Recently, Governor Cuomo signed into law the Child Victim’s Act, which expanded the criminal and civil statute of limitations in cases of child sexual abuse. Under the new law, the alleged perpetrators of sexual abuse on a child can be criminally prosecuted for such abuse until the victim is 28 years old if the conduct was a felony, or 25 years old if the conduct was a misdemeanor, both of which represent a five year extension from the statutes of limitation prior to the law’s enactment.  The statute of limitations in civil cases has been extended, and now a victim of child sexual abuse can bring a claim any time before they turn 55 years old.

Notably, the Child Victim’s Act also instituted a one year “look back period” in which any civil case for child sexual assault can be filed, regardless of the age of the alleged victim. From August 14, 2019, until August 14, 2020, civil sexual assault cases can be filed, regardless of when the incidents underlying the claim are alleged to have occurred. Since there is no limitation on the age of the cases filed within this look back period, cases have been filed that allege conduct that occurred many decades ago.

The challenge in these cases stems from the long time that has passed since some of these incidents occurred which means that defendants may have died, records may not have been retained, and prospective witnesses may have fading memories of what they might have witnessed. Navigating these kinds of cases will therefore be a challenge that we will see develop as these matters progress.

The effects of a childhood trauma can be devastating, and opening up this legal arena for these older claims may provide relief to some who have been affected, however, seeing these cases through trials will lead to a host of legal issues that we can expect will develop as these cases are litigated.

When defendants are alleged to have abused a position of power within certain organizations, the theory of "respondeat superior" comes into play. Headlines describing lawsuits that name businesses, non-profit organizations, religious institutions, or school districts have been splashed across front pages. These lawsuits demonstrate an attempt to hold organizations liable for the actions of their employees.

Under the theory of respondeat superior, an employer may be held liable for the torts (wrongdoings) committed by their employees, if the actions by the employees are committed within the scope of their employment. Under this theory, an employer can be held vicariously liable in a civil case against the employee if the employee was on the job at the time that the wrongdoing occurred, performing the functions they were employed to do. For example, if a coach was conducting a practice and then committed a tort at that time, a Plaintiff may choose to hold the school district liable for that tort jointly and severally with the actual perpetrator.

Muddling through the court system can be difficult, especially with the evidentiary issues presented by the age of these cases. Identifying the witnesses, documents, as well as the information held by all individuals involved is crucial for both Defendant and Plaintiff. 

As these lawsuits continue to be filed, acting swiftly is essential for both plaintiffs and defendants. Plaintiffs must act within the time frame established by the courts, and potential defendants must be diligent in investigating claims and preserving evidence when they first learn of a possible claim. For assistance with these matters, please contact a member of our litigation practice.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full-service law firm based in Rochester, New York, providing high-quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact us at 585.546.2500.