduct. In such a case, the suit would be aimed at the perpetrator’s employer or some other entity or institution with a supervisory or similar relationship to the perpetrator. Actionable wrongs in such a case would include responding inappropriately, allowing the abuse to take place due to inaction, or even responding too slowly or incompletely. Claims can arise for many reasons including negligent supervision, hiring, training and /or retention, security, and other forms of common law negligence.

Takeaways

The very nature of the ASA will create challenges simply because some alleged offenses will be twenty years or more in the past.  This will create difficulties in locating witnesses or obtaining documentation (which may not have been stored or preserved properly). These time-related matters will pose challenges to both sides. Although the burden in civil court is substantially lower than in criminal court, each claim must be weighed with a critical eye toward the facts.  As a part of evaluating each case, it will be imperative to understand the elements and definitions of each of the above-described criminal offenses to determine the strength of a claim as well as any possible defenses. Additionally, both sides will need to retain experts to opine on the psychological effects of the abuse, making litigation costly.

To be fully prepared, employers should have strict sexual harassment and sexual abuse policies in place. Protocols, meticulously designed and followed, will assist in consistently, competently, and compassionately addressing complaints. All policies should be regularly reviewed (with outside expertise when appropriate) and updated. Employers must take immediate action on any new complaints made and apply the protocols with multiple levels of review. It is important to study past claims of sexual harassment or abuse as well, regardless of how they were handled or how distant they arose.  Finally, institutions must notify their insurance carrier as soon as they learn of a claim or a potential claim.

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Sources

[i] https://www.governor.ny.gov/news/governor-hochul-signs-adult-survivors-act

[ii] https://www.dfs.ny.gov/industry_guidance/policyholder_and_victim_guidance

[iii] https://www.nycbar.org/get-legal-help/article/personal-injury-and-accidents/new-york-child-victims-act/#:~:text=What%20is%20the%20Child%20Victims%20Act%3F%20The%20Child,of%20child%20sexual%20abuse%20to%20press%20criminal%20charges.

[iv] https://nycourts.gov/judges/cji/2-PenalLaw/130/art130hp.shtml

[v] Id.

[vi] “Sexual intercourse” has its ordinary meaning and occurs upon any penetration, however slight.

[vii] “Forcible compulsion” means to compel by either: a. use of physical force; or b. a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped.

[viii] Physically helpless” means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

[ix] https://www.nysenate.gov/legislation/laws/PEN/130.05