Jurisprudence

What a New State Law Could Do for Sexual Assault Survivors

Protesters hold signs saying things like, "Take rape seriously."
Protesters shout as comedian Bill Cosby arrives for trial in Norristown, Pennsylvania, on April 9, 2018. Dominick Reuter/AFP via Getty Images

If you are a woman who has been sexually assaulted, or is fighting off internet trolls, or if you have an ex threatening to share intimate photos they took of you, there is one person you want to find: Carrie Goldberg. Goldberg is a lawyer. She specializes in sex crimes. She likes suing people. For Goldberg, going to court is a powerful tool. But for years, she’s been frustrated by what she can’t do.

“I can’t count how many times we’ve had to turn somebody away from getting justice against their offender simply because it was outside the statute of limitations,” she said. “It’s a cruel thing because it takes many years, especially for victims of trauma, to be ready and stable enough to want to confront their abuser.”

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Sometimes, when she can’t sue, she’ll send a formal letter to a person she’d like to bring to court. She’ll suggest a remedy, in dollars and cents, and that works a surprising amount of the time. Even if there’s not the legal teeth to it, getting a lawyer letter can still be scary. But fortunately, now we can actually use the leverage of filing a lawsuit,” Goldberg said.

She has this new leverage because of a law that just went into effect a few weeks ago in New York state: the Adult Survivors Act. The Adult Survivors Act has attracted celebrity accusers—women like E. Jean Carroll, who says Donald Trump raped her; five different women say they now want to bring Bill Cosby back to court under this new law. Goldberg says you’re going to be hearing a lot more about fresh lawsuits over things that happened a long time ago.

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“We’ve heard from somebody whose case was three decades old. But I would  love if people in their 60s or 70s or 80s reached out to us and considered using the Adult Survivors Act,” she said, “because we know that sexual assault is not a new thing.”

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On a recent episode of What Next, I spoke with Goldberg about what happens now that New York has opened up this new way of holding sexual abusers accountable. Will it work? Our conversation has been condensed and edited for clarity.

Mary Harris: New York’s Adult Survivors Act uses something called a “lookback window”—a yearlong suspension of the civil statute of limitations—to allow people who may have been assaulted a long time ago the chance to go to the courts and demand compensation. It’s similar to what many states have done for survivors of child sexual abuse, but New York is only the second state to extend this opportunity to people over the age of 18.

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Carrie Goldberg says it is the culmination of years of reform. Lawmakers have outlawed revenge porn, gotten rid of the criminal statute of limitation for rape entirely. It used to be, if you were sexually assaulted in New York, you had just three years to file a civil case. Now, victims have two decades to go to the courts. But the problem is this new law doesn’t apply retroactively. That’s where the “lookback window” comes in.

Advocates say women need this lookback window because, as you’ve said, survivors need time to deal with their abuse, sometimes need time to even acknowledge that what happened to them was abuse. They’ve also noted that police don’t often support sexual abuse survivors. But creating a new way for survivors to file civil lawsuits seems to me like it doesn’t fix one of the fundamental problems here—the problem that police are not bringing abusers to justice necessarily, right?

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Carrie Goldberg: Yeah, it’s not aiming to fix that. The civil and the criminal justice systems really act separately. There’s parallels, but the criminal justice system is all aimed at punishing the offender, and the victim is playing the role of a star witness but has no control over whether a case is going to be investigated or brought or prosecuted or plea-dealed out. And so, the civil remedies are about compensating the victim for the harm that they sustained and the redistribution of money from the wrongdoer to the victim.

We need both. But this puts the victim in the driver’s seat. The victim gets to decide whether to bring a case. They’re not at the mercy of a DA who doesn’t like sexual assault cases or is afraid to bring them because they might lose.

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You make it sound empowering.

Yeah, it is empowering to be able to sue. That’s what our courts are for. There’s such stigma surrounding suing. Like, anybody who’s suing must be a gold digger, an opportunist. They’re just out there for the money. Well, you know what? Yeah, they deserve money. If somebody sexually assaults you—steals your autonomy and then traumatizes you for the rest of your life—they should have to pay. And in our society, as imperfect as it is, we pay with money.

A woman with brown hair, glasses, and a hands-free microphone sits on a stage in a chair.
Carrie Goldberg at an event in New York in November 2019. Ilya S. Savenok/Getty Images for Glamour
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Something else that stood out to me as I looked at the advocacy around the Survivors Act was how many of the women who were coming forward and saying that this tool would be useful to them were in a pretty privileged position. They were people like politician Andrew Yang’s wife, who’s accused a New York gynecologist of assaulting her. And then there was also a woman who accused music mogul Russell Simmons of raping her. And so it was people who were in extraordinary situations where someone also had a lot of money that they could go after. Are these relatively privileged people the ones who are going to seek accountability using this new lookback law? And is that right?

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I agree that a lot of the activists who have been promoting the Adult Survivors Act—E. Jean Carroll, Evelyn Yang—are privileged people. There’s a lot of privilege in having the time and the power to step forward and advocate publicly. Because a lot of people who are working, like, hourly jobs don’t have the ability to take the day off work to go to a press conference. Those are the same people that could really, really benefit from this law. With the Weinstein case and stuff, we think of victims as being victims of powerful people, but there are going to be victims of sexual assaults by people of all classes and backgrounds and sexual identities. Black trans people are the most likely to be victims of sexual assault. And there are institutions that are protecting their abusers that need to be held liable too.

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You said something interesting when you were interviewed by Mother Jones about this new law. You said litigation isn’t for everyone because it can be so emotionally taxing and grueling, especially because it deals with someone who may have caused you intense trauma. Can you talk about what people who are considering filing lawsuits with you are considering when it comes to their own mental health and whether they actually are candidates to move forward in this way?

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Litigation is really emotionally tumultuous. The big, fun, exciting day is when you file the lawsuit because that’s when your story is the only one that’s out there. And then very shortly after that comes the defense, where they’re going to pick your story apart. Anybody who comes to me with the goal of justice, I always say: I cannot promise justice.

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So what do you promise instead? 

I can say we can sue for money. We can sue for that person to be held responsible. But this is not going to be a Pollyanna experience where at the end of it you’re going to feel that justice was served in this simple way. Litigation is the greatest equalizer in our society when it’s working right, but it is a gladiator match. Both sides will experience pain during litigation. And any attorney that is taking these cases sure as heck better be explaining that to their clients.

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When New York passed the Adult Survivors Act, Carrie Goldberg had some decisions to make: about how she’d promote her law firm but also about how she’d move forward herself. She was inspired to represent women dealing with sex crimes because of her own personal experiences—with both revenge porn and a brutal sexual assault. Now, she is one of her firm’s newest clients. 

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It is very, very weird. I filled out my intake form the way that clients do and then I was like, “OK, when is somebody going to call me back? What’s going to happen?”

Can you briefly summarize what happened?

I’m not at a place where I can really talk about it comfortably. I matched with somebody on a dating app in 2012 and had a really horrific experience.

In her book, Nobody’s Victim, she tells this story. I think it’s important that I give you the broad outlines so you know about the kind of trauma Goldberg is wrestling with. She alleges that she went on a date with a man, and after he gave her something to drink, she began to feel out of it. He brought her to an apartment, where he didn’t just have sex with her. He also poked her with needles. It was only when she got home that she realized he’d sutured a swastika onto her body.

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It’s hard to talk about it. I can talk about my clients and what happened to them, and it’s a totally different emotional experience to talk about this. I get what our clients are going through because … rape—it’s hard to put language to it. And it’s scary. The idea of suing is scary.

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Listening to you, I get a sense of how hard it must be to file these lawsuits, and it just raises this question for me of who exactly is going to be held accountable using the Survivors Act. Not because it’s not a good idea, but because it’s so hard to get in the courtroom, retain counsel, sit for depositions, even if you’re you, even if you do this day in and day out.

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You have to really want it. And the trauma itself can be the incentive. Caring trauma around with you—I think of it as, like, this backpack that’s always on your shoulders. You can still be a really functional person and a high achiever and be able to compartmentalize the traumatic thing that happened to you, but it also can be this little engine that has a life of its own and has been taking fuel from you. And these cases really are about taking that trauma out of the backpack, and flinging some of it back onto the perpetrator, and saying, like, “I shouldn’t have to be carrying this burden alone. You’re the one who did this to me. You didn’t even know me. But you did this to me. You fucked up my life. And I’ve been carrying that around. And now I want you to feel the hell and the fear of being held accountable and having a public lawsuit against you.”

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It sounds like you’re not saying that this new lookback window or filing a lawsuit is going to help people set down the backpack permanently in any way, though. It’s just going to maybe make it a little less heavy. Hopefully. 

Yeah, I sue for a living, so when I talk about the pains and rigors of litigation, it’s important to also say that I believe in this system and I believe that offenders should have to pay and that victims should walk away with all of their money—and with the pride of having taken it. I don’t call it justice because the money is never enough. It never can take away what happened or stop the memory. It’s always incomplete. But that’s not to say that there’s not something really important and fulfilling about coming forward and holding the other person accountable and showing to society that these are true harms, making a jury decide what value they have financially. Those are all super important things. The more cases that we have that proceed forward, the more we teach society that these are true harms that people have to pay a price if they dare commit.

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The person who you’re considering suing, were they ever criminally charged for what happened between you? 

No.

If they had been, would that have changed things about where you are now in some way?

It would have. If he were in jail, it would actually be harder for me to sue him. And he’d probably be judgment-proof.

As a lawyer, do you see one punishment as more just than the other, or more effective?

The criminal justice system is so discriminatory. We’ve seen that so many predators—powerful predators—get really expensive legal representation and they can avoid criminal sentences. Historically, that’s been the case, and the civil justice system punishes them in a different way. With a criminal justice system that is arbitrary and biased about what they will investigate and prosecute, they’re pretty avoidant when it comes to taking cases to trial, and so they will settle out plea agreements, especially with people who have good representation, for pretty low sentences, relatively.

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Was that part of your calculus when you thought about what to do about this guy?

No, I was not a victim’s rights lawyer at the time, and it never occurred to me at the time that he could be prosecuted. At the end of the day, victims don’t get anything out of a criminal process. And it’s all about society punishing the criminal. And I wasn’t willing to make that sacrifice for this person. And it’s not the right decision; it’s not the wrong decision. But it was mine, and I respect people that go through the criminal system. I think it is very courageous and brave. And I also respect people that don’t want to.

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How will you know if you’re ready to file a lawsuit?

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I don’t … I mean, the one-year timeframe certainly gives me a kick in the pants to make the decision. And, also, just because we have the ability to sue doesn’t mean we have to take it. A lot of clients might decide that they want to send a pre-litigation demand, give the person the opportunity to make things right prior to a lawsuit. That’s a viable path as well. Right now I’m in that phase where I’ve committed to having a lawyer, having that lawyer reach out to my offender, and see what happens next.

Do you think they’re going to be surprised to hear from your attorney?

I have no idea. I don’t know if this person knows I exist. I mean he did that night. But I don’t have any idea. I don’t know that he knows that I’ve gone on to start a victim’s rights law firm. When he hears from my attorney, he might find this podcast and learn a little more about the impact.

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Has anyone ever said to you, because I could hear someone saying this, it’s not fair to sue someone if you haven’t taken the criminal path?

I hear what you’re saying, and no one has ever said that to me. If we had a criminal justice system that treated victims with kindness, then I think I would entertain that perspective a little bit more. But we have a criminal justice system where the majority of sexual assaults that are reported are never prosecuted. And so, I know that the system is really demoralizing and adds trauma to trauma. I don’t think we can ever begrudge somebody from deciding not to enter into that arena.

Yeah. 

And just because you’re the victim of a crime doesn’t mean you owe society that much more of yourself. You’ve  already paid through what happened to you. That wasn’t your choice. I reject that kind of judgmental perspective. And I really stand by the idea that wrongdoers have to pay and that in our society, money’s how they do it.

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