When I was discussing the recent jury verdict finding Donald Trump liable for defamation and sexual assault with an astute trail lawyer friend, he expressed surprise that the sexual assault civil case wasn’t barred by the statute of limitations, as the criminal case was. Among the glaring problems with the jury verdict was that it found by a preponderance of the evidence that the sexual assault—not the rape allegation , which, strangely, is what Trump called a lie on social media, prompting the defamation suit—took place even though Carroll couldn’t say what year it had occurred in. “This is the reason we have statute of limitations,” my learned friend said. “Memories fade, evidence is lost, testimony becomes unreliable. I’m amazed New York’s statute allows this.”
Well therein lies a tale. The statute didn’t allow it until, coincidentally <cough> last year. The Adult Survivors Act was passed by the New York legislature and signed by Democratic Governor Kathy Hochul in 2022. It created a “one-year lookback window for survivors of sexual assault” to legally pursue their alleged abusers, irrespective of when the abuse took place.
It was and is a blatantly political measure, pandering to the #MeToo crowd, which itself is deeply conflicted and corrupt. Now bad, bad men like Harvey Weinstein, Bill Cosby and…surprise! Donald Trump, can be sued during a convenient one year window no matter how long ago their alleged sexual misconduct took place, or how blurry memories of the details may be. Never mind that the protection against unfair sexual assault and sexual harassment lawsuits based on accusations that only surface when the accuser calculates that there are forces at play in society (like “Believe all woman”) making a victory likely should be available to all citizens. Never mind that such late-hit lawsuits rely on emotion and politics as much as evidence.
There is another side. The advocates for the law insist that victims like Carroll, Weinstein’s desperate actresses and Bill Cosby’s drugged targets couldn’t sue in time to meet the statute’s requirements because a male-biased system was stacked against them. The Adult Survivors Act only removes a systemic and societal obstacle to such women being compensated and their assailants being justly punished….and, after all, it’s only for one year.
Your Ethics Alarms Ethics Quiz of the Day…
Is The Adult Survivors Act ethical, or unethical?
I think it’s a close call, but consider that Carroll and her attorney, Roberta Kaplan, had this exchange with CNN’s Poppy Harlow:
Harlow: “…New York passed this law, the Adult Survivors Act…just a few years ago. Were it not for that law, you never would have been able to bring this case.”
Carroll: “Exactly. …. I would never have this window, this year of having the ability to bring a lawsuit for rape. Robbie can explain it better.”
Kaplan: “Well, E. Jean actually helped to get that law passed. It passed last year. We filed [on]Thanksgiving Day, the first day you could sue. We filed it just after midnight on Thanksgiving. And there are a lot of other women throughout the state and, hopefully, throughout this country, that they will get other laws like this passed in other states. And New York women should use this law while it’s still around, which is until next Thanksgiving.”
Fascinating.
One might reasonable suspect that New York Democrats deliberately passed the law when it became clear that Joe Biden faced a real threat from Trump, and decided to clear the way for a potentially devastating sexual assault liability case against him…but that would be just another right wing conspiracy theory. Some additional points are worth noting:
Most of the mainstream media has failed to mention the role the Adult Survivors Act played in allowing this verdict to happen, just as few news sources have explained the crucial distinction between civil liability and criminal guilt. Most of my non-lawyer friends say, and believe, the Trump was found “guilty” of a crime.
It sounded to me like Harlow tried to prevent suspicions that the Act was another “Get Trump” tactic by saying that it was passed “a few years ago.” She planned on raising the law in the interview: is it really likely that Harlow didn’t know when the law was enacted?
It is also interesting that Carroll’s lawyer is the same Roberta Kaplan who co-founded Time’s Up!, the non-profit #MeToo advocacy group that she later destroyed by secretly trying to help Governor Hochul’s disgraced predecessor, Andrew Cuomo, discredit his sexual harassment accusers.
Ethics Alarms 
I was wondering why you didn’t mention this in your previous post about the verdict, and am glad to see you getting around to it here.
This has all the earmarks of an ex-post-facto law, no matter how it was dressed up. Call me a conspiracy theorist, but it’s ludicrous to imagine the statute was passed for any reason other than going after Trump. Carroll herself was involved in lobbying for passage.
Much as I loathe Donald Trump, this verdict – and the law that enabled the suit to be brought – seem to me to be completely unconstitutional. One wonders if a successful appeal can be made on those grounds.
So, I wondered about the ex post facto implications of the law. It seems that ex post facto criminal laws are unconstitutional.
Does that apply to civil statutes? Can a legislature fashion civil liability on expired claims for a limited time frame to address what is now perceived as a past injustice? Would that, then, apply to something like reparations payable to former slaves?
I don’t buy the argument promoting the law – that civil courts were too biased against women in the 1970s, or 1980s, or 1990s such that they didn’t have recourse to legal actions for sexual harassment or abuse. Discrimination laws prohibited sexual harassment since the late 1960s. Bill Clinton faced civil suits from many of his accusers in thr 1990s. So, how does a one-year reprieve or extension on expired claims fix that problem, other than making insurers nervous?
jvb
I’ve said it before and I’ll say it again – memories get fuzzy over time, I don’t deny – I would never forget the date someone tried to sexually assault or rape me (which, thankfully, has never happened). I may forget what floor the elevator was on. I may forget what color tie he was wearing. The date? Never.
And, I’m sorry, did Kaplan say that the victim helped pass the legislation she used to file her lawsuit? That doesn’t smell of rotten motives, does it?
Uh, doesn’t this law (and I use the term loosely) have an ex post facto problem cooked into its very existence?
Ooops, sorry, Arthur on Cape Cod. You beat me to it.
Try proving that, though.
It had a retroactive effect, so of couerse it is ex post facto.
That’s not what have been fund to be ex post facto laws, though. I think the act is unethical, but I can’t find a Constitutional objection to it.
Aren’t laws supposed to be prospective? Shouldn’t this goofy Rube Goldberg of a contraption only apply to incidents arising from and after the day it was put on the books?
The current precedent on this is wrong (though of course I must concede that inferior judges must follow it)
A similar change in the California law regarding child sexual abuse is what allowed the Whiting/Hussey lawsuit over their treatment in “Romeo and Juliet,” which you and I both wrote about in January.
That suggests to me that a national re-evaluation of statutes of limitations on civil suits seems to be underway (rightly or wrongly). But just as I (not being a lawyer) had hitherto believed that statutes of limitations had applied only to criminal cases, I now have the same question about ex post facto concerns.
To play out the civil vs. criminal distinction… it strikes me that the “preponderance of evidence” suggests that there were political, perhaps (probably?) specifically anti-Trump, motives at play in changing the law. I’d say that allegation falls rather short of “beyond reasonable doubt,” however.
Honestly, I’d like to see the Trump case reviewed by the Supreme Court of the United States. I think it would be an excellent vehicle to overule Calder v. Bull, which in my layman’s opinion was wrongly decided with respect to the holding that only criminal law was subject to the ex post facto prohibition of Article I section 10 of the US Constitution.
This is a perfect example of why such laws were forbidden; they were used as cudgels against political enemies after the fact. This is no less true of the instant case, even though the law could arguably be said not to be directed specifically at Trump (although everyone with a functioning brain knows otherwise).
I think the Founders clearly understood that laws in both the civil and criminal context could be used to retroactively punish those with whom the current government disagreed, and I think the Ellsworth Court got this one wrong to the extent it declares civil laws cannot be ex post facto laws.
I loathe Trump, and wouldn’t mind seeing him have to pay someone 5 million that he wronged. I do have problems with how this was done, though.
Tbere was no excuse for the Adult Survivors Act.
I’m curious.
Someone should investigate into how many cases across the State of New York cases were filed within 24 hours, 48 hours, 72 hours, or within a week using The Adult Survivors Act being signed into law and used as the basis for filing a rape case like Carrol did. There must have been public pressure of some sort from the public to pass this law therefore then there must have been many cased files immediately like Carroll did.
Don’t bet anything you can’t afford. I honestly doubt the democrats thought that far ahead…but I’m rather cynical
Wow, I really should have edited that and gotten rid of the extra words. That’s what I get for using my phone in the go. 🤪
Statutes enacted for individuals are per se unconstitutional. I’d say this one comes pretty darned close to that line.
This law would be fertile ground for a first-year case comment.