My children are young enough that Elmo’s voice still carries considerable weight in our home, and so I was disheartened to hear last week’s allegations that Kevin Clash, Elmo’s creator and voice, had a sexual relationship with a teenager. The alleged victim recanted — perhaps in exchange for a settlement, the reports I’ve seen have been unclear — but the issue resurfaced yesterday with the filing of a lawsuit against Kevin Clash in New York by a second alleged victim. The New York Times has a copy of the complaint; the new alleged victim, now 24 years old, claims Clash trolled sex chat lines for teenagers, found the victim, and then engaged in a sexual relationship with him while he was only 15 years old.
I, of course, don’t know if the allegations are true or not, but I do know that the case has a big problem in terms of whether it’s likely to succeed: the statute of limitations in New York has already expired for all of the usual claims alleged in sexual abuse cases. Apparently in recognition of that, his lawyers have not raised any of the typical state tort law sexual abuse claims — for example, assault and intentional infliction of emotional distress — but have instead filed for damages under a federal criminal statute most commonly used for child pornography victims. More on that in a moment.
As I discussed back when Jerry Sandusky was indicted, it is common — and understandable — for childhood sexual abuse victims to only be able to come forward many years after the abuse occurred, and thus often after the statute of limitations has run. In most states, including New York, the statute of limitations for tort claims is “tolled” (i.e., the clock doesn’t start running) until the victim turns 18 years old, but thereafter the victim only has a few years in which to file their civil claim. Few people turn 18 and suddenly come to terms with a traumatic event — the first few years in adulthood often isn’t enough time for a victim to process what has happened, and many victims repress memories about the assaults until their 30s, sometimes even later — and thus many victims never really have a chance to prove their case in court.
New York’s general statute of limitations for personal injury cases is three years, and New York law has not been kind to sexual abuse victims who failed to file a lawsuit within three years of their 18th birthday. In Zumpano v. Quinn, 6 N.Y.3d 666 (2006), former parishioners of two Catholic dioceses claimed they were sexually abused by priests but didn’t file a lawsuit until more than 20 years after they reached adulthood. The New York Court of Appeals ruled that the abuse was sufficient to trigger the statute of limitations for claims against both the priests and the dioceses that employed them, and so the statute ran three years after they turned 18 years old.
That’s the rule in the majority of states: the statute of limitations for childhood sexual abuse cases begins running right when the victim turns 18 years old. There are some exceptions — like the discovery rule, or tolling for fraudulent concealment — but they’re usually quite limited, and they’re often only applicable to the claims against the abuser’s employer. Earlier this year, for example, in the Poly Prep School Abuse case, a federal judge in New York allowed plaintiffs to move forward on their negligence and other claims related to abuse, on the theory that the school had allegedly “fraudulently concealed” their awareness of the abuser’s danger to the children. (Here’s the court order, which is a must-read for anyone interested in statute of limitations issues in sexual abuse cases, and here’s a New York Times story on the order.)
But I don’t see how Clash’s alleged victim could apply any of that court’s reasoning, which rests on the theory that the victim may not have had access to evidence showing the liability of the abuser’s employer, to his case; indeed, it seems his lawyers already concluded that his state tort claims were long gone, and so didn’t even attempt to allege any of the normal claims relating to sexual abuse. Instead, the alleged victim raises one and only one claim: “coercion and enticement to sexual activity in violation of 18 U.S.C. § 2422.” Here’s the statute itself. It reads, in relevant part:
(a) Whoever knowingly persuades, induces, entices, or coerces any individual to travel in interstate or foreign commerce, or in any Territory or Possession of the United States, to engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.
The statute is a criminal statute commonly used to prosecute sex offenders. 18 U.S.C. § 2255 permits victims of that statute (and a number of other sex crimes related statutes) to file a civil claim for damages:
(a) In general. Any person who, while a minor, was a victim of a violation of section … 2422 … and who suffers personal injury as a result of such violation, regardless of whether the injury occurred while such person was a minor, may sue in any appropriate United States District Court and shall recover the actual damages such person sustains and the cost of the suit, including a reasonable attorney’s fee. Any person as described in the preceding sentence shall be deemed to have sustained damages of no less than $ 150,000 in value.
Use of 18 U.S.C. § 2255, sometimes called “Masha’s Law,” by sexual assault victims has been rapidly growing over the past few years. Earlier this year, for example, a federal court in Miami held that the law could be used to hold a cruise line strictly liable for a crew member’s sexual assault of a 17-year-old passenger. Doe v. Royal Caribbean Cruises, Ltd., 860 F. Supp. 2d 1337, 1342 (S.D. Fla. 2012).
The statute has attracted a lot of interest lately, largely through three cases. The “Amy” and “Vicky” lawsuits — both involving victims of child pornography whose images were spread widely on the Internet — have raised a number of issues about the restitution laws, including whether those victims can recover more than once for the same damages against multiple defendants convicted of possessing their images. In another case involving the statute, the Boland case, a criminal defense lawyer was successfully prosecuted then sued by the victims for creating “virtual” child pornography (i.e., putting children’s faces on pornographic images) as part of his defense of a client charged with possession of virtual child pornography. (For what it’s worth, I agree with Jonathan Turley that the prosecution of a lawyer for actions legitimately taken in court in defense of his client raises a number of disturbing First and Sixth Amendment problems, all of which were dismissed by the courts.)
But there’s still a problem with the claim brought by Clash’s alleged victim: it may also be barred by the statute of limitations. As 18 U.S.C. § 2255(b) says:
(b) Statute of limitations. Any action commenced under this section shall be barred unless the complaint is filed within six years after the right of action first accrues or in the case of a person under a legal disability, not later than three years after the disability.
In other words, as described by James Marsh, one of the pioneers of these claims (he’s the lawyer for “Amy”):
For most child victims, lawsuits under Masha’s Law should be brought on or before their twenty-first birthday for personal injuries which occur before they turn age sixteen utilizing the three year statute of limitations. Under the six year statute of limitations, sixteen year olds who are injured by child pornography or sexual exploitation have until they turn age twenty-three to bring suit, and seventeen year-olds have until they turn age twenty-four.
Marsh, Restitution for Victims of Child Pornography, 61 Syracuse L. Rev. 459 (2011). Clash’s alleged victim alleges the abuse took place when he was fifteen and thereafter “over a period of years,” which could mean anything. Even if the abuse continued while he was 17, the statute of limitations would have run on his 24th birthday, prior to the lawsuit.
Thus, it seems the alleged victim’s lawyers are hoping that the federal statute of limitations for sexual abuse compensation will be more friendly towards sexual abuse plaintiffs than New York law, which is plausible. See, e.g., Smith v. Husband, 376 F. Supp. 2d 603, 613 (E.D. Va. 2005)(accepting “continuing violation doctrine,” but noting “under general principles of federal law, a plaintiff’s cause of action first accrues when she possesses sufficient facts about the harm done to her that a reasonable inquiry would reveal the cause of action”). The complaint alleges the alleged victim “did not become aware of his injuries” until 2012, alleging, I presume, a repressed memory theory. That probably wouldn’t work in New York state courts, but the issue hasn’t been decided under federal law, as far as I know.
Will that sort of “repressed memory” claim work under federal law? It’s hard to say, though I have my doubts. The federal courts are generally not favorably towards civil plaintiffs of any type. Personally, I have long believed that statute of limitations in general are too short — it can take years for people to return to any type of a normal life after a tragedy and begin investigating a lawsuit — and I think that molestation victims are even more susceptible to delays in bringing their claims. See, e.g., Summit, Abuse of the Child Sexual Abuse Accommodation Syndrome, in 1 J. of Child Sexual Abuse 153, 156-163 (1992); Lyon, Scientific Support for Expert Testimony on Child Sexual Abuse Accommodation, in Critical Issues in Child Sexual Abuse 107, 114-120 (J. Conte ed. 2002).
All in all, an interesting case to follow, and not just because of the identity of the defendant.