WHAT IS A STATUTE OF LIMITATIONS?
The statute of limitations for a crime determines the amount of time a person has to pursue legal action(s) against the person(s) or entity that caused them harm. There are criminal statutes of limitations, which apply for someone who wants to access the criminal justice system. The criminal justice system holds a person who caused harm accountable to the state.
There are also civil statutes of limitations, for those who want to access the civil system. The civil system typically results in monetary awards and holds a person who caused harm accountable to the person who was harmed.
Survivors of sexual assault can choose to pursue the criminal system, civil system, both systems, or neither system.
WHAT HAPPENED TO NEW JERSEY’S CIVIL STATUTE OF LIMITATIONS?
On May 13, 2019, N.J. Governor Phil Murphy signed S477/A3648 and permanently expanded the Garden State’s civil statute of limitations for sexual assault. This means more survivors of sexual violence in N.J. have the option to access the civil justice system than ever before in our state’s history.
Prior to the reform of N.J.’s civil statute of limitations, survivors of sexual assault had a limited timeframe of two years to seek justice through civil litigation (or, for survivors of sexual abuse during their childhood, two years after age 18).
Under the new, extended statute of limitations, all victims of sexual assault have seven years to pursue civil action against the person who harmed them. Adult survivors of childhood sexual abuse have until age of 55 to bring a civil case, or seven years from the time that they became aware that their trauma is linked with financial harm (a process called “discovery”). The law also creates a one-time, two-year lookback window that allows survivors to bring lawsuits that were time-barred under the previous statute of limitations. The window will take effect on December 1, 2019 and run until December 2021.
The first steps to filing a civil lawsuit include determining who to sue, which claims to bring, and what court has jurisdiction to hear your case.
HOW CAN I FILE A CIVIL LAWSUIT AGAINST THE PERSON WHO HARMED ME?
Consulting with a qualified lawyer can help you navigate the challenges presented by litigation. For free referrals to attorneys for consultation, you can call the National Crime Victim Bar Association at (844) LAW-HELP or fill out a questionnaire through their website. For information about low-cost or pro bono civil legal assistance, you can also contact your local legal services program.
Once you’ve consulted with and retained legal representation, they can help you decide which claims to bring against the defendant(s). The defendant, or the party you choose to sue, can be any individual or institution directly or indirectly involved in causing harm to you. The harm you experienced can be addressed by several different types of claims in a civil lawsuit.
Examples of possible legal theories under which you can sue include the following:
- Assault: an attempt or threat of violence. This does not require actual physical contact and is usually combined with battery.
- Battery: intentional harmful or offensive physical contact that occurs without your permission.
- False Imprisonment: intentional restriction of someone’s ability to move freely.
- Intentional Infliction of Emotional Distress: acts done with the intent to cause severe emotional distress.1
After deciding which claims to bring, you can select a court that has jurisdiction to hear and decide the dispute between yourself and the defendant. In most circumstances, the state court of the county where the defendant lives or where the sexual assault occurred will hear your civil suit. You can find a list of New Jersey county courts here. The U.S. District Court for the District of New Jersey will hear your case if it contains a federal claim or if diversity jurisdiction applies.
When you have determined who to sue, which claims to bring, and where your case will be heard, you can move forward with filing a lawsuit. Your lawyer will help you file a complaint, which is a legal document that identifies the parties involved in the case, states your claims and the facts of the case, and outlines the legal remedies that you want the court to provide. The court will attach a summons to the complaint and serve both to the defendant.
After the defendant answers the complaint, the discovery period will begin. Discovery is the process for gathering relevant information for the case prior to trial. The following three types of evidence are collected during discovery:
- Depositions: a written record of oral testimony of witnesses or parties examined out of court
- Interrogatories: a list of questions from one party that must be answered in writing by another party
- Documents or other materials
If a settlement is not reached, then the case proceeds to trial. In a civil trial, the judge or jury determines whether the defendant is liable using the preponderance of the evidence evidentiary standard. Under this standard, the plaintiff must prove that there is a greater than 50 percent chance that their claims are true. If the plaintiff wins, the judge or jury awards damages and the case is closed unless the defendant appeals.
For more information on how to navigate the civil justice system, see the Washington Coalition of Sexual Assault Programs’ “A Survivor’s Guide to Filing a Civil Lawsuit,” the National Crime Victim Bar Association’s “Civil Justice for Victims of Crime in New Jersey,” and FindLaw’s online guide to filing a lawsuit.
HOW DOES THE TWO-YEAR WINDOW WORK?
In addition to claims that were never filed, any civil action that was previously dismissed on the grounds that the statute of limitations had expired will be revived for a period of two years following the effective date of December 1, 2019.
In states with similar legislation, the window has allowed survivors to seek justice and publicly identify serial perpetrators of sexual abuse:
- In Delaware, a two-year civil window provided 1,175 victims with the opportunity to pursue justice against their perpetrator – nearly 1,000 were victimized by the same person;2
- In California, a one-year civil window resulted in nearly 1,000 cases;3
- In Minnesota, a three-year civil window allowed 1,000 survivors to come forward.4
whAT IS THE DIFFERENCE BETWEEN CRIMINAL AND CIVIL SUITS? WHY DO SURVIVORS CHOOSE THE CIVIL JUSTICE SYSTEM?
No two survivors of sexual violence want the exact same thing when it comes to pursuing justice. For some, pursuing a criminal case – in which the defendant is held accountable to the state and can be found guilty of a criminal act – will result in a feeling of justice. For others, pursuing a civil case – in which the defendant is held accountable to the victim for harm caused – will bring a sense of healing and resolution. Civil litigation also allows survivors to seek non-economic damages from the perpetrators or institutions that failed to keep them safe.
There is no statute of limitations for criminal cases of sexual assault in New Jersey. This means that survivors of sexual violence can bring a criminal case against the person who harmed them at any point in time.
WHY WAS CHANGING THE CIVIL STATUTE IMPORTANT?
Best research on the impact of trauma highlights how common delayed reporting is for survivors of sexual violence. One national study of female adult survivors of child sexual abuse found that nearly half did not disclose the abuse to anyone for over five years.5 Another study using data from a sexual assault hotline found the average age of callers reporting child sexual abuse was 52 years old.6 Research demonstrates that adult survivors of sexual violence also often delay reporting.7
Sexual assault takes a financial toll on survivors. A 2017 CDC study found that the lifetime cost for sexual violence is $122,461 per victim.8 Research further shows that victimization in adolescence can lead to reduced income in adulthood, with an estimated lifetime income loss of $241,600 for survivors of sexual abuse during adolescence.9
By extending the civil statute of limitations for sexual assault, New Jersey recognizes this reality of delayed reporting and maximizes opportunities for all victims to pursue justice and seek compensation for the financial impacts of sexual assault.
1. Definitions adapted from the Washington Coalition of Sexual Assault Programs’ “A Survivor’s Guide to Filing a Civil Lawsuit”
2. Hamilton, M. (2018). Child sex abuse statute of limitations reform in the wake of the Boston archdiocese clergy abuse scandal. Child USA.
3. Hamilton, M. (2007). A ‘window’ for victims of abuse. Los Angeles Times, July 19 2007. Retrieved from http://articles.latimes.com/2007/jul/19/opinion/oe-hamilton19
4. Hamilton, M. (2018). Child sex abuse statute of limitations reform in the wake of the boston archdiocese clergy abuse scandal. Child USA
5. Smith, D., Letourneau, E., Saunders, B., Kilpatrick, D., Resnick H., & Best, C. (2000). Delay in disclosure of childhood rape: results from a national survey. Journal of Child Abuse & Neglect, Vol. 24, Issue 2 – February 2000. Pp.273 – 287.
6. Spröber, N., Schneider, T., Rassenhofer, M., Seitz, A., Liebhardt, H., & König, L. (2014). Child sexual abuse in religiously affiliated and secular institutions: a retrospective descriptive analysis of data provided by victims in a government-sponsored reappraisal program in Germany. JM – BMC Public Health – March 27, 2014; 14 ; 282.
7. Archambault, J., & Lonsway, K.A. (2019). Dynamics of sexual assault: What does sexual assault really look like? End Violence Against Women International.
8. Peterson, C., DeGue, S., Florence, C., & Lokey, C. N. (2017). Lifetime economic burden of rape among U.S. adults. American Journal of Preventive Medicine, 52, 691-701. Retrieved from https://www.ajpmonline.org/article/S0749-3797(16)30615-8/pdf
9. MacMillan, R. (2000). Adolescent victimization and income deficits in adulthood: Rethinking the costs of criminal violence from a life-course perspective. Criminology, 38, 553-588. doi:10.1111/j.1745-9125.2000.tb00899.x