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What is the Burden of Proof in an Adult Survivors Act Case? How Can a Lawyer Fight Back?

March 21, 2024 Uncategorized

The Adult Survivors Act (ASA) in New York provides a huge opportunity for adult survivors of sexual abuse to pursue justice, even if the statute of limitations on their claims expired long ago. But with this opportunity comes challenges – namely, meeting the burden of proof for these civil cases.

What is the burden of proof in ASA cases?

In civil cases, the burden of proof is “preponderance of the evidence.” This means the plaintiff (the survivor bringing the lawsuit) must show it is more likely than not – over 50% probability – that the abuse occurred and caused harm. This is a much lower standard than “beyond a reasonable doubt,” which is required for criminal conviction.So in ASA cases, survivors must present compelling evidence showing the sexual abuse more likely happened than not. Their attorneys will gather records, testimony, documentation and other proof to meet this burden.

Why is meeting the burden of proof difficult?

There are a few reasons these cases can be challenging:

  • Lack of physical evidence – With abuse from years past, there is often no DNA evidence, rape kit, or other physical proof.
  • Statute of limitations expired – Plaintiffs may not have gathered evidence when the case wasn’t viable due to statute of limitations. Now they must reconstruct a case from memories, records if available, and testimony.
  • Reliance on testimony – Witnesses may be difficult to locate or their memories faded. Credibility of witnesses can be called into question.
  • Records and documentation – Plaintiffs may lack documents like medical records, employment records, school records that could corroborate the abuse and harm.
  • Death of the abuser – If the abuser is deceased, they cannot be questioned or admit guilt.

So while the standard of proof itself is lower in civil cases, gathering sufficient evidence to meet that standard can be very difficult depending on the circumstances.

How can a lawyer help meet the burden of proof?

Experienced sexual abuse attorneys have many strategies to build a compelling case:

  • Conduct in-depth interviews – Thoroughly interviewing the plaintiff helps develop a timeline, identify sources of proof, and prepare for cross-examination.
  • Locate corroborating witnesses – Find witnesses who can testify to contemporaneous disclosure or corroborate plaintiff’s testimony. Use investigators if needed.
  • Obtain documentation – Gather any relevant medical records, employment records, school records, police reports, or other documents.
  • Consult experts – Retain experts like psychologists who can explain common victim responses and the typical impacts of sexual trauma.
  • Question defendant – Schedule a deposition of the defendant to gain admissions or lock in their version of events.
  • Research defendant’s past – Look for any prior allegations of abuse or corroborating evidence in defendant’s history.
  • Address credibility issues – Anticipate and prepare for any attacks on plaintiff’s credibility.
  • Make legal arguments – Argue to admit evidence even if outdated or presently barred by statutes.
  • Utilize discovery – Use interrogatories, requests for production, depositions and other discovery devices to obtain evidence.
  • Highlight circumstantial evidence – Since direct evidence is often limited, emphasize relevant circumstantial evidence.
  • Emphasize plaintiff’s testimony – The plaintiff’s testimony alone can be sufficient to meet the burden of proof if consistent and credible.

What damages can a lawyer pursue?

Lawyers can seek full financial compensation for the survivor under the ASA. This includes:

  • Economic damages – Reimbursement for medical costs, counseling costs, lost wages, reduced earning capacity, etc.
  • Non-economic damages – Compensation for emotional distress, mental anguish, humiliation, loss of enjoyment of life, etc.
  • Punitive damages – Money awarded to punish the defendant’s actions and deter future misconduct.

Experienced attorneys will aggressively pursue full damages through settlement negotiations or trial as needed.

Conclusion

While ASA cases present difficulties including faded memories and lack of physical evidence, skilled sexual abuse lawyers have the expertise to build strong cases by gathering corroborating testimony and documentation. Their legal skills and preparation can help survivors meet the burden of proof and obtain justice. The ASA provides long-awaited access to courts for survivors, and attorneys will fight to make their day in court count.

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Associate

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CLAIRE BANKS

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RAJESH BARUA

Of-Counsel

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CHAD LEWIN

Of-Counsel

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