Like statutes of limitations reform in many states, New York’s enactment of the Child Victims Act was an extraordinary achievement that unleashed long-denied demands for accountability. Since the new law allowed previously lapsed claims to be filed in court, the next issue for victims and survivors was how to access justice. Now and then, the answer to this question will differ for each person, but several basic considerations exist.
As I have long maintained, and many others have echoed, the CVA merely allowed victims and survivors of childhood sexual abuse to access the courts. It did not mean the plaintiff automatically won. SOL reform is not a so-called ‘giveaway’ to lawyers and survivors. It did not shift the burden of proof or lower the standard of care. It did not put any wrongdoer at any disadvantage. Ignore all the rhetoric by insurers and institutions bemoaning the passage of past, present, and future SOL reform with dire warnings of bankruptcy and financial ruin. The same New York civil rules of procedure still apply (currently 700 individual sections and rules divided into 70 articles). The burden remains on the plaintiff to prove their case by a “fair preponderance of the evidence.”
Generally speaking, in child sex abuse cases against institutions, survivors must show that the institution had actual prior knowledge of the perpetrator’s dangerousness or that the sexual abuse was reasonably foreseeable. In other words, institutional defendants must actually know, or should have known, about the perpetrator’s propensity for sexual assault. Without these baseline facts, a survivor’s claims will likely be dismissed, no matter how compelling, sympathetic, or awful.
Institutions are not automatically liable for the actions of their employees. In fact, under longstanding New York law, institutions are not liable for crimes committed by their employees since those crimes are not considered part of the employee’s duties. Many states have similar limitations. What this means is that negligence is the primary basis for holding institutions liable in civil child sex abuse cases.
Then, of course, survivors must also prove that the perpetrator sexually assaulted them. As a plus, it is often challenging to deny sexual abuse if the institution had notice that the perpetrator had a known propensity to sexually offend. However, each case is different based on its unique facts and circumstances. There is no way to generalize about child sex abuse cases, which are highly individualized by the facts and the law in New York and other jurisdictions.
In summary, while statutes of limitation reform provides much-needed access to the courts, it does not change anything about the legal system’s longstanding response, or lack thereof, in actually providing justice for child sex abuse victims and survivors. For some survivors, their day in court is enough. For many others, compensation is essential to their healing and recovery. While anyone can bring a lawsuit against anybody (for almost anything), prevailing on that lawsuit through a jury trial to a judgment is becoming rarer and rarer in our civil justice system. Negotiation, alternative dispute resolution, mediation, and out-of-court settlements are all fundamental parts of the litigation process. Often, having one’s “day in court” means meeting with a mediator, judge, or magistrate to resolve the case without a trial. Bankruptcy adds a whole new layer of complexity and delay. There is no one path to justice and no singular template for resolving child sex abuse cases.
Nationwide Resources
Pro Se Representation and Low-Income Legal Services
Like many other states, litigants are allowed to represent themselves in New York. Still, if the above basic, cursory overview is any indication, it is not an easy or straightforward undertaking for non-lawyers. One excellent resource for survivors considering pro se representation is LawHelpNY.org a comprehensive source of legal referral information. It is sponsored by many bar associations and pro bono legal offices across New York State. It is an excellent place to begin if you are considering representing yourself or looking for pro bono or low-cost legal representation. Although there are forms and guides on a variety of legal subjects, information about childhood sexual abuse and civil litigation is not available. The best way to utilize this site is to search for programs by location, since general civil representation is not a search option.
The New York State Office of Court Administration maintains a CourtHelp website for individuals who want to represent themselves in the New York court system. There is also a New York-specific site sponsored by the American Bar Association that offers routine assistance on civil legal matters called Free Legal Answers.
For an in-depth primer on the civil litigation process in New York, albeit for attorneys, Professor Gerald Lebovits has written a series of articles on drafting New York Civil Litigation Documents beginning with this overview.
Unlike Georgia, which created the Wilbanks Child Endangerment and Sexual Exploitation Clinic (CEASE) as part of its 2015 statute of limitations reform, New York did not have the foresight (or quite frankly the ability given the two decade struggle to simply pass the CVA) to envision a similar resource center for New York child sex abuse victims and survivors. Under the CVA, the Chief Administrator of the Courts must promulgate rules for the timely adjudication of revived actions brought under the law. Hopefully, this will include measures to facilitate or streamline lawsuits by pro se litigants under the CVA.
Vera House in Syracuse has a legal advocacy program that links victims of childhood sexual abuse to attorneys in the Syracuse metropolitan area.
In Tompkins County, The Advocacy Center works to connect survivors of child sex abuse with legal assistance as well as support groups, mental health providers, and other resources. The Advocacy Center’s hotline can be reached 24 hours a day at 607-277-5000.
Lawyer Referral Services
The various legal referral services throughout New York are an excellent source of attorneys. Many county bar associations, the New York State Bar Association, and the New York City Bar Association have legal referral services. On a national level, the National Crime Victim Bar Association maintains an attorney referral service. The LRSConnect website also has links to lawyer referral services throughout New York State.
Women’sLaw.org provides legal information to support women in domestic violence situations. Legal Aid Societies provide free or low-cost legal services to those with limited income and resources in the United States. For more information, please visit LawHelp.org to search for services in your state.
Private Attorneys and Law Firms
There is no lack of attorneys in New York or nationwide. One estimate puts the number of attorneys at over 177,000. Not all these attorneys are practicing; most have never set foot in a courtroom. Some of them represent defendants in criminal matters (an online search for a “child sex abuse attorney” frequently turns up criminal defense attorneys). Many focus on personal injury, medical malpractice, or general legal issues from trusts and estates to family law (attorneys are not permitted to ‘specialize’ in New York). An endless number of websites maintain rosters of attorneys, including FindLaw, Avvo, Justia, SuperLawyers, and Martindale-Hubbell.
While most civil child sex abuse cases are handled on a contingency basis (which is strictly regulated by New York law and ethics rules), attorneys can also be retained for an hourly rate with fees ranging from a few hundred dollars per hour to over $1000 per hour. A few attorneys may represent clients for a fixed fee or on a sliding scale related to income or some other factor. Some even attorneys will take cases pro bono (i.e., without charge).
The National Center for Victims of Crime has an excellent overview of legal options for victims of childhood sexual abuse.
Conclusion
In summary, the long-fought struggle to pass the New York Child Victims Act created an overwhelming outpouring of victims and survivors of childhood sexual abuse seeking justice through the New York civil court system. While the courts are equipped to handle even thousands of new cases statewide, evaluating the viability of each case has not changed. Victims, survivors, and their attorneys still need to assess each case on the facts and the law. A trained trauma therapist is an essential part of healing and can help support victims and survivors through the often long and challenging legal process. While justice is never an easy road, access to the courts is an essential first step to addressing these historical wrongs and, as the governor said it best, “this is society’s way of saying we are sorry.”