Assemblywoman Aravella Simotas, joined by Sen. Kemp Hannon and Assemblyman Richard Gottfried, urges passage of her legislation last year. Photo: Courtesy of the New York State Assembly

State lawmakers and Gov. Andrew Cuomo have come to an agreement on extending the statute of limitations for rape charges and lowering the standard for claims of workplace sexual harassment to be pursued through litigation or an administrative tribunal.

Cuomo announced both deals Monday during a radio interview, after which lawmakers confirmed the agreement.

Legislation was introduced over the weekend to address both issues, which signaled an agreement between Cuomo and lawmakers during the final days of this year's legislative session. Lawmakers are scheduled to leave Albany for the year Wednesday.

Both bills are sponsored by Assemblywoman Aravella Simotas, D-Queens, and state Sen. Alessandra Biaggi, D-Westchester. They've been among those leading the charge in the Legislature for further action to address sexual harassment in the workplace, even arranging a pair of hearings on the issue earlier this year.

Both are also original sponsors of legislation that would have eliminated the statute of limitations for rape in the second and third degree, meaning those charges could be brought at any time. First-degree rape already has no statute of limitations in New York.

The new version of that bill doesn't go as far as eliminating the statute of limitations for those charges, but it does extend them from the current cap of five years. It also includes a more expansive list of crimes, according to the bill.

The statute of limitations for rape in the second degree and criminal sexual act in the second degree would be extended to 20 years by the bill. The statute of limitations for rape in the third degree and criminal sexual act in the third degree would be extended to 10 years.

Victims would also be able to bring civil litigation against their alleged assailants for up to 20 years after those offenses, according to the bill.

The bill isn't what Cuomo and lawmakers had proposed earlier this year. They had originally sought to eliminate the statutes of limitations altogether for those crimes. Simotas said they instead decided to extend them to protect the rights of defendants.

“The concern is always to ensure that citizens have the right to defend themselves and because of passage of time, lapses in memory, and an inability to actually compile evidence for defense, it would likely be a violation of the Sixth Amendment to prevent people from allowing them to mount a defense,” Simotas said.

The New York State Defenders Association, an organization representing the state's public defenders, has historically been opposed to eliminating the statute of limitations for rape in the second and third degree, according to its executive director. The District Attorneys Association of the State of New York doesn't have a position on the bill.

A final agreement to change the state's laws on sexual harassment turned out to be close to what Cuomo and lawmakers were seeking, but didn't include everything they wanted.

“We can always do more to protect women and the citizens of our state, but it's important that we have progress in these areas, and we live to fight another day,” Simotas said.

The state currently mandates that, in order to face action, sexual harassment in the workplace must be “severe or pervasive.” Advocates have said that standard can be hard to meet. Someone could be uncomfortable at work, but their alleged harasser's actions could be deemed not severe or frequent enough to be met with action, for example.

The new bill states clearly that claims of harassment in the workplace can be brought “regardless of whether such harassment would be considered severe or pervasive.”

It would also eliminate part of what's called the Faragher-Ellerth defense, which is commonly used by employers to dismiss claims of sexual harassment.

The defense was created from two different U.S. Supreme Court decisions. Those rulings found an employer is not liable for sexual harassment if it can show the employee didn't follow the employer's policy for addressing inappropriate behavior, take the directed steps during an investigation, or comply with other standards established by that procedure.

The new bill would weaken that defense by stating that employees don't have to rigidly follow their employer's policy or standards for addressing harassment when bringing claims of inappropriate behavior.

The text of the bill says that an employer can still be held liable for claims of harassment, even if an individual did not make a complaint to the employer at the time. An employer would still be able to front an affirmative defense to those claims, according to the bill, but it wouldn't be quite as strong.

“It shall be an affirmative defense to liability under this subdivision that the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences,” the bill says.

The bill would enshrine those safeguards for each protected class, rather than just sex. Those include race, sexual orientation, genetic characteristics and several others included in state law.

Simotas said the bill didn't include everything she wanted, but she's planning to continue her push for stronger laws addressing sexual harassment in New York. Legislation will likely emerge in the coming months on the issue after lawmakers heard from a number of witnesses at one of two public hearings on the issue last month.

“Can we go further? Yes. Am I done? No,” Simotas said. “But I believe it's important that we move the ball forward even if we haven't gotten to the endzone and gotten a touchdown.”

READ MORE:

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