In Many States Revised Statutes of Limitation May Make You Defend an Ancient Claim
News comes out of California today that Philadelphia native and once celebrated comedian Bill Cosby was just hit with another $19 million dollar award over an incident where the plaintiff asserted she was drugged and assaulted by Cosby in 1972. We invite you to read the articles and form your own judgment. It seems that in a deposition Mr. Cosby may have admitted that he acquired drugs and employed them to secure what he argues was “consent” to certain sexual conduct.
We tend to view these celebrity cases in the abstract. But that is an error. And let’s illustrate why with some all too common facts. Assume for the moment you are 65 years of age and signing up for Medicare. You have been married for 35 years, and you have two kids ages 30 and 28. One day, the local constable appears at your door with a civil lawsuit naming you as the perpetrator of a sexual assault. The name of the plaintiff is unknown to you; so far as your ancient memory can recollect your life in 1995.
The complaint alleges that on a summer night in 1995 you were 30 years old and you met a 20-year-old college student. She alleges that on that night you plied her with alcohol and took her back to your apartment and sexually assaulted her. This event has caused her a lifetime of pain and suffering, at least in an emotional sense, and she wants a jury to decide what damage you inflicted.
Let’s assume that you are no monk and that at age 30, you were still single and dating in the sense that there were one-night stands and a series of more serious “relationships.” But you also are confident that you are no felon; that you understood back then that “No meant no” and that while you may have been pursuing a “Yes” you would never have imposed unconsented sex.
Now, let’s give you credit for a better memory. The name rings no bell, but you were in State College on the date she alleges and that was a bar you frequented. You have recollections that she did come home with you. The sex was consensual and the following morning you had brunch at the Nittany Lion Inn with the plaintiff and two folks you knew from the bar where you met the plaintiff. You may have exchanged phone numbers as you left, but no one followed up.
Until now. Now, you are reading that you drugged her or had sex without her consent and she has been seriously harmed by the encounter. Your wife and kids are looking at you, wondering, “Could this be my husband, our father?” Meanwhile, the complaint makes no reference to brunch or the friends or the exchange of phone numbers. Was that your fantasy?
Chances are good that you didn’t keep the brunch receipt or the phone number. You may not recall the identities of the friends who joined you. And picture calling someone you knew three decades ago and renewing your acquittance with: “Hey, I’m charged with raping a woman whom I believe joined us for brunch one day in 1995 at the Nittany. Would I be imposing if I asked you to testify in my defense?”
Until society began to grasp the ubiquity of sexual assault, the law was fairly clear. Victims had two years from the date of such an assault to bring a civil suit for damage. If the victim was under 18 when the incident occurred the two years ran from the date he/she reached age 18. Today, every state has its own interpretation. In Pennsylvania, children now have to file before age 55 unless they were born before 1989. Victims assaulted at age 18-24 have until age 30 to file a civil action. Victims over 24 must file within two years of the event. Pennsylvania Sexual Assault Statute of Limitations| Helping Survivors
These cases are a mess. Plaintiffs victimized by sexual assault rarely have witnesses to corroborate their claims. Defendants might or might not know people who would help rebut the allegation with facts like brunch or other pre- or post sexual events. We have encountered a couple of dormitory cases where one party professes the sex was coerced or forced while the other contends it was consensual. There can be significant jail time and money damages riding on the jury’s definition of consent. What we have seen in a couple recent cases involving young people attending boarding school and college is mutual attraction and an interest in experimenting accompanied by a clear misunderstanding as to how far that experiment should go. Having said that the world is also occupied by its more than fair share of predators.
Old cases are a long shot because juries start by wondering why they were not brought sooner. Certainly, there are victims who repress the memories of a traumatic injury, but jurors will also ask how accurate a repressed memory really is. Meanwhile, defendants who have deep pockets must fear that a plaintiff and a lawyer will take a shot at securing a Cosby size verdict. Under current Pennsylvania law, the case brought by Donna Motsinger against Cosby would not have met that statute of limitations requirements as the assault occurred in 1972. But each state has different laws on how quickly these claims must be brought and statutes have been modified in nearly every state to allow victims of clergy and scouting abuse to seek compensation.
Our society has come along way in warning young people to be wary of strangers bearing perceived gifts. But, the unfolding Epstein experience illustrates that we need to do more to prepare young people to “Just say no” to sexual experiences where there is ambivalence on the part of either participant.
N.B. News issued on Tuesday March 24 that the jury added $40 million in punitive damages based on a finding that Cosby’s conduct was intentional.