Feb 2019

The “Me Too” Movement, Public Policy & Non-Profits

On October 5, 2017 the New York Times published a story regarding decades of sexual harassment claims against Hollywood Mogul Harvey Weinstein. Actresses Rose McGowan and Ashley Judd came forward as alleged victims of Weinstein. The “Me Too” movement was born and it heightened awareness of unsolicited sexual attention from persons in power, even in an age of sexual liberation.

The “Me Too” movement came to the Catholic Church in the United States on June 20, 2018 when the former Archbishop of Washington D.C., Cardinal Theodore McCarrick, was removed from ministry because he had been credibly accused of sexually abusing a minor. Immediately thereafter, anecdotal stories of McCarrick’s escapades with seminarians flooded the media. Several weeks later, on August 14, 2018, the Pennsylvania Grand Jury report detailed decades of clerical sex abuse in Catholic dioceses.

More recently, the “Me Too” movement impacted the nomination process of Supreme Court Justice Brett Kavanaugh. Additionally, state governments in New Jersey and Virginia have become embroiled in “Me Too” allegations, prompting continuing media attention and the inevitable scrutiny of politicians looking to ingratiate themselves with voters.

The New Jersey Legislature is currently holding hearings on a bill that would eliminate the statute of limitations for civil sex abuse claims. Presently, New Jersey law provides that a civil sex abuse claim must be filed within two years of reasonable discovery of the injury and its causal relationship to the act of sexual abuse. N.J.S.A. 2A:61B-1. The elimination of the two-year statute for civil sex abuse claims would undoubtedly increase exposure for Non-Profits where such injuries often lie dormant for years or even decades. In part, this may explain why New Jersey’s Catholic dioceses have announced the creation of the “New Jersey Compensation Fund for Victims of Church Sexual Abuse of Minors.”

There is good reason to suggest that legal reform can have a remedial affect on sexual abuse. The federal Civil Rights Act of 1964 and New Jersey’s Law Against Discrimination have profoundly reduced discrimination in our society. As such, there is reasonable hope to believe that legal reforms could reduce sex abuse in society. However, eliminating the statute of limitations may have unintended harmful effects.

The elimination of the two-year statute of limitations would certainly provide the financial incentive for organizations to take all available remedial steps to eliminate the scourge of sexual abuse. There are, however, weighty public policy concerns that should be considered prior to taking such a step. Statutes of limitations are in place for the protection of Defendants. It has long been held that Plaintiffs should pursue valid causes of action with reasonable diligence to avoid the claim becoming stale, whether through fading memory or loss of relevant evidence. The litigation of long dormant claims may lead to situations where Defendants have no ability to refute the claims because of loss of evidence over time. The prevailing zeitgeist seems willing to ignore these concerns to remediate a recognized scourge.

The elimination of the two-year statute of limitations poses a particular problem for Non-Profit institutions working with children and vulnerable adults. Indeed, recent attempts to eliminate the two-year statute in New Jersey have been linked to proposed amendments to the New Jersey Charitable Immunity Act that would expand the categories of defendants who are potentially liable in civil sex abuse claims. These proposals raise similar public policy concerns. Removal or limitation of immunity for persons working for Non-Profits will undoubtedly cause them to rethink their involvement in those organizations thereby affecting the inherent benefits the organizations offer to society.

It is not clear whether the statute of limitations will be eliminated or whether the Charitable Immunity Act will be modified. Nonetheless, Non-Profits will face claims that will be litigated in an environment with little interest in protecting their due process concerns. Non-Profits must get ahead of the exposure. A consultation with attorneys to do a historical review of past allegations may be warranted. It would be wise to formulate a policy statement on sexual abuse and implement tangible remedial efforts to prevent abuse. At the risk of appearing cynical, it may also be wise to begin advocacy efforts for victims, though awareness campaigns, donations or similar efforts.

Non-Profits are well advised to seek litigation counsel to assess exposure, implement protective measures and where necessary provide a zealous defense. Earp Cohn P.C. has the litigation expertise to provide those services, as well as the more traditional business needs of Non-Profits.