Civil Rape and Assault/Gender-Motivated Violence Cases

Defense of New York City’s Gender-motivated Violence Act Cases
[“civil Rape and Sexual Assault Cases”]

The Linden Law Group has experience in defending alleged perpetrators of civil rape and sexual assault cases. To date, we have not represented alleged victims of these crimes and have referred potential plaintiffs to other law firms with such experience. The following is a general overview of the law applicable to these cases.

2017 – Me Too Movement

The “Me Too” movement in the United States gained widespread attention in late 2017, but has its roots in the early 2000’s. Initially founded by Tarana Burke, a civil rights activist, the movement aimed to raise awareness of the prevalence of sexual assault and harassment, particularly in the workplace. Burke’s use of the phrase “Me Too” was intended to empower women through empathy and solidarity, especially within underprivileged and marginalized communities. The movement gained explosive momentum in 2017 when allegations against Hollywood producer Harvey Weinstein surfaced, leading numerous women to share their experiences of past sexual misconduct using the hashtag #MeToo. This prompted a global reckoning against sexual harassment and assault, with high-profile cases in various industries.

The Me Too movement’s impact led to renewed focus on legislative measures to protect women against violence and harassment. One significant legislative framework in this context was the Violence Against Women Act (“VAWA”), 42 USC 13981, first passed in 1994. VAWA was a landmark U.S. law aimed at addressing domestic violence, sexual assault, and stalking. It provided federal resources for preventing violence against women and aiding victims, established the Office on Violence Against Women within the Department of Justice, and enhanced judicial and law enforcement tools to combat violence against women.

2000 – the Morrison Decision

Then came the US Supreme Court’s decision in US v. Morrison, 529 US 598 [2000]. The Morrison Court struck down the federal civil rights remedy for gender-motivated crimes contained in the VAWA, finding the remedy an unconstitutional exercise of Congressional power.

However, this federal Act faced challenges in its reauthorization over the years. The reasons for these challenges were multifaceted, often rooted in political disagreements over the expansion of its provisions. For example, debates arose over extending protections to same-sex couples and provisions allowing non-Native Americans to be tried in tribal courts for crimes committed on tribal lands. Despite these challenges, the Act has been reauthorized multiple times, with amendments expanding its scope. The Act has evolved, reflecting the ongoing dialogue about how best to protect and support victims of violence and abuse in the U.S.

2000 – New York City’s Enactment of the Gender-Motivated Violence Act (“VGM”)

In response to the Morrison decision, in 2000, the New York City Council passed the Victims of Gender-Motivated Violence Protection Law (VGM). The VGM, as did its federal predecessor, provides a civil cause of action for victims of crimes of violence “committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim’s gender” (NYC Admin Code §10-1103), and allows a victim of such a gender-based violent crime to collect money damages, punitive damages and attorney’s fees from the perpetrator.

The statute redresses a “crime of violence, if the conduct presents a serious risk of physical injury to another, whether or not those acts have actually resulted in criminal charges, prosecution, or conviction.” (NYC Admin Code §10-1104).

But prior to the Breest case below, case law generally held that “not all rapes” are crimes of violence that satisfy the statute. A plaintiff needed to allege other evidence of animus to the victim’s gender like abusive or insulting language during the act, or evidence of prior sexual assault. In 2019, the New York Appellate Division, First Department did away with all that.

2019 - New York’s Breest case

In the seminal case, Breest v. Haggis, 180 A.D.3d 83 (1 Dept. 2019), the Appellate Division in New York settled the question of what it takes to merely plead a case under the VGM Act.

First, the Appellate Division’s decision recognized that the lower court (the Supreme Court of New York’s) decision was indeed consistent with state and federal trial court precedents that require such allegations of additional facts tending to show gender-based animus, even where the alleged offense is rape or sexual assault. Such additional facts could have been abusive language before, during or after a rape or sexual assault, and evidence of the past abuse of other victims.

In sum, the Appellate Division held that these additional allegations are not necessary to prove animus in alleged rape and sexual assault cases. It is enough to simply allege rape or sexual assault without more.

The Court held that rape and sexual assault show, by their very nature, ill will or malice towards someone because of their gender, and the allegation of their commission alone sufficiently pleads animus.

March 1, 2023 – Statute of Limitations Extended

Originally, the Statute of Limitations under the VGM statute was seven years. But this could have been extended for another seven years if the plaintiff could should an inability to sue within the first seven-year Statute of Limitations.

However, starting March 1, 2023, the statute of limitations for allegations under the VGM were extended for 2 years to allow alleged victims of rape and sexual assault a 2-year “lookback period” to bring a civil case that was previously time-barred. Alleged victims now have from March 1, 2023 to March 1, 2025 to begin a civil suit for damages under the statute. As such, plaintiffs cannot bring their claims that are decades old. Again, compensatory and punitive damages are available in addition to the plaintiff’s attorney’s fees if a successful case is proven.

The above temporary extension of the statute of limitations affects these statutory, civil rape and assault claims. As such ad in addition, plaintiffs can seek money damages for intentional or negligent infliction of emotional distress or physical injury. There are numerous classes of potential defendants: private individuals including public figures, former or current employers, schools and religious institutions.

Employers and Workplace Assaults

Incidentally, lest employers think they can sit back on their laurels and avoid liability for their employees’ workplace rape, sexual assault or sexual abuse, they should think again. The statute additionally provides liability as against those who “enable” such crimes.

An alleged victim suing may choose to sue a manager or employer on duty at the time of the alleged offense. Notably, the managing individual need not have had direct knowledge of or involvement in the alleged crime to be liable.

The Adult Survivor’s Act

Alongside New York City’s Act sits the New York’s Adult Survivor’s Act which gives alleged victims 1-year lookback period starting November 24, 2022 and endings November 23, 2023. This statute provides that 1-year period for alleged survivors of sexual assault occurring while were over 18 to file suit against their alleged perpetrators, as well as corporate entities that allegedly “enabled” the assault on its premises.

Non-Disclosure Agreement Nullification

To encourage victims to come forward and not be gagged, on December 7, 2022, President Joe Biden signed into law the “Speak Out Act.” This new law now retroactively invalidates non-disclosure agreements (“NDAs”) that were previously agreed to between litigants in sexual assault or abuse cases.

If you have been sued under these statute(s) in state or federal court in New York, feel free to call for a free initial phone consultation. We represent individuals in the Five Boroughs of New York (Manhattan, Kings, Queens, Bronx and Staten Island), as well as the nearby counties of Long Island (Nassau and Suffolk), Westchester, Rockland and Orange, and certain upstate counties as well. We normally practice in the New York federal districts of Southern and Eastern, and are admitted in the Western District as well.

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