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Global Underwriting Manager, General Liability, AXA XL

Incidents of sexual abuse and molestation are tragically commonplace and cause traumas that last for a lifetime. For decades, victims in most states in the US had a narrow window in which to file civil liability claims before statutes of limitations ran out – until recently.

According to CHILD USA, a nonprofit organization that tracks such laws and advocates for victims of sexual abuse, new Statute of Limitation (SOL) reform laws went into effect in 2021 in 7 states as of June 2, 2021, which I’ve paraphrased below:

  • Arizona - A civil cause of action was added with no SOL for sex trafficking of minors and adults with liability for those who benefited from the trafficking venture (Governor Signed into Law on March 23, 2021).
  • Arkansas - Extended the civil SOL for sexual abuse of minors from age 21 to age 55 and opened a 2-year revival window for expired claims (effective on April 30, 2021). Extended the criminal SOL by expanding the DNA rule (Governor Signed into Law on April 30, 2021).
  • Colorado - Eliminated the civil SOL for sexual assault of minors and adults (Governor Signed into Law on April 15, 2021).
  • Iowa - Eliminated the criminal SOL for all child sex abuse felonies and misdemeanors. Also added the crime of sexual abuse or exploitation by an adult providing training or instruction with no criminal SOL and extends the civil SOL for instructor sexual exploitation to 5 years after treatment or after the victim was last in school (Governor Signed into Law on May 12, 2021). Added a civil remedy for disclosure of private, sexually explicit images without consent of the depicted individual and sets the SOL at age 19 for offenses against minors (Governor Signed into Law on April 30, 2021).
  • Kentucky - Revived claims for sexual abuse if brought within 5 years of when the SOL expired. Clarified that the 2016 civil SOL extension also applies retroactively to claims against other individuals and entities. Extended the criminal SOL for misdemeanor child sexual assaults or abuse from age 23 to age 28 and broadens the applicable offenses to include sex trafficking, promoting prostitution and pornography (Governor Signed into Law on March 23, 2021).
  • Nevada - Eliminated the civil SOL for claims against a perpetrator or someone criminally liable for sexual abuse or exploitation of a minor and a promoter, possessor, or viewer of CSAM (child sexual abuse material) and opened a permanent revival window for expired claims. Extended and revived the civil SOL for sexual exploitation of a minor up to age 38 for claims against other defendants with treble damages recoverable for participating in or covering up the abuse. Shortened the civil SOL for sexual abuse of a minor against other defendants by removing the 20-year discovery rule but kept the SOL at age 38. Revived claims up to age 38 and added that treble damages are recoverable for participating in or covering up the abuse (Governor Signed into Law on June 2, 2021).
  • Tennessee - Broadened criminal SOL elimination for felony sex trafficking of minors by removing evidentiary barriers to prosecution (Governor Signed into Law on May 11, 2021).

20 states, Washington D.C. and the US Territory of Guam revived expired civil SOLs. The states/jurisdictions with the best revival laws are Guam and Vermont since the revival window is permanently open for all claims against all types of defendants. The states with the next best revival laws are Arkansas, California, Delaware, Hawaii, New Jersey, and New York since the revival window is for 2 or more years or the revival is up to age 55, for claims against all types of defendants.

14 states and Guam have eliminated civil SOLs. It is not possible to revive an expired criminal statute of limitations, because doing so violates the U.S. Constitution, but existing criminal statutes of limitations can be extended or eliminated.

43 States, Federal Government, D.C. and US Territories have eliminated criminal SOLs. The states with the best Criminal SOL Ranking are Connecticut, Delaware, Illinois, Iowa, Maryland, Missouri, Montana, South Carolina and Wyoming due to the full elimination for all felonies and misdemeanors. The states with the next best ranking are Alaska, Alabama, Maine, Nebraska and Tennessee due to the elimination for some felonies and misdemeanors.

It is important to note the reasons that many abuse victims do not immediately file claims. One is that abuse often leads to a downward spiral of post-traumatic stress disorder, depression, substance abuse and other health problems, delaying disclosure. Secondly, numerous studies also conclude that it can take many years for a victim who was abused as a child to recognize that abuse occurred, particularly because most perpetrators are known to their victims. Thirdly, fear of not being believed or feelings of responsibility for the abuse can dissuade victims from coming forward. As a result, studies suggest the majority of victims who experienced child sexual abuse do not disclose the abuse until adulthood.

The past few years have seen numerous large verdicts and settlements relating to sexual abuse and molestation, including $1.1 billion settlement in 2021 ($215m prior settlement in 2018 and $852m settlement in 2021) by USC to former patients of a campus gynecologist, a $1 billion jury verdict in 2018 to a woman who had been raped at age 14 by a security guard in her apartment complex and a $500 million settlement against Michigan State University in 2019 in favor of 300 women and girls against the university’s sports doctor. More than 95,000 claimants filed sexual abuse claims against the Boy Scouts of America. The Boy Scouts victims committee is estimating the value of the claims at $103 billion. Other organizations, ranging from hospital systems to universities, have reached abuse settlements totaling in the hundreds of millions of dollars.

Fear of not being believed or feelings of responsibility for the abuse can dissuade victims from coming forward. As a result, studies suggest the majority of victims who experienced child sexual abuse do not disclose the abuse until adulthood.

What steps can companies take to reduce the liability exposure to sexual abuse claims?

All industries are exposed to liability arising from sexual abuse and misconduct. With more states increasing opportunities for filing lawsuits and the size of verdicts and settlements growing, no organization can afford to ignore the risks of abuse incidents. Although the objective to revive statues is to enable victims to pursue justice, an inevitable consequence to public-and private-sector organizations is greater exposure to litigation costs, judgments, and settlements for what may be decades-old incidents.

The risk mitigation efforts include creating robust internal policies and training which should be reviewed and updated by an attorney (or other experienced professional with applicable law) on an annual basis (or no more than 2 years), enforcing a zero tolerance policy, mandating criminal background checks on employees who will work with children, checking the abuse registry, establishing written procedures to respond to allegations of abuse and for reporting allegations of abuse to authorities and requiring employees, volunteers, independent contractors, temporary and leased workers to complete organizational abuse prevention training.

Several states are responding by enacting new laws to address sexual harassment in the workplace For example, California requires employers with 5 or more employees to provide sexual harassment prevention training to all employees, the harassment prevention training must cover certain specified topics, talent agencies are required to provide sexual harassment training and educational materials, hotel and motel operators must provide training on human trafficking awareness and employers must develop an anti-harassment policy that includes a complaint procedure.

For more information about our casualty insurance solutions, please visit https://axaxl.com/insurance/product-families/casualty.

 

About the author

Nicoletta George is Global Underwriting Manager, General Liability at AXA XL. Before joining AXA XL in 2014, she held various strategic and underwriting roles at other global insurance organizations. She holds a Master of Business Administration degree and the Chartered Property Casualty Underwriter (CPCU) and Associate in Insurance Data Analytics (AIDA) designations.

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