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Understanding Sexual Assault Lawsuits and their Statutes of Limitation in New York

Posted By Galluzzo and Johnson LLP || 19-Sep-2013

The deadline for a victim of a rape or sexual assault in New York to bring a civil lawsuit for damages against his or her attacker depends principally on three factors: 1) what exactly the attacker did to the victim, 2) whether a criminal action was commenced as a result of the attack, and 3) whether the victim was a juvenile at the time of the alleged assault.

Most lawsuits involving "intentional torts" against another individual, such as an assault, have a one-year statute of limitation, meaning that any such count in a civil lawsuit will be dismissed outright if it was not filed within one year of the date of the assault itself. However, there are three specific types of sexual assaults for which the statute of limitation is set at five years pursuant to New York CPLR § 213-c. That statute states:

§ 213-c. Action by victim of conduct constituting certain sexual offenses. Notwithstanding any other limitation set forth in this article, a civil claim or cause of action to recover from a defendant as hereinafter defined, for physical, psychological or other injury or condition suffered by a person as a result of acts by such defendant of rape in the first degree as defined in section 130.35 of the penal law, or criminal sexual act in the first degree as defined in section 130.50 of the penal law, or aggravated sexual abuse in the first degree as defined in section 130.70 of the penal law, or course of sexual conduct against a child in the first degree as defined in section 130.75 of the penal law may be brought within five years. As used in this section, the term “defendant” shall mean only a person who commits the acts described in this section or who, in a criminal proceeding, could be charged with criminal liability for the commission of such acts pursuant to section 20.00 of the penal law and shall not apply to any related civil claim or cause of action arising from such acts. Nothing in this section shall be construed to require that a criminal charge be brought or a criminal conviction be obtained as a condition of bringing a civil cause of action or receiving a civil judgment pursuant to this section or be construed to require that any of the rules governing a criminal proceeding be applicable to any such civil action.

Thus, the statutes that relates to the deadline for filing rape or sexual assault lawsuits refers to the criminal codes - the New York Penal Law - to define the types of acts for which the five year special deadline applies. First, CPLR § 213-c refers to Rape in the First Degree as defined in Penal Law Section 130.35. Penal Law 130.35 makes it a crime for a person to engage in sexual intercourse with another person: 1) by forcible compulsion; or 2) who is incapable of consent by reason of being physically helpless; or 3) who is less than eleven years old; or 4) who is less than thirteen years old and the actor is eighteen years old or more. Please note that the term "sexual intercourse" as it is currently defined includes only vaginal intercourse; subsection 1 thus requires that it be proven that the penis penetrated the vagina. Also, Physical helplessness is defined in Penal Law Section 130.00(7) as the state of being "unconscious" or "physically unable to communicate unwillingness to [] act."

Penal Law Section 130.50 instructs that a person is guilty of Criminal Sexual Act in the First Degree when he or she "engages in oral sexual conduct or anal sexual conduct with another person: 1) by forcible compulsion; or 2) who is incapable of consent by reason of being physically helpless; or 3) who is less than eleven years old; or 4) who is less than thirteen years old and the actor is eighteen years old or more."

Penal Law Section 130.00(2) defines "oral sexual conduct" as "conduct between persons consisting of contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina," and "anal sexual conduct" as "conduct between persons consisting of contact between the penis and anus."

(Author's Note: Recently, there have been lobbying efforts in the New York State Assembly to change the definition of "rape" in the Penal Law to include forcible oral sexual conduct and forcible anal sexual conduct; such conduct is currently called a "Criminal Sexual Act" instead of rape, and many victims do not feel that that term adequately conveys the seriousness of the violation. We would not be surprised if this sort of legislation eventually passes, and generally think that it is a good idea, though we would point out that all of these acts are presently equally serious per the Penal Law - they are all Class B violent felonies.)

Penal Law Section 130.70 makes it a Class B felony to "insert[] a foreign object in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person (a) by forcible compulsion; or (b) when the other person is incapable of consent by reason of being physically helpless; or (c) when the other person is less than eleven years old." This crime is called Aggravated Sexual Abuse in the First Degree, and there is an obvious exception for conduct performed for a valid medical purpose. Penal Law § 130.70(2).

Lastly, Penal Law Section 130.75 states that a person is guilty of Course of Sexual Conduct Against a Child in the First Degree when, over a period of time not less than three months in duration, (a) he or she engages in two or more acts of sexual conduct, which includes at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact, with a child less than eleven years old; or (b) he or she, being eighteen years old or more, engages in two or more acts of sexual conduct, which include at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child less than thirteen years old.

In sum, if a victim can allege that he or she was the victim of one of the crimes described above, then he can sue his attacker within five years of the date of the crime. Notably, it remains unclear whether one would have a five-year statute of limitation to sue if one had been a victim of an "attempt" at one of these crimes, as defined by Penal Law Section 110.00.

However, those deadlines can be extended even further in some cases. For example, CPLR Section 215(8) provides that (a) "[w]henever it is shown that a criminal action against the same defendant has been commenced with respect to the event or occurrence from which a claim governed by this section arises, the plaintiff shall have at least one year from the termination of the criminal action as defined in section 1.20 of the criminal procedure law in which to commence the civil action, notwithstanding that the time in which to commence such action has already expired or has less than a year remaining, and (b) [w]henever it is shown that a criminal action against the same defendant has been commenced with respect to the event or occurrence from which a claim governed by this section arises, and such criminal action is for rape in the first degree as defined in section 130.35 of the penal law, or criminal sexual act in the first degree as defined in section 130.50 of the penal law, or aggravated sexual abuse in the first degree as defined in section 130.70 of the penal law, or course of sexual conduct against a child in the first degree as defined in section 130.75 of the penal law [the same charges listed in CPLR 213-c]m the plaintiff shall have at least five years from the termination of the criminal action as defined in section 1.20 of the criminal procedure law in which to commence the civil action, notwithstanding that the time in which to commence such action has already expired or has less than a year remaining."

Thus, the commencement of a criminal action against the perpetrator can extend the deadline for filing a civil lawsuit, even if the criminal action is eventually dismissed or the defendant is acquitted. Tactically, we think it is better for a victim to wait to file his or her lawsuit after any criminal procedure is completed, for a variety of reasons that we explored in a previous post. The bottom line, though, is that if the criminal statute of limitation has not expired for an unreported criminal sexual act, then a victim could conceivably file a civil lawsuit for a very old sexual assault so long as they are able to persuade police or prosecutors to initiate a criminal prosecution against his or her attacker.

In the event that a defendant is arrested and ultimately convicted of a sexual assault, the deadline for the victim to file a subsequent lawsuit is extended even further. Specifically, CPLR Section 214-b states in part: "an action by a crime victim... may be commenced to recover damages from a defendant (1) convicted of a crime which is the subject of such action, for any injury or loss resulting therefrom within seven years of the date of the crime...within ten years of the date the defendant was convicted of such specified crime." Notably, there is a limitation upon the scope of the damages for which a plaintiff can recover under this approach - for example, psychological or physical damages suffered in the eighth year after the date of the crime would not be compensable in the action.

Finally, if the victim that intends to bring the lawsuit for one of above-described sexual assaults described in CPLR 213-c was a juvenile (under the age of 18) at the time that he or she was assaulted, then the five-year statute of limitations period does not start running until the victim turns 18 (put another way, a juvenile victim of certain types of sexual assault can bring the lawsuit anytime before his or her 23rd birthday). See e.g. Cordero v. Epstein, 869 N.Y.S.2d 725 (Sup. Ct. N. Y. County 2008).

If you or a loved one are in need of a lawyer to assist you with a civil lawsuit involving allegations of rape or sexual assault, you should strongly consider contacting the experienced former prosecutors at Galluzzo & Johnson LLP for a free consultation. In particular, one of their attorneys, Matthew Galluzzo, was a prosecutor in the famed Sex Crimes Unit of the New York County (Manhattan) District Attorney's Office and now regularly represents people involved in criminal and civil cases involving allegations of rape and sexual assault.

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