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Understanding “Lookback Windows” for Childhood Sexual Abuse Civil Claims

Higher Education

Beginning December 1, 2019, New Jersey residents who are adult survivors of childhood sexual abuse will have two years to sue the alleged abuser or the institution where the alleged abuser worked. The state’s two-year “lookback window” is part of a law passed in May 2019 extending the state’s statute of limitations up to age 55 for civil claims related to childhood sexual abuse. Or, if the survivor is older than 55, the law extends the period to seven years after the survivor makes the discovery connecting emotional and psychological injury to the abuse. The lookback window is open through November 30, 2021.

What does this mean for educational institutions? This means that childhood abuse survivors in New Jersey who did not file a claim before the statute of limitations expired under the prior law — which was age 20, or within two years of realizing that their injuries were connected to their abuse — now have an additional two-year period to bring retroactive claims. Because these civil claims may be brought against educational institutions, including colleges, universities, K-12 schools, and other organizations that work with children, such entities should be aware of this newly opened window and its potential impact.

To understand the potential impact, it may be useful to look at similar laws in other states. As in New Jersey, a growing number of states are changing statutes of limitations for criminal and civil claims related to childhood sexual abuse. By way of quick overview:

  • Arizona opened a 19-month window in June 2019
  • California will open a three-year window on January 1, 2020
  • District of Columbia opened a two-year window in May 2019
  • New York opened a 19-month window in June 2019
  • North Carolina will open a two-year window on January 1, 2020
  • Hawaii opened a second, two-year window in 2018
  • Montana opened a one-year window in May 2019
  • Vermont eliminated any age limits for civil suits in May 2019 and enacted a lookback window with no expiration date

But because “lookback windows” essentially allow survivors to sue no matter when the abuse took place, these laws have proven controversial for state legislatures. Indeed, the Catholic Church and certain industry groups, such as insurers, have lobbied against them. This is not unexpected given the exceptional rate for potential lawsuits. As an example, since New York opened its one-year lookback window in August, more than 1,000 claims have been filed.

In response to similar pushback, the Commonwealth of Pennsylvania took a different approach worth understanding. Although the legislature in Pennsylvania recently extended the statute of limitations for civil suits to age 55 from age 30 (as part of the Statute of Limitations Child Sexual Abuse Reform Package passed on November 21, 2019), lawmakers notably did not include a lookback window for time-barred claims. This is because Pennsylvania legislators argued that a lookback window would be unconstitutional under the Pennsylvania Constitution’s remedies clause. So, in response, the lawmakers reached a compromise to seek to amend the state constitution to provide a two-year lookback window within the language of the constitution itself. But, of course, a constitutional amendment
will not happen overnight, nor is it guaranteed. First, the bill, in identical form, must be passed in the legislature’s next session in 2020-21. Then, Pennsylvania voters must also approve the constitutional change; the earliest such a change could be on a ballot is 2021. The two-year lookback window would not go into effect until 2021 at the very earliest.

So this begs the question, are Pennsylvania entities (and entities in states with no lookback windows) immune from time-barred claims for the moment? Maybe not. Though the ruling is factspecific, in March 2019, the Superior Court in Atlantic City, New Jersey, held in John Doe 1 v. Archdiocese of Philadelphia that a victim who grew up in Pennsylvania could sue the defendant in New Jersey court under the New Jersey statute of limitations because the defendant had “sufficient contacts” with New Jersey. Overall, given public interest concerns, the court specifically noted that, “The alternate forum, Pennsylvania, is inadequate as there remains no remedy there for the plaintiff due to its statute of limitations.” (emphasis added).

What does this mean? It means that out-of-state institutions with “sufficient contacts” in New Jersey, past or present, could thus be impacted by the lookback window if courts find a similar public interest rationale when choosing a state in which to bring suit.

As shown above, this area is continuing to evolve. We will continue to track the nationwide trends that may impact the education industry.