New York State Senate

Democratic Policy Group

Don’t Put a Cap on Justice

Why the Child Victims Act is Worth it
Senator Brad Hoylman, Chair
Senators Leroy Comrie, Velmanette Montgomery, Kevin S. Parker,
Diane Savino, José M. Serrano, and David Valesky
Policy Group Members

Senator Andrea Stewart-Cousins Senator Jeff Klein

Democratic Conference Leader Deputy Democratic Conference Leader
 Don’t Put a Cap on Justice
Why the Child Victims Act is Worth It

New York is one of the worst states in the nation for survivors of child sexual abuse. New York
requires most survivors of child sex abuse to sue by the age of 23, long before most survivors
report their abuse. Because of this restrictive statute of limitations, thousands of survivors are
unable to sue or press charges against their abusers, who remain hidden from law enforcement
and pose a persistent threat to public safety.

The New York State Senate Democratic Conference strongly advocates reform of New York’s
unfair laws on child sexual abuse through passage of the Child Victims Act, which would open
courthouse doors to the thousands of survivors of sexual abuse in New York State by extending
the statute of limitations to age 28 in criminal cases and to age 50 in civil cases. It would also
establish a one-year window in which adult survivors would be permitted to bring a lawsuit, even
if the statute of limitations had already expired. Both public and private institutions would be
subject to such claims if they were liable for harboring abusers.

Some opponents of the Child Victims Act have recently proposed creating a $300 million
compensation fund with public dollars. Based on national estimates, however, the proposed fund
is less than one-half the required amount, which means New York survivors would be severely
undercompensated for their injuries. Further, the proposal would shift financial responsibility for
claims from abusers and institutions to New York taxpayers, shielding the culpable parties from
public scrutiny and creating a perverse incentive for them to persist in their abhorrent behavior.

In contrast, the Child Victims Act would allow survivors to be fully compensated through the
judicial system and shift the cost of abuse from survivors to those who have caused it. Private
sector costs would be manageable, borne in part by insurance. The Child Victims Act would
actually reduce public costs both through reductions in Medicaid and other social services
spending and by preventing future acts of child sex abuse.

I. THE NEED FOR THE CHILD VICTIMS ACT

What is the Child Victims Act?

The Child Victims Act (S6575/A5885-A) provides new and expanded remedies for victims of
child sex abuse in New York. If enacted, the Child Victims Act would:

 Extend the statute of limitations for criminal prosecutions of crimes of child sexual abuse
by 5 years, allowing survivors to press charges until the age of 28;
 Extend the statute of limitations in civil actions predicated on crimes of child sexual
abuse by 27 years, allowing survivors to file claims until the age of 50;
 Create a one-year period in which presently time-barred civil claims could be revived;
 Permit claims against both public and private institutions, leveling the playing field for
survivors regardless of where sexual abuse claims took place; and
 Provide for training for judges handling cases involving the sexual abuse of children.

1
On May 1, 2018, the Assembly overwhelmingly passed the Child Victims Act by a vote of 130
to 10, with strong bipartisan support.

Why do we need the Child Victims Act?

Justice for survivors - New York applies a very strict statute of limitations on civil
actions predicated on child sexual abuse, which expire by the time a victim turns 23,1 a
full 29 years before the average age of reporting.2 This leaves most survivors unable to
pursue their claims. Further, courts have exacerbated this situation by refusing to adopt a
“discovery rule,” which would start
the clock when the survivor realizes
Healthcare costs are 16% higher for they were abused, rather than when
they turn 18.3 The Child Victims Act
women victims of child sexual abuse. would change this by allowing a
survivor to sue until age 50.

 Identify hidden child predators – Because of New York’s restrictive statute of

limitations, survivors are unable to pursue claims, resulting in child sexual abuse
predators being left at large in the state, hidden from prosecution or civil penalties. In
states where there were civil revival periods, litigation discovery has led to the
identification and, in some cases, prosecution of hidden predators. In California, for
example, over 300 predators were identified.4 By providing adult survivors a one-year
period in which to pursue time-barred claims, the Child Victims Act would do the same.

 Shift costs to the responsible parties – New Yorkers pay for child sexual abuse through
reduction in productivity, reduced tax revenue, and the long lasting and expensive
medical and social needs of child sexual abuse survivors and their families. Child sexual
abuse can lead to long-term symptoms that affect the child well into and through
adulthood, including, among others: PTSD, anxiety, and depression; sexual disorders;
alcoholism, drug abuse, and eating disorders.5 These treatments are expensive and last for
life. According to one study, healthcare costs are 16% higher for women victims of
child sexual abuse.6

At the same time, the perpetrators and the institutions that created the conditions for the
abuse have been given the most effective tool – a short statute of limitations – to avoid
footing the cost. The Child Victims Act would force perpetrators and those who
protected them for the harm they made happen, estimated to be $210,012 in medical
costs per victim.7 The Child Victims Act shifts these costs from survivors and the
taxpaying public as a
whole to the people and
institutions who have
benefited from being in the
Child sexual abuse survivors face an
shadows. This is not only estimated $210,012 in medical costs each.
fair, but also economically
sound.

2
 II. OTHER STATES TAKE THE LEAD

New York is an outlier among states in limiting the claims for the survivors of child sexual
abuse, having one of “the least victim-friendly reporting laws in the country.”8 In contrast, over
the last decade, other states have started to reform their statutes on child sexual assault far
beyond the restrictive laws of New York, leading to significant restitution for survivors across
the country.9 For example:

 In California, approximately 1,150 survivors filed claims during its one-year window
for a revived statute of limitations in 2003.10

 Connecticut extended its civil statute of limitations, and revived all claims in cases
where the plaintiff is 48 years of age or younger.11 Upwards of 200 survivors have since
come to court, including cases against the Catholic Church, the Boy Scouts of America,
and, in one particularly egregious case, a hospital where a doctor purporting to perform
studies on child development was in fact producing child pornography.12

 Delaware provided a two-year window for a revived statute of limitations from 2007 to
2009,13 during which time 175 survivors filed claims.14

 Hawaii enacted a two-year lookback window, which was extended to four.15 In that
time, about 200 victims of child sexual abuse filed lawsuits, resulting in multimillion-
dollar settlements against a large private school and the Catholic Church. A bill to again
reopen the window until April 2020 passed the Legislature unanimously in April 2018.16

 In 2014, Massachusetts revived all claims as long as the plaintiff was 53 or younger (but
did not enact a lookback window).17 At least 100 survivors have since made claims.

Data courtesy of CHILD USA, www.childusa.org.

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  Minnesota's window statute, the Child Victims Act,18 went into effect in May 2013 and
ran for three years from 2013 to 2016.19 In that time, approximately 1,000 lawsuits were
filed.20

 Utah enacted a measure providing for a three-year window starting in May 2016 for
claims that were previously time-barred and extending the limitations period to 35 years
from the victim’s 18th birthday.21 There have since been prominent lawsuits filed against
institutions such as the Church of Jesus Christ of Latter Day Saints and the University of
Utah Hospital.

Data courtesy of CHILD USA,

USA. www.childusa.org.

III. THE COST OF JUSTICE

The costs associated with child sexual abuse are significant. Though each case is unique, it is
possible to predict the overall costs. Based on statewide estimates, the Child Victims Act would
allow approximately 2,000 survivors to sue their abusers and the institutions that protected
them.22 Assuming each claimant receives an award equal to the national average settlement of
$350,000, the total amount needed to make them whole would be approximately $700 million.23

Laws similar to the Child Victims Act in other jurisdictions have put financial strain on private
institutions and their insurers; however, there have been no involuntary bankruptcies.

In the public sphere, there is even less

Passage of the Child Victims Act could
save the State as much as $350 million
from the Medicaid budget.
evidence of financial strain. In fact,
experts argue that passage of the
Child Victims Act could actually
result in a significant cost savings to
the State. Much of the settlement

4
money would actually be returned to the State in the form of reimbursements to Medicaid to
cover the higher medical costs incurred by survivors.24 This figure may reach as high as 50% of
the total amount received in settlements. Accordingly, passage of the Child Victims Act could
save the State as much as $350 million from the Medicaid budget.25

Fears that passage of the Child Victims Act would create an unmanageable burden on public
school systems are overblown. There are some benchmarks available for public school
settlements when they are publicly reported. Amounts paid out vary dramatically, but there is no
national database collecting such results and most estimates are non-scientific.26 However, there
is no evidence to suggest that these outcomes are unjust: indeed, they shift the burden of these
costs from society to where it belongs—on the abusers and the institutions that protected them.

In light of the experiences of other states, as well as some of the selected settlements described
below, it is clear that a substantial sum will be required to fully compensate the thousands of
survivors of child abuse in New York State. Passage of the Child Victims Act would ensure that
this burden falls upon the perpetrators and not the taxpayer.

SELECTED SETTLEMENTS
Settling party
Los Angeles Unified School
District (CA) (2014)27
Los Angeles Unified School
District (CA) (2016)28
Kamehameha Schools (HI)
(2018)29
Roman Catholic Diocese of
Wilmington (DE) (2011)31
Torrance Unified School
District (CA) (2018)32
Marion Independent
Community School District
(IA) (2017)34
Clark County School District
(NV) (2017)35
Archdiocese of Hartford
(CT) (2012)
Deerfield Academy (MA)
(2016)37
Amount of settlement and
number of children involved
$139.25 million (82
children)
$88 million (30 children)
$80 million (32 children)
$77 million (142 children)
$31 million (22 children)
$600,000 per child
$250,000 (1 child)
$200,000 per child
$200,000 (1 child)
Insurance coverage
Insurance coverage current
subject of litigation
Insurance information not
available
Contributions received from
insurance30
Insurance information not
available
$27 million covered by
insurance33
Settlements were negotiated
by insurers themselves
Insurance information not
available
Covered by insurance
following litigation36
Insurance information not
available

5
 IV. WHY THE PROPOSED FUND WON’T WORK

Some opponents of the Child Victims Act argue that New York should establish a fund with
monies from civil asset forfeiture funds. Though this approach may have superficial appeal, it
suffers from several flaws, explaining why no other state has used this method of
compensation.38

First, it caps the amount of restitution that is made available to victims, which—as noted
above—may reach $700 million. Once the fund is exhausted, other survivors may not be able to
make claims. The fund administrator may also unfairly cap recoveries if more survivors make
claims than there is money available to pay them.

Second, it diverts funds from other

No other state has taken the approach of productive uses that would
otherwise need to be paid from
establishing a fund with taxpayer money. other taxpayer monies. In effect,
this doubles the loss to the State
because in addition to its previous
obligations under Medicaid, it must also pay the economic restitution. This restitution should be
paid to survivors by abusers and the institutions that harbored them, rather than by other
taxpayers.

Finally, the fund does not serve the interests of justice. It would deny survivors their right to a
day in court, with a trial in front of a jury of their peers. Beyond that, the administrator’s decision
would not be reviewable by a judge, and the administrator would not be permitted to grant
punitive damages. It also would deny discovery to survivors, discovery which could be critical to
identify other perpetrators and victims. In addition, the fund would not serve as a disincentive for
culpable parties; in fact, just the opposite would be true. Abusers and the institutions that have
protected them would have little financial interest to change their abhorrent behavior under a
public compensation fund because they would not be paying out of their own pocket.

1
N.Y. C.P.L.R. § 213-c.
2
https://www.clinicalkey.com/#!/content/medline/2-s2.0-24669770
3
Zumpano v. Quinn, 6 N.Y.3d 666 (2006).
4
See http://sol-reform.com/News/wp-content/uploads/2013/08/RelativeSuccess_5_16_16.pdf.
5
https://www.ptsd.va.gov/public/types/violence/child-sexual-abuse.asp
6
http://www.preventtogether.org/Resources/Documents/Health_Impact_on_Youth.pdf
7
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3776454/
8
Only Alabama, Georgia, Michigan and Mississippi have comparably restrictive statutes of limitations for child
sexual abuse as New York. https://www.nytimes.com/2018/01/11/opinion/albany-child-victims-act.html
9
For a fifty state survey, see CHILD USA, Child Sex Abuse Statute of Limitations Reform in the Wake of the Boston
Archdiocese Clergy Sex Abuse Scandal January 2002, available at
https://static1.squarespace.com/static/5a120b962aeba581dd692cd4/t/5ad929f3758d466f749214e8/1524181553
971/2018_CHILDUSA_SOLReport4.19.18.pdf
10
Cal. Code Civ. Proc. § 340.1; https://www.childusa.org/law/
11
Conn. Gen. Stat. § 52-577d.

6
12
See, e.g., Doe v. BSA Corp., 151 A.3d 841 (Conn. 2016); Doe v. St. Francis Hosp. & Med. Ctr., 72 A.3d 929 (Conn.
2013).
13
10 Del. Code Ann. § 8145. Delaware also enacted a second window for healthcare providers. Over 1,000 victims
sued one physician under that window.
14
https://www.childusa.org/law/
15
Hawaii Rev. Stat. § 657-1.8.
16
https://www.capitol.hawaii.gov/measure_indiv.aspx?billtype=SB&billnumber=2719
17
Mass. Gen. Laws ch. 260 § 4c.
18
Minn. Stat. § 541.073. https://www.childusa.org/law/
19
http://www.businessinsurance.com/article/00010101/NEWS06/301049979/Minnesota-law-extends-sexual-
abuse-filing-window,-puts-pressure-on-archdiocese
20
https://www.childusa.org/law/
21
Utah Code Ann. § 78B-2-308. See also https://www.sltrib.com/news/2017/10/01/how-one-woman-sued-her-
childhood-sexual-abuser-years-later-and-won-thanks-to-a-change-in-utah-law/
22
https://static1.squarespace.com/static/5a120b962aeba581dd692cd4/t/5a6f6f0fe2c48387dfd2f9e8/1517252368
762/NY_CHILDUSA_Budget_Analysis_+CVA_2018.pdf
23
Ibid.
24
Ibid.
25
Ibid.
26
https://www.wsj.com/articles/a-look-at-sexual-harassment-and-assault-settlements-in-schools-1514386801
27
https://www.scpr.org/news/2014/11/21/48132/140m-settlement-in-miramonte-civil-suit-against-la/
28
https://www.reuters.com/article/us-california-settlement-idUSKCN0Y81L5
29
http://www.khon2.com/news/local-news/kamehameha-schools-settles-sexual-abuse-lawsuit-for-80-
million_20180306071941462/1012662960
30
http://www.ksbe.edu/our_commitment_to_student_safety/highlights_of_the_settlement/
31
https://www.reuters.com/article/us-church-abuse/wilmington-diocese-agrees-to-77-million-abuse-settlement-
idUSTRE7126WT20110203
32
https://www.dailybreeze.com/2018/05/09/torrance-unified-reaches-31-million-settlement-with-families-of-
teens-molested-by-former-wrestling-coach/
33
Ibid.
34
http://www.thegazette.com/subject/news/education/k-12-education/marion-school-district-settles-sexual-
abuse-lawsuits-filed-by-starry-elementary-parents-20171128
35
https://www.wsj.com/articles/a-look-at-sexual-harassment-and-assault-settlements-in-schools-1514386801
36
Hartford Roman Catholic Diocesan, Corp. v. Interstate Fire & Cas. Co., 199 F. Supp. 3d 559 (D. Conn. 2016)
37
http://www.recorder.com/Deerfield-Academy-settles-sexual-abuse-lawsuit-3837523
38
Though survivors of sexual abuse are in many cases eligible for restitution from general funds for crime victims,
these programs are not analogous. They are often capped at very low figures and do not take away a victim’s right
to sue a perpetrator. They also require that the perpetrator be convicted.