New York’s enactment of the Child Victims Act is an extraordinary achievement which has unleashed long-denied demands for accountability. Since the new law allows previously lapsed claims to be filed in court, the next issue for victims and survivors is how to access justice. The answer to this question will be different for each person, but there are several basic considerations.
As I have long maintained, and many others have echoed, the Child Victims Act merely allows victims and survivors of childhood sexual abuse to access the courts. It does not mean the plaintiff automatically wins. It is not a so-called ‘giveaway’ to lawyers and survivors. It does not shift the burden of proof or lower the standard of care. It does not put any wrongdoer at any disadvantage. Ignore all the rhetoric by insurers and institutions bemoaning the passage of the Child Victims Act with dire warnings of bankruptcy and financial ruin. The same New York civil rules of procedure still apply (currently 700 individual sections and rules which are divided into 70 articles) and the burden remains on the plaintiff to prove their case by a “fair preponderance of the evidence.”
Generally speaking, in child sex abuse cases against institutions, survivors must show that the institution had actual prior knowledge of the perpetrator’s dangerousness or that the sexual abuse was reasonably foreseeable. In other words, institutional defendants must actually know, or should have known, about the perpetrator’s propensity for raping or sexually assaulting a victim. Without these baseline facts, a survivor’s claims, no matter how compelling, sympathetic, or awful, will likely be dismissed.
Institutions are not automatically liable for the actions of their employees. In fact, under longstanding New York law, institutions are not liable for crimes committed by their employees since those crimes are not considered part of the employee’s duties. What this basically means is that negligence is the primary basis for holding institutions liable in civil child sex abuse cases.
Then, of course, survivors must also prove that they were sexually assaulted by the perpetrator. As a plus, it is often difficult to deny sexual abuse if the institution had notice that the perpetrator had a known propensity to sexually offend. However, each case is different and based on its own unique facts and circumstances. There is no way to generalize about child sex abuse cases which are highly individualized on the facts and the law.
In summary, while the Child Victims Act provided much needed access to the courts, it did not change anything about the legal system’s longstanding response, or lack thereof, in actually providing justice for child sex abuse victims and survivors. For some survivors, their day in court is enough. For many others, compensation is essential to their healing and recovery. While anyone can bring a lawsuit against anybody (for almost anything), prevailing on that lawsuit through a jury trial to a judgement is becoming rarer and rarer in our civil justice system. Negotiation, alternative dispute resolution, mediation, and out of court settlements are all fundamental parts of the litigation process. Often having one’s “day in court” means meeting with a mediator, judge, or magistrate to resolve the case without a trial. There is no one path to justice and no singular template for resolving child sex abuse cases.
With this in mind, here are the options for survivors seeking legal representation in childhood sexual abuse cases under the New York Child Victims Act.
Pro Se Representation and Low-Income Legal Services
In New York, litigants are allowed to represent themselves in court, but if the above basic cursory overview is any indication, it is not an easy or straightforward undertaking for non-lawyers. One great resource for survivors considering pro serepresentation is LawHelpNY.org which is a comprehensive source of legal referral information. It is sponsored by many of the bar associations and pro bono legal offices across New York state and is an excellent place to begin if you are thinking about representing yourself or are looking for pro bono or low-cost legal representation. Although there are forms and guides on a variety of legal subjects, information about childhood sexual abuse and civil litigation is not available. The best way to utilize this site is to search for programs by location since general civil representation is not a search option.
The New York State Office of Court Administration maintains a CourtHelp website for individuals who want to represent themselves in the New York court system. There is also a New York specific site sponsored by the American Bar Association offering routine assistance on civil legal matters called Free Legal Answers.
For an in-depth primer on the civil litigation process in New York, albeit for attorneys, Professor Gerald Lebovits has written a series of articles on drafting New York Civil Litigation Documents beginning with this overview.
Unlike Georgia, which created the Wilbanks Child Endangerment and Sexual Exploitation Clinic (CEASE) as part of its 2015 statute of limitations reform, New York did not have the foresight (or quite frankly the ability given the two decade struggle to simply pass the Child Victims Act) to envision a similar resource center for New York child sex abuse victims and survivors. Under the Child Victims Act, the Chief Administrator of the Courts must promulgate rules for the timely adjudication of revived actions brought pursuant to the law. Hopefully, this will include measures to facilitate or streamline lawsuits by pro se litigants under the Child Victims Act.
Lawyer Referral Services
An excellent source of attorneys are the various legal referral services throughout New York. Many county bar associations have legal referral services as do the New York State Bar Association and the New York City Bar Association. On a national level, the National Crime Victim Bar Association maintains an attorney referral service. There is also the LRSConnect website which has links to lawyer referral services throughout New York state.
Private Attorneys and Lawfirms
There is no lack of attorneys in the State of New York. One estimate puts the number of attorneys at over 177,000. Obviously, not all of these attorneys are practicing and the vast majority of them have never set foot in a courtroom. Some of them represent defendants in criminal matters (an online search for a “child sex abuse attorney” frequently turns up criminal defense attorneys). Many focus on personal injury, medical malpractice, or general legal issues from trusts and estates to family law (attorneys are not permitted to ‘specialize’ in New York). There are an endless number of websites which maintain lists of attorneys including FindLaw, Avvo, Justia, SuperLawyers, and Martindale-Hubbell.
While most civil child sex abuse cases are handled on a contingency basis (which is strictly regulated by New York law and ethics rules), attorneys can also be retained for an hourly rate with fees ranging from a few hundred dollars per hour to over $1000 per hour. A very few attorneys may represent clients for a fixed fee or on a sliding scale related to income or some other factor. There are even attorneys who will take cases pro bono (i.e., without charge).
The National Crime Victims Bar Association has an excellent guide to civil lawsuits against perpetrators or other responsible parties which covers the attorney selection and retention process in greater detail.
In summary, the long-fought struggle to pass the New York Child Victims Act has created an overwhelming outpouring of victims and survivors of childhood sexual abuse seeking justice though the New York civil court system. While the courts are well-equipped to handle even thousands of new cases statewide, evaluating the viability of each case has not changed. Victims, survivors, and their attorneys still need to assess each individual case on the facts and the law. A trained trauma therapist is an essential part of healing and can help support victims and survivors through the often long and difficult legal process. While justice is never an easy road, access to the courts is an essential first step to addressing these historical wrongs and, as Governor Cuomo said it best, “this is society’s way of saying we are sorry.”
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James is an attorney who has practiced in New York for almost twenty years. He represents victims and survivors of sex abuse in religious, educational, governmental, and military institutions; campus sexual assault and rape, online sexual exploitation; child pornography; sextortion and revenge porn; and previously lapsed claims of childhood sexual abuse under New York state’s recently passed Child Victims Act.
James founded the nationally recognized Children’s Law Center in Washington, DC, and is an experienced trial attorney, and frequent commentator, lecturer, and author on legal issues affecting children and victims of sex abuse and exploitation. He founded the Marsh Law Firm in New York which is recognized worldwide for its work helping sexually abused victims obtain justice and rebuild their lives with dignity and respect.