New Jersey, California and North Carolina join list of jurisdictions that have enacted “revival windows” for time-barred sex abuse claims.
New Jersey “revival window” for time-barred sex abuse claims effective as of December 1, 2019; California and North Carolina to follow in January 2020
This year has been a busy one for state legislatures, many of which have enacted statutes that extend or temporarily suspend the time limits for individuals who claim they were sexually abused as children to seek legal relief. While most jurisdictions have passed laws that limit the victims’ recourse to suing the individual perpetrators who allegedly abused them, several jurisdictions also permit plaintiffs to bring civil actions against private and public entities that employed, or may have otherwise had a duty to supervise, the alleged perpetrators. In addition to extending the applicable time period for victims to bring claims against perpetrators and entities related to the abuse, in this year alone, eight jurisdictions have enacted laws that “revive” potential claims that would otherwise be barred due to the expiration of the relevant statute of limitations (“Reviver Statutes”). With the exception of Vermont, which has eliminated all statutes of limitations applicable to child sex abuse claims both prospectively and retroactively, the newly enacted laws have opened a “revival window” for a specific amount of time for victims whose claims have expired to bring their lawsuits. The recently enacted New York Child Victims Act (“CVA”), provided for the opening of a 12-month window for plaintiffs claiming they were victims of child sexual abuse to bring suits that would otherwise have been time barred. Since the New York CVA window opened on August 14 2019, approximately 1180 suits have been brought by individuals alleging they were sexually abused. Three other states—New Jersey, California and North Carolina—have recently enacted similar legislation. The revival window for New Jersey opened on December 1, 2019 (New Jersey), and the windows for California and North Carolina will open on January 1, 2020.
The New Jersey legislation, which was signed into law on May 13, 2019, expands the ability of individuals to pursue civil claims against alleged attackers and the entities alleged to have allowed the assaults to occur. Under the new law, child victims will be allowed to file lawsuits the later of their 55th birthday, or seven years from the date they first became aware of the abuse. Adult victims of sexual abuse, no matter their age, may bring suit within seven years from the time of discovery of the abuse. The New Jersey legislation also includes a two year window during which all victims who were previously barred from filing claims due to an expired statute of limitations may bring suits against perpetrators and organizations. This “revival window” opened on December 1, 2019.
While the volume of new litigation filed in the first days of the New Jersey two-year “revival window” did not match the frenzy that occurred in New York when its “revival window” opened in August of this year, as was anticipated, each of New Jersey’s five Roman Catholic dioceses were named in lawsuits. Dioceses in Pennsylvania (a state which has recently passed statute of limitations reform without a “revival window”) were also sued by plaintiffs alleging that Pennsylvania priests abused them on trips taken from the Pennsylvania dioceses across the Delaware River to the Jersey Shore. There was also a wave of new lawsuits filed against the Boy Scouts of America in New Jersey. Because the Boy Scouts were based in North Brunswick, N.J., from 1954 to 1979, plaintiffs’ attorneys are maintaining that sex abuse claims from across the country alleged to have occurred during that time period are eligible to be heard in New Jersey’s courts. Other organizations sued in the first days of the New Jersey “revival window” include Irish Dance Organizations, CLRG (An Coimisiún Le Rincí Gaelacha) and IDTANA (The Irish Dance Teachers Association of North America), the Secaucus Board of Education, various public and private schools and a rehabilitation center specializing in privatized corrections, detention, and mental health treatment.
A distinctive feature of New Jersey’s “revival window” is that it applies to acts of sexual misconduct perpetrated against both child and adult victims. Because the windows in other states have only applied to victims abused when they were children, the organizations named as defendants in the reviver lawsuits have largely been limited to those institutions offering services to minors, such as educational and daycare institutions, boys and girls clubs, camps, and hospitals. The revival of claims against those responsible for sex abuse perpetrated against adult victims could significantly broaden the scope of organizations that find themselves susceptible to lawsuits alleging negligent hiring, supervising, and retention of alleged perpetrators. Adult claims are also more likely to arise in the context of the workplace, which could expand the lines of insurance coverage likely to be called upon to respond to such claims.
To date, claims made as a result of the enactment of Reviver Statutes have largely been considered a general liability exposure, but in instances where the claims revived are connected with the workplace, some of the same coverages called upon to respond in the context of sexual harassment and discrimination claims may also be exposed.
On October 13, 2019, California’s Governor signed into law a comprehensive bill permitting victims of childhood sexual abuse to file civil lawsuits the later of the plaintiff’s 40th birthday, or five years from discovery of the abuse. However, if the action is being filed against a person or organization (other than the perpetrator) that is claimed to have owed a duty of care to the alleged victim, the action must be filed by the plaintiff’s 40th birthday unless the defendant was on notice of misconduct that created a risk of childhood sexual abuse, or failed to take reasonable steps to ensure that such abuse did not occur. The new law also institutes a three-year revival window, beginning January 1, 2020, during which victims of childhood sex abuse may bring claims that would have otherwise been time barred.
Unique to the newly enacted California law is a provision that provides for added penalties against institutions that covered up childhood sexual abuse. Courts will have the power to require a defendant to pay up to three times the total of actual damages to the victim if the defendant attempted to “cover up” the abuse. “Cover up” is defined in the statute as “a concerted effort to hide evidence relating to childhood sexual assault.”
California’s new legislation is not the first time California has revived previously time-barred child sex abuse claims. In 2003, California instituted a one year revival window for previously expired child sex abuse claims to be brought against private organizations. During that 12-month period, 1150 claims were filed. The current social climate, fueled by the #MeToo and #TimesUp movements, as well as by the release of state grand jury reports detailing investigations into certain Catholic Dioceses and a better understanding of the psychology of abuse, may result in an even larger number of claims being filed under California’s new 36-month revival window. The large number of claims filed to date as a result of the New York Child Victims Act suggests that the current social climate indeed has had an impact. As noted at the outset of this article, during the four months since the New York revival window opened on August 14, the total number of claims filed (approximately 1180) has surpassed the total filed during the entire 12-month revival window instituted by California in 2003 (1150).
The new North Carolina legislation, which was signed into law on November 7, 2019, extends the statute of limitations for civil actions brought by child abuse victims against those responsible for the alleged abuse to the victim’s 28th birthday. The early drafts of the legislation advocated for a much older age, and North Carolina’s Attorney General has said he plans to push for an increase to age 40 in future sessions of the North Carolina General Assembly.
Beginning January 1, 2020, individuals who were sexually abused as children will have a two-year window to bring civil claims that otherwise would have been time barred against perpetrators and organizations. Additionally, where a perpetrator is convicted of a felony sex abuse against a child, the victim may bring a civil claim within two years of the conviction regardless of his or her age at the time of filing the post-conviction civil claim.
Challenges on the Horizon
Whether these recently enacted Reviver Statutes will survive judicial scrutiny remains to be seen. One of the first legal challenges to a Reviver Statute was made on November 12 in a motion to dismiss filed in the New York Supreme Court in Nassau County. In the filing, the Diocese of Rockville Centre in Long Island, New York, challenges the New York Child Victims Act, claiming the CVA is barred by the due process clause in the New York state constitution. The Rockville Centre Diocese maintains in its filing that “[a] basic tenet of every legal system, including New York’s, is that statutes of limitations protect a fundamental right of repose that benefits both potential defendants and society at large by ensuring that individual rights are protected and the courts can function properly.” The Rockville Centre Diocese argues that “[t]he [New York] Court of Appeals has held that the Due Process Clause allows for the exercise of what it has characterized as an exceptional legislative power ‘to remedy an injustice’ created by circumstances that prevented the assertion of a timely claim,” and that “[t]he claims [revived by the CVA] do not fit within the scope of this narrowly circumscribed legislative authority.”
The day after the Rockville Centre Diocese filed its motion to dismiss, Mary De Turris Poust, spokeswoman for the Diocese of Albany, issued a statement which said “[t]he Diocese of Albany has no intention of going that route . . . [the Diocese of Albany is] going to allow litigation to play out in each case that is filed.” Whether the other state dioceses and the long list of other public and private organizations sued as a result of the enactment of the CVA will follow the Rockville Centre Diocese’s lead and challenge the constitutionality of the CVA remains an open question, as does the fate of any judicial review of the Reviver Statutes recently enacted in other states.
Joy Langford is a partner and Susan Aldridge is counsel at Norton Rose Fulbright US
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