Many Victims Fall through the Cracks of New York's Child Victims Act
By Edward McKinley
ALBANY — More than 4,400 lawsuits have been filed against alleged child abusers under New York’s Child Victims Act, but there are still many victims remain unable to access the court system in order to seek justice. A decade-long political fight preceded the passage of the CVA last year. It expanded the statute of limitations for child sexual abuse and rape cases and opened a look-back window for bringing lawsuits against alleged abusers who had previously been immune from civil liability because of the time that passed. The look-back window was extended this summer for another year due to COVID-19, but activists, politicians and alleged survivors of childhood sexual abuse say the law didn’t go far enough and that many who suffered abuse as children are still unable to seek justice. “Every single attorney on Google that we called in New York — downstate and upstate — told us that they are not interested in taking on a case like this because they will only take on cases from big organizations,” said one woman, 34, in a phone interview with the Times Union. “It feels like abandonment all over again. Over and over again.” In that woman’s case, her alleged abuser was her mother. There’s no deep-pocketed institution behind her with insurance that a lawyer can look at to potentially foot the legal bill and pay a settlement or judgment. “In general, cases that don’t have a pot of gold at the end, it’s hard to find attorneys for unless you have the money to pay them,” said Assemblywoman Linda Rosenthal, a Democrat. Despite the fact that upwards of 90 percent of child sex abuse is perpetrated by people who know the child, such as a family friend, neighbor or parent, a vast majority of the cases brought under the CVA are against institutions including schools, hospitals, the Catholic church, Boy Scouts or others. A Times Union analysis a year ago found that more than 95 percent of cases named institutions as defendants. Since then nearly 4,000 more lawsuits have been filed, so a new, full analysis was not feasible, although it is obvious that there has not been a flood of cases against individuals to even out the numbers. “I’ve heard from many victims that they cannot find a lawyer,” said Gary Greenberg, one of the activists who helped lead the fight to pass the CVA and is mounting a write-in campaign for the New York 46th Senate seat. “They’ve attempted, you know, in multiple numbers to contact attorneys, and attorneys tell them that since their case does not involve an institution, they cannot represent them because it’s just not cost-effective for attorneys to take these cases.” Greenberg said he has been in touch with many people who are having trouble finding lawyers who will take their cases. Because the lawyers would be unable to bank on winning big settlements at the end and taking their pay out of that, they either refuse the cases outright or ask for expensive payments throughout the legal process that many people cannot afford. Several members of the Legislature said these difficulties are a broader issue. “A common practice in litigation is to go for the deep pockets,” said state Sen. Alessandra Biaggi, a Westchester County Democrat. “I really feel that it’s troublesome to leave these types of survivors without recourse.” One proposed policy measure to address that problem has been introduced by Sen. James Gaughran, a Suffolk County Democrat. Biaggi is a co-sponsor on the bill. The bill would add a box at the bottom of state tax refund documents that New Yorkers could check to donate to a fund that provides grants to legal nonprofits that represent people who want to bring sex abuse claims. The bill would also establish fines for people found criminally responsible of certain sex crimes, and those fines would also go into the fund. “What’s falling through the cracks is that there are a lot of people who clearly, I believe, have legitimate cases they want to bring and can’t find a lawyer to do it,” Gaughran said. “This would then give these folks a vehicle to do this.” But for some who experienced abuse, overcoming this financial hurdle to the legal system may still not be enough to obtain justice. A second woman, 23, who lives in Albany, said in a phone interview with the Times Union that she was molested once by her father when she was about 5 or 6 years old. It’s common for memories of childhood to be fuzzy for anyone, and traumatic experiences. She has been turned down by more than 10 law firms, she said. She said she has been grilled by lawyers when she’s discussed her case on the details of her abuse, asking how her father could only have abused her a single time. Usually the attorneys say they’re too busy to take the case or just stop returning her calls, she said; some have told her that lawyers aren’t going to take her case because claims against individuals are too much work for too little compensation. “I think there’s a lot of hurdles to probably any case in this realm, but particularly when it comes to child sexual abuse, we are seeing law firms being reluctant to take cases not only for the reasons of finances, but also because of evidence,” Biaggi said. For child sexual abuse cases brought forth decades later, memories of the events are often fuzzy — blurred by the passage of time and the effect of trauma on the human brain. And when the alleged abusers are individuals operating outside of a system, there isn’t a paper trail of personnel records to look at the way there would be at a school, for instance. For many, the best case scenario is he-said-she-said, which is often not enough to hold up in court. “It’s like (district attorneys) don’t prosecute every case because they think they won’t win, you know?” Rosenthal said. “I guess that’s inherent in the system that not everyone has access to justice if there’s a cost involved. That’s the sad truth.”
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