According to Wellspring, the domestic violence and sexual assault services resource for Saratoga County, 81% of women will be sexually harassed or assaulted in their lifetime. That is a sobering statistic. And it's not just women – the same nationwide survey found that 43% of men have also experienced some form of sexual harassment or assault in their lives.
In addition to emotional and physical trauma, surviving a sexual assault can bring with it a host of legal issues. This article will focus on employment and personal injury law, but readers should know that organizations like Wellspring can assist in obtaining orders of protection, accompanying individuals to the hospital or the police station, and generally help to navigate a very difficult time.
When sexual assault or harassment happens in the workplace, not only is someone's well-being at risk, but their livelihood as well. Assault and harassment are protected forms of sex discrimination and hostile work environment under both federal and state law. The law also protects employees from coercive sexual relationships, what we call “quid pro quo” sexual harassment. This is when a boss or individual with power over your employment requests sexual favors in return for continued employment or advancement.
What if an assault happens at work? Contacting law enforcement is of course always an option, and your employer should not discourage you from doing so. If the perpetrator is a coworker, you can also report the assault or harassment to your boss and Human Resources. New York law requires employers to maintain a sexual harassment policy that will lay out a complaint procedure. If the perpetrator is your boss, and your employer is large enough to have a Human Resources department or another designated individual to complain to, you can do that. If there is no one to complain to because you work at a small company, you can consider making a complaint to the EEOC or the NYS Division of Human Rights.
With respect to your legal remedies, while not all harassment is a “hostile work environment” within the meaning of the law, a sexual assault at work very likely is. Sometimes, the level of recourse you have against your employer depends upon the employer's response. If your employer responds appropriately to investigate, protect you, and discipline the perpetrator, then you may have less recourse for your lost wages if you decide to leave the workplace. On the other hand, if your employer does not take your complaint seriously, does not remedy the situation appropriately, or retaliates against you for complaining, the law may support what we call a “constructive discharge” – a situation where the employee resigns but still has legal recourse for their lost wages. Both state and federal law also allow for recovery of emotional distress damages stemming from a sexually hostile work environment.
New York law also protects victims of domestic violence in the workplace, and domestic violence can include sexual misconduct and offenses. The law not only protects victims of domestic violence from discrimination, but also requires reasonable accommodations for certain types of absences including to seek medical attention, attend court proceedings, and receive services.
Assaults, in or outside of the workplace, can also give rise to civil liability for the perpetrator. Assault, battery and false imprisonment are all civil legal claims that can be brought against the perpetrator of an assault in a lawsuit. It is important to keep in mind that these types of claims – which are called “intentional torts” – have a short one-year statute of limitations in New York. Currently, the NY Adult Survivors Act is in effect, which has reopened the statute of limitations, for a limited period of time, for sexual assault claims by individuals who were assaulted as adults. New York previously had this type of law in effect for child victims – you've likely heard about it in the context of claims of clergy sexual abuse.
Sometimes a sexual assault happens under circumstances that can also give rise to a negligence claim. These types of claims have a longer statute of limitations. An example could be suing a property owner for lax security if they know of a threat. Recently, a New York family was sued successfully for a sexual assault perpetrated by their son against a girl sleeping at their home.
Navigating the legal process and its various options after a traumatic event can be overwhelming. Luckily in our community we have resources like Wellspring, the Legal Aid Society of Northeastern New York, the Catholic Charities Domestic Violence Project of Warren and Washington Counties, and The Legal Project in Albany, as well as private attorneys, who are able to assist.
Ways to Learn More and Support Sexual Assault Survivors this Month:
Attend the She Said event on April 10: Wellspring and Skidmore College are bringing New York Times journalist Megan Twohey to the Arthur Zankel Music Center to talk about breaking the Harvey Weinstein story, one of our most infamous sexual assault and harassment cases and a catalyst of the Me Too movement. Reserve tickets at https://www.wellspringcares.org/she-said/
Denim Day: Wear denim on Wednesday, April 26 to bring awareness to the stigmas and victim blaming surrounding sexual assault. This day commemorates a (shameful) Italian court case in which the judge found that, because a young woman was wearing tight jeans at the time of her assault, she must have assisted in removing them and, therefore, the assault was consensual. The next day, the women of the Italian Parliament came to work in jeans in solidarity with the victim.
 Source: Nonprofit Stop Street Harassment Survey, Analyzed by Center on Gender Equity and Health at the University of California, San Diego (2018).