Abuse and Neglect Blog – United States Limitation
As practitioners and insurers dealing with claims related to sexual abuse, particularly child sexual abuse, consider IICSA’s recommendation to change the statute of limitations, the law in this area is constantly changing around the world, nowhere more than ‘in the USA.
On September 16, 2022, President Biden signed a bill that will eliminate the statute of limitations for people who were sexually abused as minors to bring civil actions.
The Eliminating Limits to Justice for Child Sexual Abuse Act eliminates time constraints on survivors to file civil complaints related to crimes of sexual abuse against minors, including forced labor, sex trafficking, sexual abuse and sexual exploitation of children. Previously, minors who survived such abuse could file federal claims until age 28 or up to a decade after the offense or injury was discovered.
The bill was originally introduced by Senators Dick Durbin and Marsha Blackburn and was co-sponsored by Senators Dianne Feinstein, John Cornyn and Patrick Leahy.
After the bill passed the House, Senator Durbin said that “The science of trauma is clear: it often takes years for victims to come forward,” He went on to say that “Our bipartisan bill honors fundamental notions of justice for survivors, and I was proud to work with Senator Blackburn and our colleagues in the House to see it through the finish line. By enacting this legislation, we can finally help survivors get through their day in court and have a moment of healing, when they are ready.
However, the statute of limitations has also changed for survivors of sexual abuse/assault who were adults at the time of their alleged abuse, as recent developments in the states of New York and California show.
On May 24, 2022, New York Governor Kathy Hochul signed the Adult Survivors Act (ASA) (S.66A/A.648A), creating a one-year window, from November 24, 2022, for adult survivors of sexual assaults that occurred when they were over 18 to pursue civil lawsuits against their alleged abusers, who would otherwise have been foreclosed.
The causes of action covered by the new SAA are any allegation of “intentional or negligent acts or omissions of a person for injury or physical, psychological or other condition suffered as a result of conduct that would constitute a sexual offence” committed against a person over the age of 18.
Governor Hochul said “Addressing sexual assault requires that we recognize the impact of trauma within our justice system. I am proud to sign this bill, which is part of our collective responsibility to protect each other and create an environment that allows survivors to feel safe. work is not done, the eradication of sexual assault begins with our ability to bring the perpetrators of these heinous acts to justice and this bill is a historic step forward.“
This was followed on September 19, 2022 by California Governor Gavin Newsom signing the Sexual Abuse and Cover Up Accountability Act (AB-2777). This law reinstates all claims brought on or after January 1, 2019 for acts of sexual assault that occurred on or after January 1, 2009, if those claims were barred solely due to the expiration of the statute of limitations.
AB-2777 also provides a one-year dunning period for a plaintiff/plaintiff to bring an action that would otherwise be barred if the plaintiff/plaintiff alleges the following:-
- the applicant/applicant has been sexually assaulted;
- one or more entities are legally liable for damages resulting from the sexual assault (which may be established by, among other things, negligence, intentional torts and vicarious liability); and
- entities, including their officers, directors, representatives, employees or agents, engaged in a cover-up or attempted cover-up of a prior instance or allegation of sexual assault by an alleged perpetrator of such abuse.
Applicants/Applicants you have until December 31, 2026 to bring any of these claims.
Interestingly, the California Amendments do not revive claims that were ultimately brought to court or settled between the parties, where the terms of this settlement were set forth in a written settlement agreement.
The new statutes of limitations in New York and California are novel in that they are the first to allow statute-barred claims for sexual assault survivors who were adults at the time of their alleged abuse.
While past changes to the Limitation Act in the United States regarding complaints of child sexual abuse have led to thousands of complaints against schools, religious institutions and organizations, youth groups and charities ( which has bankrupted many organizations and institutions they were brought against, such as the Boys Scout Association which we have covered in many previous BLOGS), recent changes to the limitation of survivors of sexual assaults occurring when they were over the age of 18, will have a much broader impact and reach, and will likely be organizations, institutions and employers who have not previously been affected by similar changes to the law in the area of sexual abuse children. For example, in California, AB-2777 specifically revives claims related to sexual harassment and wrongful termination when the basis of that claim was sexual assault and this is expected to have a significant impact on employers in California over the next three years and result in thousands of claims. in this area alone.
What can we learn about limitation from the United States? That there is no one-size-fits-all approach to the issue, different and more nuanced approaches may be taken depending on whether the claimant/complainant was a child or an adult when abused, what actions the entities that are legally responsible for damages arising from the sexual assault took, particularly if they were involved in an attempt to cover up previous assault allegations, to name a few.
However, it is fair to say that our colleagues in the United States will have provided IICSA with much food for thought when it comes to considering what changes might be made in this area in England and Wales. .