By: Anastasia M. McCarthy, Esq.
On Thursday, February 14, 2019, the Child Victims Act became law was signed by Governor Cuomo. Although the law’s origins are firmly rooted in the abuse scandal that has plagued the Catholic Church for more than five decades, it is anticipated that the CVA will have a profound and long-felt impact on nearly all institutions, public or private, that work with children. Below are questions that many will have as it pertains to this law:
Who does the new law impact? Briefly stated, any and all individuals and institutions that have in the past, or currently do, work with children. Specifically, the law allows for the commencement of a civil lawsuit for “physical, psychological or other injury or condition” against “any party whose intentional or negligent acts or omissions are alleged to have resulted in the commission [of certain defined (and illegal)] conduct. ”
What conduct falls within the scope of the Act? The CVA covers conduct, against a person younger than 18, that constitutes a sexual offense under Article 130 of the Penal Code, incest (as defined by the penal code), the use of a minor in a sexual performance (as defined by the penal code) and conduct that was otherwise outlawed by a predecessor statute in effect at the time of the tortious conduct. Article 130 of the Penal Code defines and prohibits the following conduct:
130.20 Sexual Misconduct
130.25 Rape in the Third Degree
130.30 Rape in the Second Degree
130.35 Rape in the First Degree
130.40 Criminal Sexual Act in the Third Degree
130.45 Criminal Sexual Act in the Second Degree
130.50 Criminal Sexual Act in the First Degree
130.52 Forcible Touching
130.53 Persistent Sexual Abuse
130.55 Sexual Abuse in the Third Degree
130.60 Sexual Abuse in the Second Degree
130.65 Sexual Abuse in the First Degree
130.65-a Aggravated Sexual Abuse in the Fourth Degree
130.66 Aggravated Sexual Abuse in the Third Degree
130.67 Aggravated Sexual Abuse in the Second Degree
130.70 Aggravated Sexual Abuse in the First Degree
130. 75 Course of Sexual Conduct Against a Child in the First Degree
130.80 Course of Sexual Conduct Against a Child in the Second Degree
130.85 Female Genital Mutilation
130.90 Facilitating a Sex Offense with a Controlled Substance
130.91 Sexually Motivated Felony
130.95 Predatory Sexual Assault
130.96 Predatory Sexual Assault Against a Child
The Statute of Limitations
In New York, the Statute of Limitations for a sexual tort claim on behalf of a minor previously depended on the theory of liability and the identity of the defendant—an intentional tort claim against an individual abuser was required to be commenced within one year of the plaintiff’s 18th birthday; a negligence claim against an institution, within three years of the plaintiff’s 18th birthday; and negligence claim against a municipal entity required a notice of claim within 90 days of the tortious conduct and commencement of a lawsuit within one year and 90 days of the plaintiff’s 18th birthday. Now, a plaintiff has until age 55 to commence a sexual tort action for abuse occurring during childhood, regardless of the theory of liability, against any party.
The Revival of Expired Claims
In addition to generally extending the Statute of Limitations, the law also provides a one year window (beginning August 14, 2019 and ending August 14, 2020) for the revival of claims otherwise expired or previously dismissed. Specifically, the law allows people now over age 55 to commence a sexual tort lawsuit for events occurring before his or her 18th birthday. Similarly, claimants whose claims or causes of action were previously dismissed for failure to timely file suit or failure to timely file a notice of claim may also revive their prior claims. Revival claims arising under this provision of the law are afforded a trial preference and it is anticipated that these claims will carry with them the most concerning evidentiary issues.
The Municipal & Education Laws
Municipal defendants, including school districts and district employees, will no longer be entitled to service of a Notice of Claim for lawsuits arising from the conduct covered by the CVA; not only does this mean delayed notice of individual claims, but failure to serve a timely Notice of Claim will no longer constitute a dispositive defense and 50-h examinations will no longer be available for cases arising under the Act.