Readers will be very familiar with the growing momentum of #Me too movement, which gained international popularity following the lawsuit of film producer Harvey Weinstein for the sexual harassment and assault of numerous women whom he then forced into silence for many years.
Legislation in New York State has now been enacted to allow adult victims of sexual abuse to sue civilly for damages. The Adult Survivors Act, which will come into force on November 24, 2022, will allow adults who have suffered sexual abuse to pursue their civil lawsuits without having to overcome difficult statutes of limitations that currently make it difficult to pursue those claims.
This new legislation is known colloquially as a the comeback status, or look-back period law. The new laws set a stipulated window, usually at least one year, during which adult victims can bring claims that would otherwise be barred by statute of limitations. This may all sound quite new. In fact, nearly half of U.S. state legislatures have adopted similar claim windows in recent years as they meet the demands of a society that has become more concerned with how current limitation legislation can prevent abuse suits. In addition, reconstitution laws often contain a prospective extension of both criminal and civil statutes of limitations for the benefit of future claims that cannot be brought within the limited window.
US courts are also seeing an increase in the proportion of sexual abuse claims that are brought vicariously rather than directly against the abuser. We are, of course, very familiar with vicarious liability claims, not only because our law makes such claims relatively simple to pursue, but also because organizations will have greater insurance and/or funds then that the abuser may have few or no assets. Due to the structure of the US legal system, the ease with which vicarious liability claims can be pursued will vary, but there is statistical evidence that revival laws facilitate a significant increase in the number of claims. New York State has implemented a two-year recovery window for underage victims under its Child Victims Act. More than 10,000 applications have been filed. The first reported jury prize was $25 million. One can confidently assume that New York State’s Adult Survivors Act will generate many more claims.
In addition, New York City recently amended its Gender-Based Violence Victim Protection Act to provide a window of resuscitation for people “claiming to have been harmed by a party that commits, directs, enables, participates or conspires to commit a crime of gender-based violence. The two-year window, which can be used by adults and children, opens on March 1, 2023.
Unsurprisingly, organizations faced with these claims, many of which date back decades, are urged to locate their non-recent insurance coverage as a matter of urgency. Organizations that cannot find coverage will likely need to carefully consider how best to deal with these claims and their consequent financial impact, perhaps through some form of redress scheme (described in the US as claims programs) that independent experts should be engaged to create, organize and administer.