By William Glaberson (New York Times)
June 12, 2012
As former students and prosecutors turn to the courts to deal with reports of widespread sexual abuse at the Horace Mann School, lawyers have begun to conclude that New York's current restrictive statute of limitations laws are likely to block any effort to hold the prestigious private school legally accountable for the allegations, some of which are decades old.
The Bronx district attorney, Robert T. Johnson, set up a special hot line on Tuesday for former students to report episodes of sexual misconduct. He has acknowledged that cases may not fall within the statute of limitations, a situation that would prevent a criminal prosecution. Mr. Johnson has added that it is not clear whether private schools are covered by laws that require school administrators to report child abuse, as public schools are.
"Despite the statute of limitations issues, information about past conduct can be helpful in assessing the current situation," said Steven Reed, a spokesman for the district attorney's office, on Tuesday. The passage of time may also complicate any civil suits. Michael G. Dowd, a New York lawyer who has represented victims of sexual abuse for years, said former Horace Mann students had asked him to review their cases, but most suits would be barred by the state's statute of limitations.
"I'm disgusted," Mr. Dowd said in an interview. "When you have to tell someone who was injured as a child that there is no justice for them, it makes you appalled and sick as a human being."
In the days since they were first described in an article in The New York Times Magazine, the accounts of abuse by several now-dead Horace Mann teachers have put a sharp new focus on state laws that make New York among the most restrictive in limiting legal recourse in child sexual abuse cases. For years, efforts in Albany to liberalize the laws have failed, often encountering fierce resistance from the Roman Catholic Church and other institutions that feared financially devastating lawsuits. "New York is one of the worst states in the country for child sex abuse victims," said Marci A. Hamilton, a professor at Benjamin N. Cardozo School of Law at Yeshiva University who specializes in sexual abuse law.
For civil suits and many criminal charges, New York law requires that allegations be made in court by the time a victim is 23 years old. With the most recent Horace Mann accounts dating from the 1990s, the courts would be likely to bar most cases against the school, its administrators or its teachers, legal experts said.
Around the country, as they have responded to evidence of abuse that often dates from decades ago in the Catholic Church, several states have amended their laws to permit suits many years after the episodes. Connecticut, California and Delaware are among the states that have liberalized their approach. Several states have lifted restrictions on when a lawsuit could be filed, while others allow victims to begin lawsuits at whatever point they come to understand the harm done to them by childhood abuse, no matter how old they are, like when a connection is made between adult depression and a childhood sexual assault.
But New York has remained among the most restrictive states, along with Michigan, Illinois and Ohio, said Jeff Anderson, a St. Paul lawyer who has handled thousands of suits against the Catholic Church.
Margaret M. Markey, a Queens assemblywoman, has repeatedly sponsored a bill to change the law to permit civil suits by victims until they are 28, and which would provide a one-year period during which the courts would consider old abuse claims.
Assemblywoman Markey, a Democrat, said the Horace Mann assertions seemed to have changed the political landscape, in part by shifting the focus from the Catholic Church. She said the accounts showed, "It can happen to anyone."
But Dennis Poust, the communications director of the New York State Catholic Conference, noted that one important goal of any statute of limitations was to keep the courts from getting involved in lawsuits based on long-ago incidents, when, he said, it is often difficult to get to the truth.
"We believe," Mr. Poust said, "it is impossible to defend against claims that are decades old when the abusers are dead or infirm, and the people who supervised them are dead."
New York judges have sometimes seemed frustrated that the state's statutes of limitations barred the suits. In 2006, the state's highest court said the existing law did not permit suits against the Catholic Church based on old claims. "However reprehensible the conduct alleged," the court said, "these actions are subject to the time limits created by the Legislature."
With varying degrees of success, victims' lawyers have tried novel strategies to keep sex abuse suits alive. Some have tried suing under state or federal laws that permit action against racketeering enterprises, but such laws are often geared toward financial damage, not an emotionally scarring experience. A federal-court case now under way in New York involving claims of sexual abuse at another private school, Poly Prep, in Brooklyn, is testing that legal approach.
Other cases have been based on claims that cover-ups and conspiracies continued through the years. Such a position can remove any statute of limitations issue because such cases are effectively about the conspiracy, not the original sexual assault.
Horace Mann has called the allegations of sexual abuse abhorrent, but declined to respond to specific allegations "upon advice of counsel."
Ms. Hamilton, the Cardozo law professor, said that as prosecutors and civil lawyers evaluate potential cases they will focus on whether those who currently run the school have had knowledge of any sex abuse allegations."The question with Horace Mann," she said, "is whether or not there is an ongoing conspiracy."