Closing Loopholes in Sexual Harassment Law

Despite testimonial and evidence against him, loopholes in sexual harassment laws have prevented charges from being pursued against former NY Atty. General Schneiderman, ramifying the importance of updating these laws.

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By Ka Seng Soo

Prosecutors have recently decided to not pursue criminal charges against former New York State Attorney General Eric Schneiderman, who was accused of physical abuse and sexual misconduct by four women in early May. Only three hours after the accusations surfaced in an article published in The New Yorker, he resigned from his position.

After the accusations against Schneiderman were published, Governor Andrew Cuomo designated Madeline Singas, the Nassau County District Attorney, to investigate the case against him. Following six months of investigation, Singas recently decided not to pursue charges against Schneiderman—but not because of a lack of witness credibility. In a statement, Singas said, “I believe the women who shared their experiences with our investigation team; however, legal impediments, including statutes of limitations, preclude criminal prosecution.” The statute of limitations prevents charges from being filed once a certain length of time has elapsed since the crime. This and the way New York State law constitutes the purposes of harassment (of which “sexual pleasure” and “sexual gratification” are omitted), are the major legal impediments allowing Schneiderman to escape criminal charges.

In order to ensure that no one is able to escape the consequences of their crimes in the future, state laws need to be amended to change the way that the statute of limitations applies to sexual harassment cases and the way the law qualifies harassment.

In New York State—as in much of the U.S.—statutes of limitations for filing a lawsuit tend to vary between one to 10 years, with some cases having no statute of limitations at all. For cases of rape, for example, the statute of limitations is non-existent. On the other hand, the statute of limitations for assault or battery in Civil Court is one year from the incident and two or five years (depending on the evidence) in Criminal Court. The most common argument for having short statutes of limitations is that they prevent a situation from arising in which the accused may no longer have in their possession the evidence necessary to defend themselves. Another piece of reasoning for the statute of limitations implies that if a plaintiff had a valid case, they would pursue it as soon as possible, so the statute of limitations prevents fake or “scam” cases from happening. This line of reasoning is flawed, however, when it comes to rape and sexual assault and violence, for which there is often a tremendous amount of stigma for survivors to come forward. Having unlimited or lengthy periods of time for people to come forward with their accusations related to sexual violence is the fairest way of dealing with such cases; yet it is only for rape cases that the statute of limitations is unending.

This becomes problematic for cases such as that of Schneiderman, in which the accusations of some of the women he is said to have abused have expired due to a statute of limitations of only two or five years. As a result, Schneiderman is protected from charges that likely have enough evidence to convict him.

Schneiderman isn’t the only person escaping charges due to statutes of limitations. Other notable examples include church leaders escaping charges for child sexual abuse allegations after The Boston Globe’s exposé in 2002 and Bill Cosby only receiving one charge of sexual assault after dozens of women came out against him. One very recent occurrence of this is seen in Harvey Weinstein, who was shielded from some of the many allegations made against him in 2017. What sets Schneiderman’s case apart from the examples above is that all of the women he abused were partners of his—already in an intimate relationship with him. This is a trend that is also seen at the national level, and according to the CDC, 51 percent of female victims of rape said they were raped by an intimate partner. This can often make it difficult for survivors to come out, as they can feel pressure from their partner to stay silent or might fall under the common misconception that perpetrators of sexual harassment can only be strangers—not colleagues, friends, or family members. This contributes to rape and sexual harassment being heavily under-reported, and the Department of Justice estimates that 63 percent of sexual assaults are not reported to the police.

Even when they are reported (and not reported past the statute of limitations), sexual harassment allegations tend not to fully fit legal definitions of harassment, especially in New York State, with some of the women abused by Schneiderman. New York State law classifies harassment as slaps, shoves, or kicks with the purpose of alarming or annoying the victim. This law lacks sexual gratification as a purpose in this list, and as a result, Singas cannot pursue certain charges against Schneiderman. Singas noted this in her statement and specifically recommended a policy change that would protect victims of sexual violence by making it illegal to hit, shove, slap, or kick someone without their consent for “the purpose of sexual arousal or gratification.” This proposal is common sense and is a necessary step toward making it easier for sexual harassment to be reported and brought to court. Unfortunately, it is unlikely that it would pass in the New York Assembly and Senate with enough time for Schneiderman to be charged.

Hopefully, though, this case can become an example as to how crucial it is to change the way that laws deal with sexual assault and harassment cases, specifically in regards to the rights we afford survivors and to the atmospheres we create for survivors to speak out against perpetrators when bringing them to justice.