NY Bill No Help for Victims of Sex Abuse at Public Institutions – Legal Analyst
June 6, 2018
|Backers of a New York bill to open a lawsuit window for civil action from victims of past sexual abuse are wrong to say it would apply to public institutions, a former judge has said.|
In a May 21 legal analysis of the proposed Child Victims Act, Judge Susan Phillips Read, former associate judge of the New York State Court of Appeals, said that if it becomes law, “a 34-year old man whose high school wrestling coach sexually abused him 20 years ago would not be time-barred from recovering damages from his high school if the man attended a private school and sued within the one-year window, but he would be precluded from recovering damages if he attended a public school instead of a private school.”
Read wrote the analysis at the request of Richard Barnes, executive director of the New York State Catholic Conference, which opposes the bill in its current form.
“While the sponsors have professed that their bill does not shield public schools from exposure, Judge Read’s comprehensive analysis clearly shows otherwise,” Barnes said June 5, charging that the bill has a double standard which would “create a pernicious further injustice.”
The bill has been proposed in previous legislative sessions. In the current session, it passed the New York Assembly with strong bipartisan support but stalled in committee in the Republican-controlled Senate. The bill could pass the Senate next year if Democrats reclaim a majority in that body, the New York Daily News reports.
The bill would allow childhood victims to file civil actions before the age of 50.
Under the law’s current provisions, plaintiffs seeking to file claims against public entities must file a “notice of claim” of their intention to sue within 90 days of the incident, or forever lose the right to their claim.
The proposed bill will remove this limitation in the section of the bill regarding future abuse cases, but it makes no mention of it in a section that lifts the statute of limitations on lawsuits for a temporary, one-year window.
In Read’s view, it is unlikely that a court would regard the omission as “anything other than intentional.”
Attempts to enact the bill as drafted would mean that survivors of abuse in public institutions would see their legal claims rejected in court. They “will end up without a remedy as happened in California,” Read said.
While California legislators in 2002 claimed their retroactive bill was all-inclusive, the California Supreme Court ruled that a school district could not be sued because the victim did not file a timely notice of claim as required by law.
The California legislature passed a similar bill in 2013 and 2014, but Gov. Jerry Brown vetoed them on the grounds that the extension of the statute of limitations was “simply too open-ended and unfair” because legislators chose not to apply the extension to public institutions.
Barnes stated, “Sexual abuse is a crime that is not confined to private institutions. We as a society have a moral obligation to prevent it and to punish abusers. Doing so requires a comprehensive approach that treats all victims and survivors equally and holds public and private institutions equally accountable. The New York State Legislature must not pass and Governor Cuomo must not sign any bill that would create two classes of victims.”
In March, Cardinal Timothy Dolan of New York met in private with Gov. Andrew Cuomo to discuss the bill. He contended that the temporary window lifting the statute of limitations would be “toxic” and “very strangling.” Such a window means “the only organization targeted is the Catholic Church,” he said, according to the Buffalo NPR news station WBFO.
The cardinal backed a version of the bill that did not include the window lifting the statute of limitations.
The bill also faces opposition from Orthodox Jewish community leaders, the Boy Scouts of America, and insurance companies, who fear financial hardship from the lawsuits.
As of December 2017, nearly 200 sex abuse victims of clergy in the New York archdiocese had received more than $40 million in compensation through its Independent Reconciliation and Compensation Program.
In other states that have created temporary windows allowing past sex abuse cases, dioceses and other organizations have faced hundreds of millions of dollars in legal decisions or settlements, with some cases involving decades-old incidents.
Some Republican legislators in New York have proposed an alternative bill to compensate victims with public money instead of from perpetrators or institutions where the crimes may have happened. The money would come from a $300 million asset forfeiture fund under the control of the Manhattan district attorney’s office. The compensation would be available only to those who have not been previously compensated for abuse or who qualify for traditional legal recourse, the Albany Times-Union reports.
Cuomo, who supports the Child Victims Act, was critical of the proposal, saying the fund would likely not have enough funds to compensate victims justly.
Similar legislation is the subject of public debate in Wisconsin, where gubernatorial candidate Matt Flynn has come under criticism from his Democratic primary competitors. Flynn represented the Archdiocese of Milwaukee against victims of sex abuse by its clergy during his work as an attorney, the Wisconsin newspaper the Capital Times reports.