The New York Child Victims Act (CVA), which came into effect on Aug. 14, 2019, extended the statute of limitations for child sexual abuse cases. The limitations period permits civil cases to be brought until victims are 55 years old. Critically, the law includes a one-year window for time-barred survivors to file a civil lawsuit. During this look-back period, survivors can file a civil case against their abusers and any institutions that may have enabled the abuse, no matter how old they now are or how long ago the abuse happened. The CVA provided vital rights to hundreds of adult survivors of abuse whose claims had previously been extinguished five years after their eighteenth birthdays. After years of opposition, principally by religious organizations, the enactment of the CVA reflected the acknowledged reality that many victims require years if not decades to come to terms with their childhood abuse and seek accountability. The CVA also reflected that childhood sexual abuse is not a harm that ends with childhood, but frequently causes grievous harm to victims throughout their lives.

The Opening and Closing of the Look-Back Window

Creating a potential Catch-22 for the adult survivors given the opportunity to bring claims during the one year look-back period, the COVID-19 crisis has closed state courts to any new civil case filings and effectively stopped any of these cases from proceeding. On March 22, 2020, the New York Office of Court Administration (OCA) issued an administrative order prohibiting the receipt of filed papers by county clerks in New York state for non-essential cases. The order came days after a March 20, 2020 executive order from Gov. Andrew Cuomo suspending statutes of limitation in all legal matters. The OCA's administrative order prohibits the initiation of new legal proceedings, including the filing of lawsuits recently revived by the CVA. Given that the look-back window was set by statute and the tolling was done by executive order, unless the state Legislature amends the look-back window, there is the risk that claims that would otherwise be timely during the year-long window will be time-barred after the window closes.

Even before COVID-19, there had been calls to extend the look-back period. New York State Assembly Member Linda B. Rosenthal, who co-sponsored the CVA, has for months called for the look-back period to be extended. There is extensive research into childhood sexual abuse which delineates the long and uncertain process that victims go through to process their experience to reach the point that they ultimately decide to come forward to sue. Quite a few cases have been filed by victims in their sixties or seventies that detail years of shame, dysfunction and denial. Many victims will go decades without telling even spouses or therapists about years of sexual abuse that they suffered as adolescents or even pre-adolescents. Abuse is often endemic in institutions and one person coming forward can motivate others to begin the process of acknowledging their ordeal and realizing that they were not alone; they were victims; and they should be angry at the adults that failed to protect them, not ashamed of themselves.

The Window Has Been Critical for Victims

Our firm filed a case for a man in his 60s abused by a teacher at a school that employed a predatory coach for a quarter century. Weeks after the case was reported, a woman in her late 40s came forward saying she had gone to the same school and read about the case; that she had been violently abused by a different coach as a young teenager at the school; and had suffered in silence for decades. That coach was still at the school. She brought suit and the coach was at last separated from the school. A woman in her 50s came forward a few days later to say that she too had been abused by this same coach. The courage of each of these brave victims inspired the next to come forward to demand accountability and to expose an abuser. This is a process that takes time.

Yet not only were victims not given additional time beyond the one year, the window may be shuttered after eight months. According to New York State Senator Brad Hoylman, one of the co-sponsors of the CVA, the recent suspension of victims' ability to file actions in light of the COVID-19 pandemic and OCA administrative order has "effectively closed" the New York window to bring claims. Despite the fact that the CVA extension was raised in budget negotiations, the Legislature declined to lengthen the look-back window in the state budget, which is the keystone legislative package of the year in Albany and is often used as a vehicle for non-fiscal policy measures. Governor Cuomo's March 20, 2020 executive order suspending statutes of limitation in all legal matters may not apply to the one-year CVA window. This will certainly be a hotly litigated issue that defendants try to use to their advantage in court. At the very least, the Legislature and Governor Cuomo should provide clarification that any period in which filings were not permitted should be tacked on the look-back period so that the window for filing is a full year of court time.

Filed Cases Need To Move Forward

In the first eight months of the CVA, nearly 1,800 cases had been filed in New York. Many depict heartbreaking and terrible incidents of repeated child sexual abuse. But those cases have not progressed. Prior to the COVID-19 crisis, there had been a long stay of CVA cases in New York City, because the sheer numbers created a back-log in the courts' ability to hear all of the cases. The Deputy Chief Administrative Judge in December issued a case management plan for the collective handling of the numerous cases that had been filed in New York City. The plan adjourned the response date for outstanding discovery and prohibited the serving of further discovery. It set a time for pseudonym plaintiffs to provide identifying information and adjourned all motions other than motions to proceed anonymously.

The stay on discovery and motions was lifted in February, just before the pandemic struck. Discovery was set to move forward quickly, but now once again, everything is on hold. With so many of these cases dealing with events that occurred decades ago, memories fade; witnesses are aging or dying and documents are becoming unavailable. Indeed, document retention and even deliberate destruction have been issues in sex abuse cases in the past. There have been recent indications of a broader opening of the courts on a virtual basis.

It is important that these critical cases move forward as a matter of priority to bring justice and accountability while there is still time. It is also important that those who are continuing to agonize about whether to take the difficult step of coming forward be given the opportunity to do so. It would be wise policy to extend the window for filing in any event; many states have no statutes of limitations for child sexual abuse claims. But at the very least, the disruption to the courts caused by the terrible COVID-19 crisis should not prejudice adult victims of sexual abuse.

Jason Berland is a New York-based partner at Lewis Baach Kaufmann Middlemiss.