Opinion: Fixing the double standard that silences survivors of sexual abuse in prison

If you are a survivor of sexual abuse by a staff member in a New York prison, you have to jump through more legal hoops to bring a lawsuit than if your sexual abuse occurred elsewhere. That’s not right, and we have a bill to correct this unfair discrepancy. The problem is that lawsuits against New York state must be filed in a special court – the Court of Claims – which requires survivors to provide the precise time, date and specific location of their abuse. This extra legal burden is even more difficult if your claim involves a traumatic experience or incidents that occurred many years ago. 

Unfortunately, the state Court of Appeals recently upheld this double standard, dismissing a case involving a survivor who was assaulted for over four years at the Empire State Plaza. While this was not a prison-related case, the same rule applies to those suing over sexual assaults in a prison. The state Legislature must fix this loophole that puts people abused on state land or property or at the hands of a state employee at an unjust disadvantage compared to those who were not. 

Many victims who sued the state under the Child Victims Act may now have their cases dismissed because of the unreasonable standards required in the Court of Claims. Under the Child Victims Act, which we proudly voted for, adults who were sexually abused as children – who were previously ineligible due to the harsh statute of limitation requirement – were finally given a chance to sue their abusers. This was a meaningful step for many survivors on their pathway to healing. Now, the doors of justice will be shut on many survivors unless we act immediately to remedy that situation. 

Survivors of child sexual abuse and survivors who were sexually abused in adulthood often experience lifelong trauma, which can impair their ability to recall specific details about the traumatic event. Survivors of child sexual abuse are four times more likely to experience post-traumatic stress disorder in adulthood. Many develop dissociative amnesia and childhood autobiographical memory loss, which can repress memories of the event entirely until years later. Even E. Jean Carroll, who was sexually assaulted as an adult, couldn’t remember every detail about her experience. Although Carroll couldn’t remember the exact date that Donald Trump attacked her, a jury still found Trump liable for sexual assault based on her testimony. Every survivor should be afforded that same standard. The Court of Appeals ruling, and the loophole it upholds, defeats the intent of the legislature in passing laws like the Child Victims Act and the Adult Survivors Act. The requirements should not be so prohibitive that they are practically impossible to meet. 

This is why we introduced the Fair Access to Justice Act (A649/S844). The bill would increase the time someone in state custody has to file a civil claim for damages, from within 90 days of the incident to three years after release, with the clock starting on their release date. It also allows survivors to describe their abuse “to the best of the claimants knowledge and belief” without requiring them to specify dates and times – removing the same unfair legal standard the appellate court recently upheld. This vulnerable population is required to provide specific details of their abuse without adequate time to even process their experience, let alone gather the resources to file a notice of claim within the mandatory 90 days. This is a particularly acute issue for survivors abused in state prisons where sexual abuse is rampant and many are terrified to file a claim while still in the custody of their perpetrator.

The state Department of Corrections and Community Supervision receives hundreds of reports of sexual harassment and assault each year, a number that has steadily increased from year to year. Nevertheless, this is likely a huge undercount given all of the restrictions current law places on incarcerated individuals to report and file claims. Being incarcerated is traumatic in and of itself. It’s difficult to keep track of time; incarcerated individuals often have limited access to clocks, jails and prisons are purposefully built without natural light and the days can run together. Being sexually assaulted by a corrections officer who has significant power over you adds an additional layer of trauma that can be impossible to fully process. How can we expect these survivors to remember exactly when and where they were abused? And, since almost all of them are still in state custody within the 90 day time frame, how can we expect them to file a claim when doing so will likely expose them to further abuse and retaliation by their perpetrators? 

The Adult Survivors Act, which created a one-year lookback window for survivors who were over 18 at the time of their assault to sue their abusers regardless of when the abuse occurred, provided formerly incarcerated survivors a brief opportunity to seek justice. A whopping 1,553 cases were filed alleging sexual abuse by corrections officers in state prisons. Now that the Adult Survivors Act window is closed, the many victims currently in state custody or recently released have little to no options. 

So what can Albany do to address this?

We must pass the Fair Access to Justice Act, because incarcerated and formerly incarcerated New Yorkers who are sexually abused while in state custody deserve fair access to justice, and the state must be accountable for this abusive conduct. No survivor should be forced to recall exact dates and times of their abuse simply because it occurred on state property or in state custody. We will continue to work with our colleagues in the legislature to pass our bill this session and provide meaningful support to a population that is subjected to relentless abuse with little to no recourse.