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Fourth Circuit Cites Amicus Brief Filed by ECBAWM

In an opinion issued today, the United States Court of Appeals for the Fourth Circuit quoted and relied on an amicus brief filed by ECBAWM on behalf of law professors Aziz Huq and Erwin Chemerinsky. The case involves claims brought by a former federal public defender in North Carolina who alleges she was sexually assaulted by members of the public defender’s office. The amicus brief ECBAWM filed argued that the District Court misapplied the doctrine of sovereign immunity.

ECBAWM partners Ilann Maazel and Sam Shapiro authored the brief, which can be found here.

The Fourth Circuit opinion can be read in its entirety here.

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ECBAWM Challenges Dismissal of 118 Plaintiffs’ Sex Abuse Claims Against The Ohio State University in the Sixth Circuit, Five Amicus Briefs Filed in Support of Plaintiffs

On February 2, ECBAWM filed opening briefs in the Sixth Circuit Court of Appeals challenging the District Court’s decision to dismiss cases Snyder-Hill v. OSU and Moxley v. OSU as untimely. The two cases, in which ECBAWM represents 118 plaintiff-survivors, bring Title IX claims on behalf of men who survived sexual abuse by OSU physician Richard Strauss from the 1970s to the 1990s and did not know of OSU’s role in facilitating that abuse until a whistleblower came forward in 2018. The briefs argue that the trial court erred in dismissing the claims of these survivors on the basis that they should have brought their claims when the abuse happened, because no plaintiff knew OSU enabled Dr. Strauss’ predation and most did not know that Dr. Strauss’s medical exams were actually sexual abuse.

On February 9, five organizations and scholars filed amicus briefs, or “friend of the court” briefs, in support of the appeals. The organizations and scholars include the National Crime Victim Law Institute, Child USA, Ohio Alliance to End Sexual Violence, the Rape, Abuse, and Incest National Network (RAINN), the National Women’s Law Center (NWLC), Women’s Sports Foundation, civil procedure law professors, psychology and psychiatry professors, and the National Center for Victims of Crime (NCVC). A link to and a short summary of each brief is below:

RAINN, et al:  This brief explains how schools often place their own interests ahead of student-survivors, how they may protect their interests by misleading student-survivors and not providing evidence, and how the District Court erred by not recognizing these obstacles to a sexual abuse survivor’s ability to obtain evidence of a school’s role in enabling abuse.

Psychology Professors: This brief explains some of the reasons why people do not recognize sexual abuse as such at the time it happens, and that people can still suffer serious short-term and long-term harm even when they don’t recognize what they suffered was sexual abuse.

NCVC:  This brief explains the challenges that medical patients face in recognizing sexual abuse in the physician-patient context and described numerous examples of doctors misusing the trust patients place in them to abuse patients.

NWLC, Women’s Sports Foundation, et al:  This brief explains the challenges that student-athletes face in recognizing acts of sexual abuse in the context of college athletics.

Civil Procedure Professors:  This brief explains the history of Title IX and the proper use of the federal discovery rule to analyze when plaintiffs should have discovered their claim.

The Snyder-Hill and Moxley plaintiffs are represented by ECBAWM’s Ilann M. MaazelDebra Greenberger, and Marissa Benavides, along with Scott Elliot Smith LPA and Public Justice.

 

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ECBAWM Partner Zoe Salzman Published in City & State: The Adult Survivors Act Is Needed Legislation

In an opinion piece published in City & State, ECBAWM partner Zoe Salzman draws on her experience representing sexual assault survivors to explain why the proposed Adult Survivors Act should become law. Under current New York law, the time to file a civil case for a sexual assault that happened before 2019 is usually very short.

Based on the previously enacted Child Victims Act, the Adult Survivors Act would create a new “lookback window” so that survivors whose sexual assault occurred prior to 2019 would be allowed a one-year window to revive any civil lawsuits that would otherwise be barred under the statute of limitations.

“The Adult Survivors Act passed the state Senate unanimously last spring but for unclear reasons failed to advance in the Assembly,” writes Salzman. “With a new governor at the helm and a new legislative session that began this month, New York’s leaders have another chance to pass this important law.”

Article

ECBAWM Partner Debbie Greenberger Argues for Overhaul of New York State’s Sexual Abuse Statute of Limitations

In an op-ed published in City Limits, ECBAWM partner Debbie Greenberger and co-author Andrew Shubin of Shubin Law argue that New York State must overhaul the statute of limitations for sexual abuse “to ensure that victims, no matter their age, have continuing access to the courts.”

Although the New York Child Victims Act created a two-year “window” for civil sexual assault claims that would otherwise be time-barred, this window closes on August 14, 2021. As Ms. Greenberger and Mr. Shubin point out, because of the trauma survivors experience and the actions perpetrators and their institutional enablers purposefully take to silence victims, the average age to report childhood sexual abuse is 52 years old – far after the applicable statute of limitations before the Child Victims Act.

“Continuing legal reform is urgent to prevent the statute of limitations from offering refuge to sexual abusers and the institutions—schools, health care providers, camps, athletic, and religious organizations—who protect perpetrators who present ongoing and potent dangers,” write the authors. “Victims must be able to hold institutions accountable for facilitating and covering up their employee’s sexual abuse and for their indifference to the wellbeing, and suffering, of the children in their care.”

You can read more about the closure of the New York Child Victims Act in Insider‘s article “Lawyers are rushing to file child sexual abuse lawsuits before New York’s statute of limitations goes back into effect.

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New York Times Publishes Letter from ECBAWM Partner Zoe Salzman: “Holding Rapists Accountable”

In a letter published on July 23 by The New York Times, ECBAWM partner Zoe Salzman provides additional insight into the reasons sexual assaults are frequently underreported to the police and the vital role civil lawsuits often play in providing justice for survivors.

“[Going to the police] brings up all the burdens of re-traumatization and re-victimization, with very little promise of conviction,” writes Salzman. “That means that until our criminal justice system is seriously overhauled, a civil lawsuit is often the only viable option survivors have to hold those who raped them accountable.”

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CNN, Sports Illustrated, and Other Major Media Cover Latest OSU Sexual Assault Lawsuit

Major media outlets have covered the latest lawsuit filed by ECBAWM against The Ohio State University for the role it played in facilitating and concealing the sexual abuse of student-athletes by its former employee Dr. Richard Strauss.

Press Coverage 
“Nearly 30 new alleged abuse victims sue The Ohio State University,” CNN
“More Men Were Abused by Former Ohio State Doctor, New Lawsuit Says,” Sports Illustrated
“More men were abused by former Ohio State doctor, new lawsuit says,” ESPN
“New Lawsuit: More Men Were Abused by Ohio State Doctor,” US News & World Report
“New lawsuit: More men were abused by Ohio State doctor,” Associated Press

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ECBAWM Files Third Lawsuit Against The Ohio State University for Its Role in Facilitating and Concealing Sexual Assaults

ECBAWM has filed a lawsuit against The Ohio State University (“OSU”) on behalf of 29 survivors of sexual assault by former team doctor Richard Strauss.

The plaintiffs in Moxley v. OSU include Timothy Moxley, who was abused by Strauss first multiple times as a high school student at a wrestling camp held on OSU’s campus and then again as a student athlete at OSU, and 28 other men who were sexually assaulted, abused, molested, and harassed by Strauss while he was employed by OSU.

A 2019 investigation commissioned by OSU and conducted by the law firm Perkins Coie uncovered at least 177 abuse survivors and concluded that OSU had repeatedly failed to investigate or address complaints about Strauss.

Several months later, a report commissioned by Ohio Governor Mike DeWine also concluded that OSU failed to protect or inform students – even after the school was notified in 1996 by the State Medical Board about Strauss’ conduct. Instead of working to identify other students who had been abused by Strauss, as OSU told the State Medical Board it would, the school instead destroyed the health care records of students who had been examined by Strauss.

The firm has previously filed two separate lawsuits against OSU for its facilitation and concealment of sexual assaults by Strauss: Snyder-Hill v. OSU in 2018 and Khalil v. OSU in 2019.

OSU previously admitted that Strauss committed 47 rapes and 1,429 sexual assaults of student-patients while employed by OSU.

The Moxley plaintiffs are represented by ECBAWM’s Ilann M. Maazel, Debra Greenberger, and Marissa Benavides, along with Scott Elliot Smith LPA and Public Justice.

If you have been affected by the sexual abuse at Ohio State, please call us at 212-763-5042, email ohiosurvivors@ecbawm.com, or use this form.

Press Coverage
“Twenty-nine new plaintiffs sue Ohio State over university’s knowledge of Strauss abuse,” The Columbus Dispatch

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Two Child Sexual Abuse Cases Filed Against Cold Spring Harbor High School

Cold Spring Harbor High School Class of 1982 graduates Lynda Cutbill and Susan Rule Sandler (formerly Susan Shanahan) filed complaints in the Islip federal courthouse today seeking to hold the Cold Spring Harbor School District and Board of Education accountable for enabling and emboldening the horrific and violent sexual abuse perpetrated against them by two teachers, whom the school knew to be dangerous predators of children.

According to the complaints, the District knew that Thomas Kohm, a venerated science teacher known for his Ivy League college connections, and art teacher William Kail, a talented artist in his own right who boasted about his connections in the art community and with art schools, had engaged in unchecked, predatory behavior toward its girl students for many years. Instead of firing these dangerous men or reporting their child sexual abuse crimes to the police, the District covered up the abuse.

Between 1978 and 1980, Thomas Kohm groomed, then horrifically and methodically abused, 14-year-old Susan Shanahan during her freshman and sophomore years. Kohm’s abuse included violently raping her during a school event—a 1980 Cotton Bowl Parade float competition in Dallas. Many of Kohm’s near-daily attacks occurred during the school day in a science classroom storage area.

In March of 1980, Susan reported the abuse to the District’s most powerful officials and warned them that she believed Kohm was also abusing his own children. The District made the cynical tactical decision not to report Kohm’s crimes to the police. It permitted Kohm to quietly resign. The District continued to grant Kohm access to the School after his resignation, enabling Kohm to relentlessly retaliate against Susan until her 1982 graduation. In 2003, Wade County in North Carolina convicted Kohm of the crime of indecent liberties with a child—he had sexually abused his granddaughters. He became a registered sex offender.

“I am coming forward today, not just for me, and not just for Mr. Kohm’s other victims, but also for the countless others who, like me, struggle throughout their lives to survive both the torture of being sexually abused and the paralyzing fear that asking for help, even from the adults that were charged with protecting children, would be futile and would instead be met with hostility and demeaning retaliation,” said Susan Rule Sandler. “For decades, the School District has kept what Mr. Kohm did to me in the back of my science classroom and in Dallas, along with the cruelty of how they treated me after his abuse came to light, a secret. No more. Filing this lawsuit is the next necessary step in the fight for accountability and justice.”

From 1979 through 1982, art teacher William Kail sexually abused Lynda Cutbill from the time she was in middle school until she graduated from high school. Kail used Lynda’s passion for art and ambition to be an artist to gain sexual access to her. Kail sexually abused her hundreds of times during the school day in his office and in an art storage area. The Complaint details that school administrators had been specifically told that Kail was abusing another high school girl. Instead of firing Kail, the District continued to grant him unsupervised access to the secluded areas within the school which he continued to use to abuse Lynda. The District chose silence over reporting Kail’s criminal behavior to the police or protecting Lynda.

“On an almost daily basis beginning in middle school and lasting through high school graduation, my art teacher, Mr. Kail, sexually abused me hundreds of times during my school day,” said Lynda Cutbill. “Mr. Kail weaponized my passion for art and talent as an artist by demanding that I submit to his relentless sexual assaults as a condition of him mentoring me to success as a college art student and career as an artist. Mr. Kail chose to make me his victim because he knew that my home life was tumultuous and that school officials, who had received prior reports that he sexually abused another student, would callously turn a blind eye to obvious sexual abuse danger signs. I am coming forward today because no child should ever have to endure what I did and no institution, no matter how powerful, should be permitted to benefit from their complicit silence by escaping justice.”

“I applaud Lynda and Susan for having the courage to come forward and demand accountability and justice,” said ECBAWM partner Debbie Greenberger, who, along with Pennsylvania attorney Andrew Shubin, represents the plaintiffs. “We know that they are not Kohm or Kail’s only victims. I shudder to think about how many other victims there are who have stayed silent for years, believing they were the only girl these trusted teachers abused. We encourage witnesses to contact us.”

Greenberger and Shubin credit the 2018 New York Child Victims Act, which reformed the statute of limitations to provide child sexual abuse survivors like Lynda and Susan with a window (which expires on August 14, 2021) to file civil claims and demand accountability. “All child sexual abuse victims should have access to justice,” said Greenberger, “no matter their age.”

Complaints
Cutbill v. Cold Spring Harbor Central School District, et al.
Sandler v. Cold Spring Harbor Central School District, et al.

Press
“2 women who say they were sexually abused as students at Cold Spring Harbor HS file lawsuit,” Long Island News 12 (video)
“Former Students File Lawsuit Against LI School Claiming Sexual Abuse,” NBC 4 New York (video)

Article

ECBAWM Partner Zoe Salzman Featured in Daily Beast Coverage of Trump Rape Defamation Case

As reported in The Daily Beast, the U.S. Department of Justice made clear on Monday that they intend to continue their defense of former president Donald Trump in the defamation lawsuit filed by E. Jean Carroll. On behalf of the behalf of the Rape, Abuse & Incest National Network (RAINN), the country’s largest anti-sexual violence organization, and other advocacy groups, ECBAWM previously filed an amicus brief in support of E. Jean Carroll and in opposition to the DOJ’s position that Trump is immune from suit for defamation because he was a government employee when he called Carroll a liar and said she was “not my type” after Caroll came forward to say that Trump had raped her years before he was a government employee.

The brief filed by the DOJ claims that Trump is entitled to both immunity and government-funded legal representation because he was a government employee at the time he made the statements – even though Carroll is suing Trump in his personal capacity and not in his official role as a government employee.

“It is disappointing to see this administration continue to defend Trump’s bankrupt legal position,” said ECBAWM partner Zoe Salzman, who, along with law clerk Julian S. Oppenheimer, represents the amici. “To agree with DOJ in this case is to send a chilling message to survivors of sexual assault and discourage them from holding their assailants accountable. The Second Circuit should affirm the District Court’s well-reasoned decision.”

Related Press
“Biden’s Department of Justice Is Still Taking Trump’s Side in E. Jean Carroll Case,” Jezebel

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ECBAWM Files Amicus Brief on Behalf of RAINN and Other Advocacy Groups in E. Jean Carroll Lawsuit Against Donald Trump

Today ECBAWM filed an amicus curiae brief on behalf of the Rape, Abuse & Incest National Network (RAINN), the country’s largest anti-sexual violence organization, and other advocacy groups in support of E. Jean Carroll in her ongoing defamation lawsuit against Donald Trump.

Carroll’s lawsuit alleges that after she came forward saying Trump had raped her, he defamed her, calling her a liar and saying she was “not my type.” Trump then deputized the Department of Justice to intervene in the case, and argue that Trump’s statements were Presidential and he was therefore immune from suit. The District Court rejected this argument. On appeal in the Second Circuit Court of Appeals, the DOJ continues to defend Trump, so one sexual assault survivor must now confront not only Trump, but also the might of the entire Department of Justice of the most powerful country in the world.

In support of Carroll, ECBAWM’s amicus brief argues that accepting the arguments advanced by Trump and the DOJ “would give license to all federal officials to slander and defame their victims with impunity. Such a decision would have a chilling effect on survivors of sexual violence throughout the country and would exacerbate the challenges survivors already face in holding their attackers accountable.”

“The standards set in this case will have long-term impacts on the rights and recourse available to survivors of sexual assault who are seeking justice,” said ECBAWM partner Zoe Salzman. “We are honored to join RAINN and the other organizations on this brief in a case with such far-reaching implications on this critically important issue.”

Joining RAINN on the brief are Legal Momentum, the Women’s Legal Defense and Education Fund; the National Alliance to End Sexual Violence; the National Center for Victims of Crime; the New York City Alliance Against Sexual Assault; Safe Horizon; and Time’s Up.

ECBAWM served as pro bono counsel, led by Salzman with law clerk Julian S. Oppenheimer.

Press
“Trump Rape Accuser Must Have Her Day in Court, Group Tells Judge,” Bloomberg.com

 

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