THE CONSTITUTIONALITY OF THE ASA

Lesley Brovner & Mark Peters
July 7, 2023

On May 1, 2023, the attorneys for Bill Cosby filed a motion in New York State Supreme Court challenging the constitutionality of the Adult Survivors Act. Last week, on July 5, 2023, the survivors who filed the lawsuit against Cosby responded. We discuss both the motion and the response below, concluding that the survivors’ response is more powerful and likely correct – the ASA is constitutional.

WHAT IS THE ADULT SURVIVORS ACT (ASA)?

New York’s Adult Survivors Act (ASA), which went into effect November 24, 2022, is a landmark law that created a lookback period allowing the adult victims of sexual assault and abuse to pursue time barred claims in court. Survivors have until November 23, 2024, to file a claim under the ASA.

The ASA was modelled on New York’s Child Victims Act (CVA) which created a lookback window for survivors of sexual assault who were under the age of eighteen at the time of the assault. The CVA resulted in over ten-thousand lawsuits and was incredibly effective at allowing survivors of sexual abuse to hold institutions accountable.

WHY DID WE NEED THE ASA?

The CVA only applied to cases of abuse where the victim was under eighteen years of age. The ASA created a similar one-year lookback window for survivors of sexual abuse who were over eighteen and whose claims are presently time barred. For civil cases, prior to the passage of the ASA, adult survivors of sexual abuse generally had only three years to file a claim.

WHAT DID THE COSBY ATTORNEYS ARGUE?

Cosby’s defense attorney, Jennifer Bonjean, argued that the ASA violates due process under both New York State law and the U.S. Constitution, as well as the bar on ex post facto laws. Specifically, without citing New York cases, Cosby’s lawyer argued that: “Indeed, a majority of state courts to address the issue have held that once a statute of limitations has run, the defense of that statute is a vested right that cannot be taken away through legislative action.” The Cosby lawyers further argued in their Memorandum of Law that while New York State has allowed revival statutes that extend the statute of limitations, they have only been allowed in extreme circumstances where there is a specific justification. Here, they contend that no such justification exists.

HOW DID THE SURVIVORS’ ATTORNEYS RESPOND?

The survivors’ attorney argued that the courts have already determined that the Adult Survivors Act and its near-identical predecessor the Child Victims Act are constitutional.
The Survivor’s attorneys also pointed out that “While Defendant, relying on just seven cases, claims that most states have found reviving expired claims to be unconstitutional, at least twenty-three states and the District of Columbia have expressly held that retroactive application of revival legislation is constitutional.”

IS THE ASA CONSTITUTIONALLY SOUND?

As the survivors’ attorney in the Cosby case pointed out, a recent decision by the Southern District of New York, Carroll v. Trump, No. 22-CV-10016 (LAK), 2023 WL 185507 (S.D.N.Y. Jan. 13, 2023), found the ASA specifically to be constitutional, and New York State courts have repeatedly found the law upon which the ASA is based, the CVA, to be constitutional, citing: Schearer v. Fitzgerald, 2023 WL 4219275 (2d Dep’t 2023), Doe v. Niagara Falls City School District, 213 A.D.3d 82 (4th Dep’t 2023); SR v. Gates Chili Bd. of Educ., 185 N.Y.S.3d 912 (Sup. Ct. Monroe Cty. 2023).

Indeed, as Cosby’s attorney admitted in their brief, “The Court of Appeals…recognizes that a revival statute may pass muster under the Due Process clause, if it constitutes, ‘a reasonable measure to address an injustice.’” Defendant’s Brief, p. 6, citing Matter of World Trade Ctr. Lower Manhattan Disaster Site Litigation, 30 N.Y.3d 377, 400 (2017).

As the survivors’ attorney points out, the ASA clearly satisfies the “reasonable measure to address an injustice,” standard. As the lawmakers who passed the ASA made clear, the law was created to undo the injustice created by the short statute of limitations that failed to account for how long it takes survivors to process and overcome the trauma of sexual abuse.

For these reasons, the ASA is likely constitutionally sound.