Lieff Cabraser Heimann & Bernstein, LLP
In recent years, sexual assault cases and the broader societal implications have become even more visible with the rise of the #MeToo movement. But what makes an impactful case that can truly drive lasting legal and societal changes to promote safety for survivors and act as a deterrent to predators? Litigators are faced with a litany of questions that follow, including: Should you file a civil sexual assault case? What is the effect of a criminal proceeding? What are the statute of limitations and exceptions? How can we seek justice despite what seem to be many legal obstacles?
In order to make sense of the current landscape, we’re examining lessons learned from litigating civil sexual assault cases and exploring broader trends now and on the horizon that could be helpful for attorneys working on these topics.
Our work on the Weinstein civil lawsuit is a great example of how civil suits can lead to criminal charges. The criminal charges against Harvey Weinstein would likely not have been initiated absent survivors pursuing civil remedies first. The civil lawsuits brought visibility to a long-time abuse spree and introduced public pressure on district attorneys to take action. Additionally, the civil lawsuits allowed the survivors to seek justice against Weinstein’s enablers, like board members of The Weinstein Company, in the network of power he used to coerce women and cover up the abuse.
Although criminal charges don’t necessarily follow civil suits, and in fact exist in separate branches of the justice system, the survivors involved in the civil lawsuits were interested in using every avenue to stop a predator. Criminal charges ensured that Weinstein could not abuse additional women; and the civil lawsuits created the pathway for survivors to seek justice from The Weinstein Company board members who played a role in coercing and silencing women.
When navigating criminal claims, we always encourage our clients to report to the police if they are comfortable, in addition to persuading them to connect with a victim’s advocate to help the client avoid exacerbating trauma through the process.
When navigating parallel criminal and civil claims, it’s important as a civil attorney to make connections with the prosecuting agencies. You’ll likely work closely together throughout the proceedings as you both may be able to better understand the scope of evidence and to ensure that the complaining witnesses are ready for the various forums in which they will testify. Note also that, like most legal avenues, this is not a one-size-fits-all process. Sometimes criminal claims slow down the civil process, but there are opportunities where the parallel proceedings may be advantageous.
One of the goals in many of the Weinstein civil lawsuits was to pursue justice against those who were complicit in protecting the abuser. Those targets included not just the individual officers, directors and employees who protected Weinstein within his companies, but also the organizations themselves which protected the perpetrator. We pursued traditional negligent supervision and retention claims, as well as more novel theories such as racketeering and sex trafficking. These latter claims have longer statutes of limitations, which benefits the victims who typically don’t immediately report the abuse they suffered.
Now, an important aspect of holding boards and networks accountable is being able to identify specific actions taken to ignore or cover up abuse. The law typically doesn’t recognize liability of a board absent its participation in covering up wrongdoing. For example, in the Weinstein case, the Board approved Weinstein’s employment contract which imposed increasing penalties for each woman he harassed—so the company was actually profiting off of his serial abuse.
In the Weinstein case, we also reframed the way we think of sex trafficking. Traditionally, when we think of human trafficking, we think of slavery or prostitution, but sex trafficking can be much broader than that. Any time a person deceives a victim with the promise of a job or reward in order to take advantage of them, they may be violating the federal Trafficking Victims Protection Act. We argued that Weinstein’s only purpose for scheduling meetings with women was to get them alone so that he could attack them, which falls under the definition of sex trafficking. Several federal courts agreed and denied motions to dismiss the sex trafficking claims—which was a big step forward for future lawsuits.
The legal path to achieving justice for past incidents is not always straightforward if you’re relying on state law claims because each state’s statutes of limitations are unique and typically short. But those statutes of limitations are not always a dealbreaker because each state has common law and statutory exceptions.
We worked with a group of women who had been sexually abused for years by a college track coach that controlled much of their athletic and daily lives. One woman didn’t realize she had been groomed and abused until much later in life when her memories of the events were triggered. Another woman had contemporaneously reported the abuse, but her university told her that she had no claim and was overreacting.
Though the accused coach filed motions to dismiss based on the statute of limitations, the court permitted the case to proceed. The court recognized there are reasons why trauma survivors often do not come forward, citing the “pervasive problem” of sexual assault on college campuses and finding that “various tolling doctrines prevent the Court from determining that Plaintiffs’ claims are time-barred.”
Although the statute of limitations can be a difficult barrier, an attorney’s familiarity with these issues can yield creative arguments to articulate grounds for exceptions. One novel exception we argued is that common law tolling is appropriate when there is a power imbalance in the relationship, such as in a coach-athlete relationship.
As we work with clients on these issues, it’s also important to be aware of any potential legislative reforms on the near-term horizon. Although more changes are needed to raise recognition of the pervasive barriers to seeking justice after trauma, there are positive changes already taking place, such as the proposed Adult Survivors Act in New York, which recognizes that survivors might not process the trauma until much later in life.
Additionally, there are oversight organizations in sport who handle allegations of sexual abuse and assault, such as SafeSport, which was organized as part of the federal Safe Sport Act. With oversight organizations, it’s important to understand how they may range in effectiveness and fit in to any proposed civil solution for the survivors. For example, SafeSport does not award damages but does make decisions regarding the accused’s disqualification from further participation in the sport, which is often the client’s primary objective. From an attorney’s perspective, swift oversight proceedings can also provide a glimpse of the opponent’s defenses.
At the University of Southern California (USC), we worked with survivors and vulnerable students who had been preyed upon by the campus student health center physician. This case became a great example of how individual and class action claims can work together to create systemic change, particularly as the class action provided added validity to the individual claims by showing the widespread issue at hand.
This case not only demonstrates the mechanisms of civil litigation when pursuing sexual abuse claims, but it also shows the larger trends at work. In the USC case, we were uncertain whether the court system would allow a class action settlement to proceed when individual claims were pending. However, due to the widespread nature of the alleged abuse, the court recognized that plaintiffs’ allegations—that USC knew about the abusive physician—meant every patient who saw the physician was in a “zone of danger,” regardless of whether or not they had been assaulted. This allowed the class action to seek justice for putting students in harm’s way, while still allowing others to recover based on their specific experiences and abuse claims.
This case set a roadmap for arguing that class members should be compensated for being forced into the “zone of danger” with an abuser, and the combined power of the individual and class action cases created pressure on the systems of power to remove the abuser and protect the students. Our biggest takeaway from this case is the importance of pursuing creative, client-first approaches, in the hopes of moving the needle in the application of the law to provide support for survivors.
The fight to end sexual assault continues, and it is not without its uphill battles. However, the more we bring forward cases with creative legal arguments, the more we can change precedent and make a meaningful change to how these cases are perceived and litigated on the national scale. The tools exist to extend the boundaries of the law on holding boards and networks accountable, and we need to continue to advocate for the idea that, in these systemic cases, it’s not just the abuser who is responsible for the abuse.
It will take this concentrated effort to effectuate change on a local and national scale—to fully bring #MeToo into the courtroom.
For more information, check out the authors’
Lynn Ellenberger has extensive trial and appellate experience in courts around the country. In 2019, Lynn launched the Pittsburgh office of FeganScott, where she focuses on the firm’s fight against sexual abuse, employment discrimination, sexual harassment, consumer fraud and civil rights violations.
Elizabeth Fegan cofounded FeganScott in 2019. Beth is on the vanguard in the legal battles surrounding sexual assault, abuse and harassment. She has led sex trafficking claims against disgraced movie mogul Harvey Weinstein and is a leader in claims of sexual abuse and complicity.
Annika K. Martin is a partner in the New York office of Lieff Cabraser Heimann & Bernstein, LLP and has represented plaintiffs since 2005 in environmental, mass tort, consumer protection, and sexual abuse cases.
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Disclaimer: The viewpoints expressed by the authors are their own and do not necessarily reflect the opinions, viewpoints and official policies of Practising Law Institute.
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