Date22 December 2021
AuthorReilly, Marie T.

    Nearly all tort claims for child sexual abuse against Catholic organizations in litigation today involve abuse that occurred decades ago. 80.5% of incidents of clergy sexual abuse reported to Catholic dioceses before 2002 involved incidents that occurred before 1985. (1) For abuse reported after 2002, only 2.5% of incidents occurred between 2002 and 2019; and only 0.3% of incidents occurred between 2015 and 2019. (2)

    Observers have estimated that between 80 to 90% of child sexual abuse claims in the US appear to be time-barred under generally applicable limitations periods. (3) Advocates for claimants have persuaded some courts to apply the delayed discovery doctrine to provide limitations relief in child sex abuse cases. (4) And, they have persuaded legislatures to amend generally applicable tort limitations statutes to provide relief from the otherwise applicable time bar. (5)

    In 2019, New York and eight other states enacted retroactive legislation that revived certain otherwise time-barred child sexual abuse tort claims filed within a designated time period, known as claim revival window legislation. (6) The New York Child Victims' Act (NYCVA) opened a window during which child sexual abuse claimants could sue Catholic and other organizations free of a limitations defense (a claims revival window). (7) Between July 1, 2018 and June 30, 2019, the annual average number of tort claims against Catholic dioceses nationwide was three times the annual average over the previous five years. (8) In 2019, 4,220 persons reported 4,434 allegations of child sexual abuse against Catholic organizations, a 200% increase in reports from 2018. (9) Jeff Anderson & Associates, a law firm representing child sexual abuse plaintiffs nationwide, reported that as of August 3, 2020, it had filed 1,002 child sexual abuse cases against Catholic dioceses in New York. (10) As of February 2021, four of the eight Catholic dioceses in New York have filed for bankruptcy under chapter 11. (11)

    This article considers the evolution of limitations relief for time-barred child sexual abuse tort claims in New York culminating with the claims revival window enacted in 2019 as part of the NYCVA. (12) The story of child sexual abuse litigation against Catholic dioceses in New York and the legal and political history of the NYCVA exposes the important but largely unexplored balance of competing policy objectives that limitations laws strike. How child sexual abuse claimants achieved retribution by revival via the NYCVA reveals the fragility of limitations laws and the importance of coherent and consistent policy for revival of other types of time-barred claims.

    Part II explains organizations' tort liability for child sexual abuse and their limitations defenses under New York law. Part III considers how limitations laws balance plaintiffs' interest in compensation for injury against public interest in the reliability of litigated outcomes. Part IV explains the development of arguments for limitations relief specific to child sexual abuse claims. Part V explains how New York courts evaluated these arguments before the NYCVA opened a claims revival window. Part VI explains the legislative history and content of the NYCVA. Part VII offers a critique of claims revival window legislation for child sexual abuse tort claims, and Part VIII concludes.


    Under New York law, an employer of a perpetrator who abuses a child is not vicariously liable for injuries caused by the abuser if the abusive actions are outside the scope of employment. (13) New York courts have held that sexual abuse of a child committed by an employee priest is outside the scope of the priest's employment and thus a diocesan employer is not vicariously liable. (14) An employer can, however, be directly liable for injuries caused by an employee acting outside the scope of employment based on the employer's own negligence in hiring, retaining or supervising the employee. (15) To state a claim under New York law for negligent hiring or supervision, the plaintiff must allege a causal connection between the injury and the employment, and that the employer knew or should have known before the injury occurred of the employee's propensity for the conduct which caused the injury. (16)

    In a child sexual abuse case based on negligent supervision of a priest asserted against the Diocese of Brooklyn in 1997, the court held that the diocese had no common law duty to investigate a potential employee before hiring him unless the employer knew facts which would lead a reasonably prudent person to investigate the potential employee's history. (17) With respect to the plaintiff's allegation that the diocese negligently supervised the alleged perpetrator, the court declined to dismiss the plaintiff's claim because the plaintiff had alleged facts sufficient to support an inference that the diocese should have known of the perpetrator's propensity for sexual abuse of children. (18) The plaintiff alleged that the perpetrator made statements about his sexual behavior to other priests which, the court concluded, gave the diocese notice of the priest's propensity for abusive conduct. (19) In 2020, in considering child sexual abuse claims brought against the Diocese of Rockville-Centre under the NYCVA revival window, the New York Supreme Court held that an allegation that a diocese knew about clergy sexual abuse generally, absent allegations that a diocese had prior knowledge of the alleged abuser's propensity, was insufficient to support a claim for negligent supervision of a particular priest. (20)

    Catholic and other religious organizations have contended that the First Amendment bars litigation against the organization based on its negligent supervision of a clerical employee as a prohibited entanglement in religious doctrine. (21) For example, in 2002, in Malicki v. Doe (22,) the Florida Supreme Court rejected the Archdiocese of Miami's First Amendment entanglement defense. (23) The Florida Supreme Court held that tort liability "has a secular purpose" and its primary effect "neither advances nor inhibits religion." (24) Five years earlier, a panel of the New York Supreme Court rejected a similar defense by a Catholic diocese in a priest sexual abuse case. (25) Although legal commentators are divided on the issue, a majority of courts that have considered a religious autonomy defense in this context have rejected it. (26)


    The term 'statute of limitations' refers to any statute that bars litigation of a claim after a set interval of time after a cause of action accrues. (27) A claim on which the plaintiff fails to sue within the limitations period is subject to a complete defense on limitations grounds (the time-bar). (28) The time-bar creates an incentive for persons diligently to investigate and promptly sue on a claim. (29) And, it designates claims not asserted within the limitations period as inherently unworthy of the investment of judicial resources without regard to validity on the merits. (30) The United States Supreme Court has noted that statutes of limitations are not "a technical defense" but rather are "vital to the welfare of society and are favored in the law." (31) A New York court observed that statutes of limitations "are the result of legislative evaluation of a variety of considerations, not all of which are easily reconcilable." (32)

    In 1828, Justice Story observed that legislatures intend limitations statutes to "suppress fraud, by preventing fraudulent and unjust claims from starting up at great distances of time." (33) Story's observation, and the often-repeated statement that limitations laws bar claims "after memories have faded, witnesses have died or disappeared, and evidence has been lost," (34) reveals an enduring judicial intuition that time degrades the reliability of evidence and correspondingly, the reliability of litigated outcomes and the judicial system. (35) The US Supreme Court has noted that stale claims are inherently suspect on the merits. (36) Persons tend not to neglect suing on valid claims and the lapse of years without a suit on the claim "creates... a presumption against its original validity." (37)

    Limitations laws protect defendants from the burden of litigating claims based on time-degraded evidence because any outcome based on that evidence is inherently unreliable. (38) Potential defendants benefit from a stable and discernable endpoint to their potential liability.

    An endpoint to potential liability has a social value as well. (39) Without statutes of limitations, tort liability would persist from the time the cause of action accrues until the plaintiff releases it by agreement or dies, and after death by wrongful death or survivor actions. (40) The endpoint to liability that limitations laws provide facilitates the stability and value of relationships and investments made in reliance on it. (41) An endpoint to liability in the form of a limitations defense focuses investment in law enforcement and civil litigation on recent or current wrongdoing. Focusing on recent or current claims likely yields a higher social return than investment in redress of historic wrongdoing. (42)

    The incentive the time bar creates to sue promptly after an injury occurs protects the reliability of the legal system from the evidence-degrading effect of the passage of time, "when, by loss of evidence from death of some witnesses, and the imperfect recollection of others, or the destruction of documents, it might be impossible to establish the truth." (43) The limitations period sets the time after which a judicial outcome on the merits of the claim is likely to be less reliable than a random determination. (44)

    To prove a claim for negligence against a defendant responsible for a perpetrator of child sexual abuse, the plaintiff must show that that the defendant was on...

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