NBC10 News: Gawthrop Greenwood Attorney John Rafferty Discusses Major Changes in Local Child Sex Abuse Laws

Days after sweeping changes in child sex abuse laws in both Pennsylvania and Delaware, Gawthrop Greenwood attorney John Rafferty explained the changes on the public affairs show “NBC10 News @Issue” with interviewer Rosemary Connors. Their discussion is based on the article below.

By John Rafferty — Survivors of sexual abuse face the daily challenge of affirming their identity apart from the pain they have suffered, while simultaneously discovering people and resources that contribute to their healing. If this isn’t hard enough, survivors who seek justice in our nation’s courts face barriers to the courtroom that no longer correspond to our understanding of responses to trauma. The most significant legal barrier a survivor faces is her state’s statute of limitations, which governs the timeframe in which victims of any injustice must bring a claim for redress of the harm suffered. Recognizing that survivors of sexual abuse face special challenges that are ignored by these strict time limits, New Jersey recently announced a special 24-month window designed to give survivors who would otherwise be excluded as “too late,” a unique opportunity to have their claims – and their voices – heard. This special window began in New Jersey on Sunday, December 1, 2019.

Why Have Statutes of Limitations at All?

Statutes of limitations create some level of certainty in many transactions, without which it would be difficult to plan for the future. If you negligently struck a pedestrian while driving, the pedestrian’s time window to bring a claim against you would be governed by the state’s statute of limitations for negligence claims. If the pedestrian had the rest of his life in which to file a suit, you might make very different life decisions, never knowing when you might be served with a civil action. Instead, the governing statute of limitations requires the injured party to file a suit inside a certain window from the date of injury, which in most U.S. states, depending on the claim, is anywhere from two to five years.

Which States Have Extended the Statute of Limitations?

Some state legislatures have realized, however, that just as not all injuries are the same, not all victims respond in the timeline we might expect. So although adults are subject to strict statutes of limitations for suing a perpetrator of sexual assault, children in nearly every state are afforded extra time for filing civil actions regarding childhood sexual abuse – with a clock that generally starts ticking on their 18^th birthday. In a world in which research demonstrates that the process of identifying and recovering from sexual assault may not even begin for 25 years,[1] it makes sense that archaic notions that survivors would simply speak up when others think they should are slowly slipping away. In a nation in which only 16% of men with documented histories of childhood sexual abuse consider themselves to have been sexually abused,[2] it’s no wonder that lawmakers around the country are expanding how long the clock ticks for men and women who often require decades to identify, process and overcome the abuse they suffered as children.

Alaska, Delaware and Utah are, by any measure, strange bedfellows. And yet, as late as 2018, these three states led the effort to provide access to justice for survivors who endured sexual abuse as children, by removing all time-limits on civil actions related to their abuse. By late 2019, the cracks these state laws caused in the barriers depriving survivors access to courtrooms have spread, further elevating the voices of survivors in their pursuit of justice.

The first major crack of 2019 came in February, when New York extended its statute of limitations for survivors of sexual abuse from age 23 to age 55, and created a special one-year window for survivors, regardless of their age.[3] Two months later, in April, Washington State eliminated its statute of limitations in criminal cases (but not civil claims) for survivors of childhood sexual assault.[4] In October of 2019, California joined New York and Washington by not only raising its statute of limitations by 14 years, but also by creating a special three-year window in which survivors of all ages can file civil suits against their attackers.[5]

What Makes New Jersey’s Approach Unique?

In May of 2019, New Jersey adopted a law increasing access to the courts, that, outside of Alaska, Delaware and Utah, provides survivors of childhood sexual abuse the most comprehensive civil remedies available.[6] Besides increasing the statute of limitations to 55 years old, New Jersey wrote into its law the additional opportunity for a survivor to file a civil action after 55, if due to “mental state, physical or mental disability, duress or any other equitable grounds,” the survivor had not yet discovered a relationship between her cognitive injuries and the childhood sexual abuse she suffered.[7] In addition to extending its statute of limitations to comport with a more modern understanding of cognitive function, the New Jersey law also permits survivors aged 16 years or younger to testify via closed circuit television, if the judge determines that being made to testify in open court creates a substantial likelihood that the survivor would suffer severe emotional or mental distress.[8]

Damages available under the New Jersey law not only include the potential to recover attorneys’ fees, but also include (and are not limited to) damages for pain and suffering, medical expenses, emotional trauma, diminished childhood, diminished enjoyment of life, costs of counseling and lost wages.[9] Though such a comprehensive list of potential damages is rarely codified, it is encouraging that New Jersey lawmakers recognize that the consequences faced by survivors are unique – and may require a broad range of solutions.

Like its counterparts in New York and California, the New Jersey law also creates a 24-month window of opportunity for survivors who were shut out by its prior and more restrictive statute of limitations, during which survivors may initiate civil claims seeking one or more of the categories of damage noted above. After breaking down the barriers to its courtrooms this past spring, the Garden State’s 24-month window during which survivors may bring claims began December 1, 2019. Healing from the wounds inflicted by sexual trauma in childhood is difficult enough. Survivors and advocates alike praise the efforts of lawmakers in New Jersey, who have removed barriers to justice for the most broken in our society – and in doing so, have become a beacon to other states seeking to give survivors a voice in the courtroom.

Where is Pennsylvania Headed?

Until recently in Pennsylvania, survivors of childhood sexual abuse had only until age 30 to bring a civil action. In late November 2019, Governor Wolf signed into law three bills that collectively eliminate the statute of limitations for criminal charges stemming from child sexual abuse, extend the civil statute of limitations to age 55, and create a fund for survivors to receive counseling. Before Pennsylvania sees a two-year window similar to New Jersey’s, (it would enable survivors older than 55 to file civil claims), legislators will have to amend the state Constitution, then send the question to voters via a ballot-referendum in 2021. Do survivors have a friend in Pennsylvania? Only time will tell.

While he served as a prosecutor in the Child Abuse Unit of the Chester County District Attorneys’ Office, John Rafferty protected children who experienced sexual trauma. As a civil litigator at Gawthrop Greenwood, PC in West Chester, PA, John and the firm’s Litigation Department help adults recover damages for the traumas they experienced as children. He can be reached at jrafferty@gawthrop.com or 610-696-8225.

[1] National Alliance to End Sexual Violence, http://www.endsexualviolence.org/resources/for-survivors

[2] Accuracy of Adult Recollections of Childhood Victimization: Part 2. Childhood Sexual Abuse. Cathy Widom and Suzanne Morris. (1997)

[3] NY Gives Sex Abuse Victims More Time to Sue, Press Charges, https://www.usnews.com/news/best-states/new-york/articles/2019-02-14/ny-gov-cuomo-expected-to-sign-child-victims-act-into-law

[4] Washington state passes law extending statute of limitations for victims of sexual violence, https://thinkprogress.org/washington-state-passes-law-extending-statute-of-limitations-for-victims-of-sexual-violence-49d88db6a08e/

[5] California expands statute of limitations for child sexual abuse victims https://www.marketwatch.com/story/california-expands-statute-of-limitations-for-child-sexual-abuse-victims-2019-10-14

[6] Murphy Signs Sexual Misconduct Bills; Legislature Acts on Restorative Justice and PILOT Revenue https://www.njsba.org/news-publications/school-board-notes/may-14-2019-vol-xlii-no-40/murphy-signs-sexual-misconduct-bills-legislature-acts-on-restorative-justice-and-a-bill-to-share-pilot-revenue-with-districts/

[7] N.J.S. 2A:14-2

[8] N.J.S. 2A:61B-1(e)(2)

[9] N.J.S. 2A:61B-1