On May 13, 2019, New Jersey Governor Phil Murphy signed a bill into law to address the proliferation of sexual abuse and compensate its victims by allowing civil lawsuits to be filed despite the passage of years if not decades.
Previously, New Jersey allowed minor victims of sexual abuse only two years from the later of the date of their eighteenth birthday, or the date the victim learned of their injury and its casual relationship to the sexual misconduct, to file suit. The Act now allows child victims of childhood sexual abuse to file lawsuits up until the time they turn 55 years old, or seven years from the date they became aware of the abuse, whichever is later. It also allows adult victims of sexual abuse, whatever their age, to bring suit within seven years from the time of their discovery of the abuse. It also gives victims who were previously barred from filing claims, because the statute of limitations had lapsed, a two-year window to now file their claims. The effective date of the Act is December 1, 2019.
Importantly, the Act also now permits lawsuit against organizations that were historically immune from suit by amending the Charitable Immunity Act N.J.S.A 2A:53A-7 to expose nonprofit organizations to retroactive liability for willful, wanton or grossly negligent acts resulting in sex abuse. The Act also retroactively applies an exception to the Charitable Immunity Act so that nonprofit organizations can face liability for acts of simple negligence in the hiring, supervision or retention of an employee or agent that led to sexual abuse against a minor.
The Act also created an exception to the New Jersey Tort Claims Act N.J.S.A 59:1-1, stripping public entities of immunity from sexual abuse lawsuits, so that they can now be held liable as if they were private organizations. This means public schools, and not-for-profit private schools, will now find themselves named as defendants in sex abuse claims, in what is a striking departure from well-established New Jersey law.
Interestingly, the new law specifically allows a lawsuit to be commenced “within seven years from the date of reasonable discovery of the injury and its casual relationship to the Act. N.J.S.A. 2A:14-2. This will open the proverbial floodgates of sexual assault litigation.
Although the law does not take effect until December 1, 2019 this law firm is already representing defendants in several lawsuits filed because of this change in the law. The lawsuits have been filed in the U.S. District Court of New Jersey as well as New Jersey Superior Court in Hunterdon, Somerset and Middlesex Counties.
Individuals and non-profit entities will have to defend themselves against allegations that are many decades old. The reality is that it is very difficult to investigate and respond to allegations that could be 30 to 40 years old, and probably include non-specific time periods of abuse. Defense counsel will need to rely on private investigators to properly investigate these claims.
This drastic change in the law was the result of the #MeToo movement as well as other movements such as Time’s Up. In addition, the reported widespread sexual abuse by clergy associated with the Catholic Church propelled this change in the law. It is a sad fact that sexual harassment and abuse not only exist in one industry but occurs in many, such as Hollywood, music, sciences, academia, politics and religious organizations.
Individuals such as Harvey Weinstein (depicted in the documentary Untouchable), Jeffrey Epstein, Bill O’Reilly and Fox News founder and CEO Roger Ailes have dominated the sexual abuse headlines, with Ailes being the subject of a Showtime series, The Loudest Voice, and the soon to be released movie Bombshell, featuring Nicole Kidman, Charlize Theron and Margot Robbie
Allegations of sexual abuse and harassment are unfortunately not new. During the recent confirmation of United States Supreme Court Justice Brett Kavanaugh, allegations emerged that he had attempted to sexually assault a woman 36 years ago when they were in high school. The allegations had never surfaced until Justice Kavanaugh was nominated. The hearings were a television spectacle. They weren’t the first; as Supreme Court Justice Clarence Thomas was also accused of sexual harassment during his confirmation hearing. Moreover, former President Bill Clinton was subjected to impeachment and a trial as a result of being accused of lying under oath and obstructing justice as a result of a sexual harassment lawsuit. Now that the law has been changed, the reality is that many unknown people will be filing lawsuits both in State and Federal Court, alleging sexual abuse, assault or harassment. It is anticipated that the Courts in New Jersey will be deluged with sexual assault lawsuits. Most of these will not attract media attention like that of former Cardinal Theodore McCarrick, who was the subject of a NJ.com article on September 3, 2019. McCarrick was laicized, or dismissed from the clergy, for decades of sexual abuse.
It is important to note that just because someone is accused or the subject of a lawsuit, does not make them guilty or liable. They still deserve to be treated fairly by the courts and properly represented and defended.
While the #MeToo movement has gained immense support and global acceptance, it has been criticized by many women and feminists as a witch-hunt that has gone too far. It has been suggested that it has created an atmosphere, in which, contrary to our law, the accused are presumed guilty until proven innocent.
Ultimately, each civil case will be resolved on its merits. Juries shall decide if an accuser is entitled to compensation. In addition, courts will have to decide the statute of limitations issues that will surely arise, including whether these new laws are constitutional. Can a plaintiff, who is aware they were abused 20-30 or more years ago, survive the legal test of demonstrating that they just realized the casual relationship of their injuries to the alleged sexual abuse. This is especially true when the sexual abuse act itself was reported to law enforcement, non-profit organizations, e.g. Catholic Church, the accused or their family and friends, many years before the lawsuit was filed.
Unfortunately for these individuals accused, if a Church or other organization is involved, they will not provide legal counsel for the accused. People who are sued will need to retain their own attorney, which can be an expensive proposition.
Clearly, victims of sexual abuse deserve compensation. But we cannot create a climate in which people can be presumed guilty. While many deserving victims will now be allowed their day in Court, unfortunately people will be falsely accused for a variety of reasons. Individuals have been fined or suspended from their job simply because they were accused of sexual abuse. An example is the Reverend Roy Herbergen who was suspended by the Catholic Diocese of Buffalo and then reinstated. His case was the recent subject of an article in The Buffalo News published September 3 and updated September 4, 2019.
Our law firm has extensive experience defending individuals accused in both criminal and civil courts and stands ready to assist those accused. We remind people that simply being accused does not equate with being guilty or liable.