An Expensive Consequence of the Office Holiday Party: The Cost of Drunk Driving in New Jersey (Part Two)

Part Two: Trying the Case

So, once your office party/Friendsgiving/New Year’s Bash has come and gone, what comes next?  Ideally, you did not drink and drive and are, at worst, nursing a nasty hangover and deciding how to explain certain embarrassing moments.  If, however, you made a mistake and got arrested for driving while intoxicated (DWI), you have a summons to municipal court and a real journey ahead.

Trying the Case in Municipal Court

A case in the Municipal Court occurs very similarly to a case in the criminal court.  Once you have arrived in the municipal court, you have a choice–you can either plead guilty to the charges, or go to trial.  If the case goes to trial, there is discovery, motions to suppress, and other pre-trial actions which can be time-consuming and expensive.  If you plead guilty, the penalty may be reduced, or certain charges dismissed, but there will still be substantial and serious penalties.  It is important to contact a lawyer to discuss these options and find out what would be best for your particular circumstances.  This is especially true if this is not your first offense.

If you decide to go to trial, you may be able to use pre-trial motions and discovery to strengthen your case or get the case dismissed altogether.  In certain cases, the breath test results may be suppressed, which means that they cannot be admitted, including where there is evidence that the test was not properly calibrated, or where there were no reasonable grounds to perform the test.  A motion to suppress may also be granted for a blood test. Likewise, at trial, a defendant has the right to cross-examine witnesses, including the police officer that made the arrest.  If the case against the defendant is not proven “beyond a reasonable doubt,” the defendant will be found not guilty. State v. Kuropchak, 113 A.3d 1174, 1182 (N.J. 2015), citing State v. Kashi, 360 N.J. Super. 538, 544 (App. Div. 2003).

Appeal: Taking it to the Law Division

What happens if you’re convicted in Municipal Court? You may appeal the municipal court’s conviction or sentence to the Law Division. Kuropchak, supra, citing N.J. Court Rule 7:13-1 and 3:23-1.  The Law Division handles the appeal “de novo,” meaning that the case is tried again, as if the municipal trial never occurred.  Kuropchak, supra, citing State v. Johnson, 42 N.J. 146 (N.J. 1964).  If you are arrested for a DUI or have been convicted of a DWI in municipal court, you should consult a lawyer to address any appeal rights and assist you with any and all procedural requirements.

Consequences and Penalties

If you are convicted of a DWI, the consequences can be serious.  For a first offense, the penalty depends on the defendant’s blood alcohol concentration (BAC).  If the defendant’s BAC is between 0.08% and 0.10%, the penalty is a fine between $250 and $400, between 12 and 48 hours in the Intoxicated Driver Resource Center, up to 30 days incarceration, and loss of driver’s license for three monthsN.J.S.A. 39:4-50(a)(1)(i).

If the defendant’s BAC is 0.10% or above, or the defendant is found to be intoxicated on other substances, the penalty is a fine between $300 and $500, between 12 and 48 hours in the Intoxicated Driver Resource Center, potential incarceration up to 30 days, and a loss of license for a period of seven months to a yearN.J.S.A. 39:4-50(a)(1)(ii).

In either case, the court may order the installation of an ignition interlock device. N.J.S.A. 39:4-50(a)(1)(iii), P.L. 1999, c.417 (C.39:4-50.16 et al).

Your Second (or Third, or Fourth…) Time Around

What happens if this is a second or third offense or other subsequent DWI offense?  If you have had a conviction for DWI before, even if it is in another jurisdiction, you may be a repeat offender. N.J.S.A. 39:4-50.   If you have a previous conviction for refusing to submit to a breathalyzer, you may not be sentenced as a second-offense for a DWI. State v. Frye, 90 A.3d 1281, 1290 (N.J. 2014) citing Ciancaglini 10 A.3d 870 (N.J. 2011).

The New Jersey Appellate Division has recently found that even if you were previously convicted of a violation of a different subsection of the statute, you may be considered a second-time offender.  State v. Wheatley, (2016).  In that case, the court rejected a defendant’s claim that his previous conviction under subsection (g), which concerns violations committed in school zones, did not lead to a second-offense sentence for his conviction under subsection (a).  Id.

For a second offense, the penalty can be a fine between $500 and $1000, 30 days community service, 48 hours to 90 days in jail, and a loss of license for two years.  After two years, the defendant will have to re-apply for a driver’s license.  An ignition interlock device is also required.  N.J.S.A. 39:4-50(a)(2).

For a third offense, and every offense afterward, the penalty can be a fine of $1,000, incarceration for up to 180 days, and a loss of license for ten years.  The period of incarceration may be reduced up to 90 days for time spent in rehabilitation.

In addition, all penalties are higher when the DWI occurs on school property, within 1,000 feet of school property, or through a school crossing.  N.J.S.A. 39:4-50(g).  Under those conditions, the penalty for the first offense is a fine of $500 to $800, up to sixty days in jail, and a license suspension for one to two years.  For a second offense, the penalty is a fine of $1,000 to $2,000, sixty days community service, imprisonment (or community service if the court finds that appropriate) for up to 180 days (with 4 consecutive days required), and four years license suspension.  The third violation has a penalty of a $2,000 fine, 180 days incarceration (with a possible 90 days deducted for time spent in an inpatient rehabilitation program), and a 20 year license suspension.  N.J.S.A. 39:4-50.


Trying a DWI case alone can be overwhelming.  If you or a family member have been charged with a DWI, call the Fuggi Law Firm at 732-240-9095 for a free consultation, or visit us at our website www.fuggilaw.com

An Expensive Consequence of the Office Holiday Party: The Cost of Drunk Driving in New Jersey (Part One)

Part One: Before the Trial

The Holiday Season is upon us, which means that holiday celebrations involving alcohol are in full swing.  You may regret that last beer at that Friendsgiving, that extra cocktail at the office holiday party, or that third glass of champagne at the New Year’s Eve party if you are charged with a DUI or DWI this holiday season.

What Happens if You Are Pulled Over for Drunk Driving?

If you are suspected of drunk driving, either on the road, at the site of an accident, or at a checkpoint, you will likely be subjected to certain tests.  These are the field sobriety test and a breathalyzer test.  The field sobriety test often includes touching a finger to your nose, walking heel-to-toe, and standing on one foot.  However, the field sobriety test may not be undertaken if there are other signs of intoxication.

If you fail these tests or are found to have other significant signs of intoxication, you will likely be arrested, then asked to take a breath test.  In order to perform a breath test, the police officer must have reasonable grounds to believe that you have driven while intoxicated.  N.J.S.A. 39:4-50(a).  According to New Jersey statute, “[a]ny person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath…to determine the content of alcohol in his blood.”  Id.  While the test cannot be performed by force, there are penalties for refusing to take a breath test.  N.J.S.A. 39:4-50(e) and 39:4-50.4(a).

The penalties for refusal to take a breath test are: for a first offense, revocation of license for seven months to a year plus $300 to $500 in fines; for a second offense revocation of a license for two years plus $500 to $1,000 in fines; and for a third offense, license revocation for ten years plus $1,000 in fines and a required ignition interlock device.  In any revocation of license under this statute, the defendant will be referred to an Intoxicated Driver Resource Center. N.J.S.A. 39:4-50.4(a). The penalties are significantly increased if the defendant was driving on school property, within 1,000 feet of school property, or through a school crossing. N.J.S.A. 39:4-50(b).

If you refuse to take the breath test and are charged accordingly, you may wish to try the case in municipal court. In municipal court, the prosecutor must prove

by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been driving…on the public highways or quasi-public areas of this State while under the influence [of alcohol or drugs]…; whether the person was placed under arrest, if appropriate, and whether he refused to submit to the test upon request of the officer; and if these elements of the violation are not established, no conviction shall issue.

N.J.S.A. 39:4-50(a).

Blood Test

 Under certain circumstances, you may be asked to submit to a blood test.  This will likely be some time after your arrest, given that a warrant for your blood should be acquired.  Unlike a breath test, a blood test requires a warrant or “exigent circumstances.”  This was recently confirmed by the United States Supreme Court in Birchfield v. North Dakota, slip. Op. at 34.  The Supreme Court has generally held that drawing blood constitutes a higher possibility of creating privacy issues.  Missouri v. McNeely, 133 S.Ct. 1552, 1558 (2013).  The Court in McNeely ruled that the possibility that the alcohol will dissipate in the bloodstream may create exigent circumstances that would allow the drawing of blood, but that exigent circumstances are not created as a rule.  Id. at 1563.  Such exigent circumstances must be established on a case-by-case basis.  If blood is taken without a warrant or exigent circumstances, any test results will likely not be admissible in municipal or criminal court.

What is the Charge?

If you do get pulled over and charged for drunk driving, you will be specifically charged with Driving While Intoxicated (DWI).  By statute, a DWI is defined as having occurred when someone “operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant’s blood[.]”  N.J.S.A. 39:4-50(a).  According to the Division of Highway Traffic Safety, if you are driving in a way that shows impairment, you can be charged with a DWI no matter what your BAC.  (See www.nj.gov/oag/hts/downloads/dui-bro-eng.pdf.)

The number of drinks to get to a 0.08 blood alcohol concentration (BAC) depends on a person’s gender and weight, but can be 2 to 4 drinks in the average healthy woman and 2 to 5 in the average healthy man.  Each drink can be 1.5 ounces of 80 proof liquor, 12 ounces of beer, or 5 ounces of wine.  Generally, a person eliminates one drink’s worth of alcohol per hour.  (These numbers are according to a chart adapted by Lehigh University from the Pennsylvania Liquor Control Board BAC Tables.  Find at http://studentaffairs.lehigh.edu/content/bac-and-binge-drinking.)

Of course, the easiest way to avoid getting arrested for a DWI is not to drive drunk in the first place.  Don’t drink and drive, and we’ll all make it to 2017 alive, and without a summons to municipal court.

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Getting pulled over on suspicion of drunk driving can be terrifying for any driver.  If you or a family member has been arrested for driving under the influence, call the Fuggi Law Firm at 732-240-9095 for a free consultation, or visit us at our website www.fuggilaw.com.

*This post is part one of a two part series on Drunk Driving. Come back next week for part two of this series, “Trying the Case”.

A Star is Born: Examining P.S. v. J.S.

They say that every parent thinks their child is a star–but what if that star is at the center of a troublesome divorce?  In P.S. v. J.S., decided by the family court September 2, 2016, a rising star’s acting expenses were the center of a child support dispute.

The opinion in this case, which is unpublished and not legal precedent, describes a sadly common history of divorce litigation.  The court laments that the parties needed to come to court to resolve this dispute over a child’s acting expenses, and postulates that the parents may be “mutually scarred from years of time-consuming, stressful and dysfunctional litigation over countless issues.”

The dispute addressed by the court in this case was whether the non-custodial parent should have to pay for half of the child’s acting expenses, or whether these expenses were covered by the “entertainment” section of the Child Support Guidelines.

The Facts

The parties in this case have a 13-year-old child who the court called “Julie.”  The court interviewed Julie in private in 2014, at age 11, and in 2016, at age 13.  The court was impressed by Julie’s “extraordinarily deep focus on, and dedication to, theater and public performance.”  Julie discussed in the more recent interview her plan to try out for a local play and, should she get the part, rehearse every Saturday morning all summer.  She stressed to the court that any parenting time should not conflict with her acting schedule.  The court was impressed with her devotion to acting calling her “one of the most committed children this court has interviewed in years.”  Julie lives with her mother, but has a healthy relationship with both parents.

Unfortunately, acting can be an expensive enterprise.  The court understood that costs could be several hundred dollars annually, “including, but not limited to[:] clothes, travel, make-up, dues, coaching, and other ancillary expenses.”  Julie’s parents make $23,000 and $33,000, respectively, before taxes, with Julie’s father paying $113 per week in support.  Julie’s mother expressed to the court that she would be unable to pay for much of Julie’s acting expenses without additional support from her former spouse.

The Law

The family court evaluated this issue under New Jersey’s Child Support Guidelines, using the appendix as guidance.  The Guidelines are used by the courts to determine the appropriate amount of child support to be paid to the parent who has custody of the child.  The court cited Comment 8 to Appendix IX-A of the Guidelines, which stated that the costs of extracurricular activities were covered in Guideline calculations. However, the court noted that Comment 9 allowed “supplemental funds” for a “gifted” child.

The court defined a “gifted” child using Webster’s Dictionary and “human experience,” coming to the conclusion that a gifted child is one who is particularly talented or skilled at a particular area.  Those particular areas are most often “(A) academics; (B) athletics; (C) technology and (D) the arts.”

Defining what constitutes such talent or skill was somewhat murkier.  The court admitted that what one person may think is a wonderful performance, another may think the “performance to be as stale as a bucket of overpriced popcorn.”  The court was not willing to assess Julie’s talent based on watching her perform or the opinion of an expert since either method would be subjective.  Instead, the court found that Julie’s “gifted” status came from her enthusiasm for acting.  The court praised her for “want[ing] to be an achiever instead of a bystander.”  In a particularly inspiring passage, the court explained that “[i]n the real world, giftedness does not solely and exclusively apply only to one’s inborn talents or untapped natural skills, but also to one’s self-discipline, ability and willingness to commit and work hard and diligently toward a specific goal.”

The court firmly decided that Julie was a “gifted” child meriting the supplemental funds to support her acting career.  In particular, the court ruled that the parents each should pay a small additional amount which will be earmarked for acting expenses.  The court was careful to state that any additional amount must be “economically reasonable” since “[n]o matter how gifted a child may be, no parent should be compelled to spend more than he or she can reasonably afford.” Thus, the court ordered each party to contribute $250.00 apiece to be earmarked for acting expenses.  This is reasonable since it amounts to “$5 per week, or about the cost of renting an old movie in high definition.”

The Bottom Line

Beside this opinion not being legal precedent, the court explains that this is a highly fact-based ruling regarding “an isolated skill or discipline where the child demonstrates an enormous and highly impressive commitment.”  The court specifically states that the case “should not be interpreted as a ruling that a parent must pay for any extra activity that a child simply happens to ‘like’” or for “general extracurricular costs.”  In particular, the court points out that without the supplemental funds, Julie may not be able to pursue acting at all.

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New Jersey’s Child Support Guidelines can be confusing even if you don’t have a gifted child.  If you and your spouse are at odds over child support, call the Fuggi Law Firm at 732-240-9095 for a free consultation, or visit us at our website www.fuggilaw.com.

Distribution of Personal Injury and Workers’ Compensation Awards During Divorce

The question that frequently arises when people are going through a divorce is whether  my ex-spouse entitled to part of my personal injury and workers’ compensation award in the divorce?

A large part of the process in any divorce is the division of the money and property the couple has accumulated, also known as the marital property. When most people think of division of marital property, they think of things like bank accounts, retirement accounts, real estate and personal property.

Personal injury and workers’ compensation awards, however, may also be divided upon divorce.  Personal injury awards and settlements often include damages for pain and suffering, lost wages, loss of future earning capacity loss of consortium (i.e., the loss of the benefits of a family relationship due to the injuries), medical expenses and damages to property.

The question then becomes: is my personal injury or workers’ compensation award considered marital property? When answering that question, it is first important to look at whether the cause of action (i.e. the accident, injury, or medical problem) which resulted in the personal injury or workman’s compensation award occurred during the marriage. If the cause of action accrued during the marriage, it can be characterized as “marital property”. In New Jersey, all martial property is subject to division at divorce.

On the other hand, if the cause of action which led to the personal injury or workers’ compensation award occurred before or after the marriage, the award would generally be considered separate or non-marital property and is generally the sole property of the injured spouse.

What happens when a personal injury or worker’s compensation award is considered marital property?  The Court next has to decide how to divide the award. New Jersey courts follow what is called the “analytic approach”.

New Jersey’s Analytical Approach

The Analytic approach specifically evaluates the purposes of the settlement or award and the specific elements of damages and divides assets based upon what the award was intended to replace. When examining a worker’s compensation or personal injury award, the Court will look at what exactly the award was meant to compensate for.

In some instances, a personal injury or workers’ compensation award is meant to replace the financial or economic loss the underlying injury caused, i.e. an individual’s lost wages or medical expenses incurred and paid for during the marriage.

In other instances, however, the awards are non-economic and are intended to compensate for the effects of the injury. When a person is seriously injured, the injury can cause a permanent disability and inability to work. The injury can also cause loss of enjoyment of life, pain and suffering, and loss of satisfaction in life. These are non-economic injuries.

An injury can take away the enjoyment and pleasure in living daily lives: waking up without pain; drinking a cup of coffee without someone’s help; dressing a child in mismatched clothes that she insists on wearing, rather than have that child dress you; walking to the bus stop or subway in the brisk air, rather than being wheeled to a lift van; accomplishing a job well done at work, rather than being limited to a make-work project for the disabled; deciding what to make for dinner and preparing it. In addition to causing  physical pain and suffering,  injuries can frequently cause mental anguish, anxiety and often shame at being transposed from an able-bodied working person to an individual who is dependent on others.

In Amato v. Amato 180 N.J. Super. 210 (App. Div. 1981), the court noted that:

“nothing is more personal than the entirely subjective sensations of agonizing pain, mental anguish, embarrassment because of scarring or disfigurement, and outrage attending severe bodily injury… None of these, including the frustrations of diminution or loss of normal bodily functions or movements, can be sensed or need they be borne, by anyone but the injured spouse. Why, then, should the law seeking to be equitable, coin these factors into money to even partially benefit the uninjured and estranged spouse?”

The court in Amato v. Amato, 180 N.J. Super. 210 (1981)  thus held that such awards will be divided into two parts: 1) awards to the injured spouse for his or her lost wages and medical expenses incurred, and 2) awards compensating for issues such as disfigurement, pain and suffering and disability.  The Court then determined that the first award (i.e. an award for lost wages and/or medical expenses) is classified as marital property whereas the second award (i.e. an award for disfigurement, disability and/or paint and suffering) is classified as separate or non-marital property.

Using the Amato v. Amato framework, courts will need to determine whether the award is for economic or non-economic damages. Sometimes, the award itself will outline its purpose, designating exactly what each portion of funds is meant to compensate for.  In other instances, the court will need to turn to the relevant case law and statutes to determine the purpose of the award. The judge will review the facts surrounding the injury, the effect the injury will have on the injured person’s life moving forward, and whether there were lost wages or medical expenses incurred by the injured person, during the marriage, which are now being recouped and make a determination based upon the overall picture.

Division of Settlement Proceeds Received During the Marriage

What happens when a personal injury case, where the award includes monies for pain and suffering for the injured spouse and monies for loss of consortium for the remaining spouse, is settled while the parties are still married? In Ryan v. Ryan, 238 N.J. Super.21 (Ch. Div. 1993), a New Jersey court addressed this exact issue.

Specifically, in that Ryan v. Ryan, the husband’s net settlement was $182,946.96 which was allocated to defendant husband for his pain and suffering and to the plaintiff wife for her loss of consortium. The settlement check was endorsed by the parties and deposited into two separate accounts in the name of the Wife alone as custodian for each of the parties’ two children. Thereafter, the Wife withdrew portions of the funds for various purposes.  By the time of the divorce, the asset could no longer be identified and categorized. The question during divorce is whether these funds were subject to equitable distribution.  Ultimately, the court noted that commingling of separate funds for pain and suffering and loss of consortium with marital property converted those funds into marital property.

Equitable Distribution

Once the Court determines how much, if any, of a personal injury or workers’ compensation award is marital property, the Court will attempt to equitably divide the marital portion of the personal injury or worker’s compensation award as part of the general equitable distribution of assets. Equitable does not necessarily mean equal or a 50/50 split, instead it means fair. The court attempts to divide property in a way that is most fair to both parties.

In determining how to best equitably distribute the marital property, the Court looks at the following factors under N.J.S.A. 2A:34-23.1:

  • the length of the marriage
  • each spouse’s physical health, emotional health, and age
  • any income or property either spouse brought into the marriage
  • the standard of living the couple established during the marriage
  • any written prenuptial or post-nuptial agreements covering property division
  • each spouse’s overall economic circumstances
  • each spouse’s income and earning capacity (ability to earn income based on education, training, experience, length of any absence from the job market, and custodial responsibilities for the couple’s children)
  • the extent to which either spouse may have delayed pursuing career goals during the marriage
  • any time and expense required for a spouse to acquire the education or training necessary to achieve a standard of living comparable to the marital standard
  • any contributions either spouse made to the education or earning power of the other spouse
  • any contribution by either spouse to acquiring, preserving, improving, or wasting marital property, including contributions as a homemaker
  • the tax consequences of a proposed distribution
  • the present value of all property
  • the need of a parent with physical custody of a child to own or occupy the marital residence or use household effects
  • each spouse’s debts and liabilities
  • any present or future need for a medical or educational trust for either spouse or a child, and
  • any other relevant factors.

N.J.S.A. 2A:34-23.1.

Equitable distribution of personal injury and worker’s compensation awards, as well as equitable distribution in general, can be a complicated issue to address on your own. If you or your spouse have received a personal injury or workers’ compensation award and you are considering divorce, call the Fuggi Law Firm at 732-240-9095 for a free consultation, or visit us at our website www.fuggilaw.com

 

 

The Deep Scars of Sexual Abuse

According to one victim of sexual abuse: “Though I still become caught in fear and anger, each day I become more aware of the power I possess to choose love.  The most powerful words given to me during this painful process of healing came from Martin Luther King, Sr.:  ‘No matter what you do to me, I will not give you the power to make me hate.’”[i]  Those words are significant and powerful especially for those persons who have been sexually abused or suffered trauma in their life.  Many victims of childhood sexual abuse have so much pain and anger that they have difficulty functioning in everyday life.  Because the trauma is so deep and painful, many victims either keep quiet, suffer in silence or lash out in hate and rage as a result of the deep scars that have not been healed.

The problem neuroscience has taught us is “we can never erase or completely work through a traumatic experience because it remains encoded in our neurophysiology (and) there is no such thing as working something through once and for all.”[ii] These are very problematic findings that lead us to believe that many victims of sexual abuse and trauma have to live with this all the days of their lives.

It is important that we understand what the word trauma means.  Trauma means wound.  It “has come to describe an extremely distressing and harrowing personal or communal experience that exceeds our normal abilities to cope.   Traumatic experiences can leave us feeling overwhelmed, emotionally flooded, disoriented, unsure of ourselves, no longer able to trust others or our ability to perceive reality correctly.  Experiences of trauma can result in what has become known as posttraumatic stress disorder or what Judith Herman more accurately calls ‘complex post-traumatic stress disorder’ because ‘the responses to trauma are best understood as a spectrum of conditions rather than as a single disorder.’”[iii]  Understanding this diagnosis is very important.  Transforming the effects of sexual abuse or the trauma into a diagnosis of post-traumatic stress disorder is a more relevant and descriptive diagnosis than what many had thought in the past.  As it pertains to law, there is no separate category for post-traumatic stress syndrome; rather they categorize it, unfortunately, as mental insanity.  This is how these conditions have come to be misunderstood in the legislature and court system.  If we legitimized a diagnosis of trauma, we would be better able to treat those that suffer from this condition.

Data on sexual abuse victims tells us that the trauma involved is difficult not only for the victim to understand, but also to process.  Children who have experienced sexual abuse throughout their life often times try to repress their memories of the event in order to try to function in a normal way.  We know that “child victims of sexual abuse face secondary trauma in the crisis of discovery.  Their attempts to reconcile their private experiences with the realities of the outer world are assaulted by the disbelief, blame and rejection they experience from adults.  The normal coping behavior of the child contradicts the entrenched beliefs and expectations typically held by adults, stigmatizing the child with charges of lying, manipulating or imagining from parents, courts, and clinicians.”[iv]

This is an exchange between a woman and the father who abused her when she was a child.  This case is typical of the denial and accusations that victims go through when they are sexually abused. It also highlights how the abuse continues when the victim is not believed.  This is what the father wrote:

“You were a very happy child growing up.  An evil psychiatrist has implanted a hypnotic suggestion into your mind.  As your father, and as a professional, I demand that you get a new psychiatrist, an M.D.  And I want a letter from him stating that you are in his care.  If you do not do this immediately, I will sever all further relationship with you.  Love, Dad.”[v]

 

This is what the victim wrote:

“‘First of all it was not hypnotic implantation.  I remember being molested.  It’s that simple.  I remember how and when and where it happened.  It’s instant recall, Dad.  Secondly, I’m not going to change counselors.’  I told my father that I was going to heal this wound, and that I’d do it with him or without him.”[vi]

 

This  case study shows  how typical it is for abusers to not only continue  manipulating their victims of abuse,  but it also illustrates how these victims of abuse have to fight through the pain, hurt, and unbelief in order to achieve healing.

“Most persons who have been traumatized remember their traumatic experiences relatively clearly.  They’ve never forgotten them, and they have no doubt about what happened.  For others, like the woman whose exploration of her anxiety led to a revelation of childhood sexual molestation, matters are not so clear.  These persons may have gone for years – even decades – without remembering various traumatic childhood experiences.  Then, seemingly out of nowhere, images suggestive of traumatic experience start coming to mind.”[vii]  “Although the concept is controversial, repression can play a role in not remembering traumatic events.  When we deliberately avoid trying to think about something – often making matters worse – we are employing suppression. In contrast, repression is an automatic, nonconscious process that inhibits emotionally painful thoughts and memories from being elaborated in consciousness.”[viii]

Many victims of sexual abuse have used these mental techniques daily, not realizing they were causing more emotional damage.  “Sadly, trauma does not necessarily end when the traumatic situation is long past.  Many traumatized persons continue to re-experience the trauma wherever memories of the event are evoked.  Along with the memories come painful emotions and the sense of helplessness.”[ix] Additionally, “Many persons are blindsided by flashbacks that have been triggered out of the blue by some reminder of trauma.  Not uncommonly, the triggers are hard to identify, compounding fear with bewilderment.  Traumatic memories also intrude into sleep in the form of nightmares.  Flashbacks and nightmares can be relatively direct replicas of the traumatic experience.  Some traumatic events are remembered and relived with crystal clarity, in full detail, accompanied by a coherent sense of what happened.  These are prototypical personal event memories, albeit with a traumatic intensity of emotion.”[x]  Unfortunately, many victims of sexual abuse experience these phenomena on a regular basis.

These are some of the significant ramifications for those who have experienced this type of trauma.  It is regrettable that the trauma and these memories are things that many of these victims are never able to forget or get over.  Unfortunately, many times the victims do not have the resources to find competent and capable counseling in order to come to a healing place with regard to what happened in their life. In this instance, many continue this vicious cycle of abuse long after the abuse has stopped.

“A century ago, Freud labored to understand the causes of debilitating symptoms, including anxiety, depression, suicide attempts, painful physical sensations, and eruptions of intense emotions associated with images of hallucinatory vividness.  He had worked with 18 patients with such symptoms and concluded that in every instance, the symptoms were connected with sexual trauma in early childhood.”[xi]

Almost every single victim of sexual abuse that I have worked with as a lawyer, advocate and pastor had issues of anxiety, depression, suicide attempts, painful physical sensations, alcohol abuse, drug abuse, and vivid hallucinations or flashbacks.  These are commonplace for those who have been sexually abused and many times they live for years in silence with these effects.

The traumatic events and abuse disrupts an individual’s secure base and destroys the basic trust humans’ need in order to function.  It also deeply disturbs physiological regulation.  Often a kind of double whammy results here: the traumatic experience generates hyperarousal (fear, panic, pain), and when the individual is then abandoned or neglected after being injured and aroused it compounds the negative effects of the experience.[xii]

So, it is very important that a secure attachment relationship develops for the victims of sexual abuse in order for them to attain a ‘safe-haven’.  Along with physical protection, secure attachment provides a feeling of security.  The victims need to be physically safe and to feel emotionally secure enough to heal.  Trauma undermines both; a healing attachment relationship restores both.[xiii]

Without doubt, sexual abuse has significant and lasting effects on its victims.  Many victims live in silence and keep the abuse secret all their lives.  They may keep it silent, but it still has tremendous physical and psychological effects on the well-being of the whole person.  The court system and the legislature must expand the protection afforded victims of sexual abuse not only allow healing and closure, but to recognize and seek justice for their harm.

 

[i] Bass, Ellen, and Laura Davis. “Gizelle.” The Courage to Heal: A Guide for Women Survivors of Child Sexual Abuse. New York: Perennial Library, 1988. p. 446. Print.

[ii] Van Den Blink, Han. “Trauma and Spirituality.” Reflective Practice: Formation and Supervision in Ministry 28 (2008): p. 41. Print.

 

[iii] Ibid, p. 31. (internal citations omitted)

[iv] Summit, Roland, C. M.D., “The Child Sexual Abuse Accommodation Syndrome.”, Child Abuse & Neglect, Vol. 7, p 1

[v] Bass, Ellen, and Laura Davis. “Gizelle.” The Courage to Heal: A Guide for Women Survivors of Child Sexual Abuse. New York: Perennial Library, 1988. p. 453. Print.

[vi] Ibid, p. 453.

[vii] Allen, Jon G., “Memory”, Coping with Trauma: Hope through Understanding., Washington, DC: American Psychiatric Pub., 2005. p. 87. Print.

[viii] Ibid, p. 92. (internal citations omitted)

[ix] Ibid. p. 79.

[x] Ibid, p. 83-84.

[xi] Ibid, p. 88. (internal citations omitted)

[xii] Allen, Jon G., “Attachment”, Coping with Trauma: Hope through Understanding., Washington, DC: American Psychiatric Pub., 2005. p. 29. Print.

[xiii] Ibid, p. 27.

Suffering in Silence

Scott Weiland, the lead singer of the Stone Temple Pilots, was found dead at 48 years old, on his tour bus from a mix of drugs and alcohol.  The vocalist appeared to be self-medicating for numerous problems that he was facing.  The question has to be asked: Why would someone with so much talent, fame, and wealth go through life self-medicating or trying to cover up or deal with his pain?  The answer may surprise you.  Many people suffer in silence.  Weiland said, “When I was 12 years old and living in Ohio, a big muscular guy, a high school senior… (who) rode the bus with me every day to school…invited me to his house.  The dude raped me.  It was quick, not pleasant.  I was too scared to tell anyone.   (The abuser said), ‘Tell anyone, and you’ll never have another friend in this school.  I’ll ruin your reputation.’”[i]  Weiland added, “This is a memory I suppressed until only a few years ago when, in rehab, it came flooding back.  Therapy will do that to you.”[ii]

Many victims of childhood sexual abuse have so much pain and anger that they have difficulty functioning in everyday life.  Because the trauma is so deep and painful, many victims lash out in hate and rage as a result of those deep unhealed wounds.   Trauma and traumatic experiences like this that happen in early childhood can affect all aspects of life and alter life forever.  Many victims of sexual abuse suffer in silence for decades.  Many experience shameful thoughts for the things that occurred, suicidal tendencies, and a feeling of blame or hopelessness that they may have been responsible or had something to do with what took place.  Afterward, they attempt to come to grips with this emotional, mental and psychological trauma on their own, usually with poor results.

Children who have experienced sexual abuse throughout their lifetimes — much like Scott Weiland — try to avoid thinking about those traumatic memories in order to attempt to function in a normal way.  Unfortunately, in all likelihood this will do more harm than good.  Victims of sexual abuse have difficulties understanding that they are actually victims of sexual abuse, and that they have residual effects from that abuse.  Scott Weiland, like many others, said that he was “scared” and he did not want to “tell anybody”, and tried to “suppress the memories until those memories came flooding back”.  When that happens, it usually opens up a Pandora’s Box of psychological trauma for the victims of sexual abuse that they are unable to process.  Many times victims are unsuccessful in trying to reconcile why the abuse happened to them, as well as   how it is continuing to affect them.  The traumatic event has tremendous effects on not only on one’s normal behavior, but also on one’s ability to function and interact with others in daily life.  Many times the children of sexual abuse experience numerous emotions inclusive of fear, unbelief, fear of the abuser, rejection, no self-worth, or that their reputation would be ruined if it was disclosed that they were raped or sexually abused.  People they fear, out of ignorance, may think they are gay or dysfunctional if abused by a member of the same sex.  Many victims of sexual abuse go through all these stages in life without anyone knowing, understanding, caring or even helping.  They suffer in silence.

Data supports these statements that many victims of rape and sexual abuse are hesitant to come forward for reasons of shame, embarrassment, and feeling as though they might not be believed by the police or even family members; therefore, they often wait years after the abuse has ended to come forward and tell their story.[iii]  In many instances, they never come forward at all.

Unfortunately for victims of abuse, when they wait so long, sometimes for years or decades, it is very difficult for them to pursue any type of criminal prosecution or civil litigation against their abusers.  Most states carry a very harsh statute of limitations rule that only allows claims two years or less from the date of the incident, assault or injury or be barred forever from making their claim.  In very limited circumstances it can be expanded.  This is unfortunate because the standard in the law for when a person knows or fully understands they were victims of sexual abuse begins to run when that person is abused, not when they become fully aware that they were abused.

For the courts to determine a victim knew and understood they were sexually abused along with its impact on them at such an early stage is harsh and wrong.  In many instances victims do not understand what happened to them and are therefore less able to assert their legal rights for claims and injuries.  It is hard to believe that the victims, in such a short time period, are able to process the traumatic events along with the traumatic effects that it has on their lives physically, emotionally, psychologically and spiritually, until there is a significant amount of competent psychological or pastoral care and healing.  Not only do victims go through the thoughts of not being believed or stereotyped, but many times– according to data on this issue — children that have been abused go through additional harmful phases.  They go through a time of secrecy, where shortly after the assault or abuse happens, they are so traumatized by it, embarrassed by it that they choose to live in secrecy keeping this traumatic injury only to themselves not telling their parents, friends, teachers and the people closest to them.[iv]

Data on sexual abuse victims tells us that the trauma involved in sexual abuse is difficult to not only understand but also to process.[v]  Children who have experienced sexual abuse throughout their life often fall into the trap of trying to repress their memories, deny their memories, and forget their memories in order to function in a normal way.  Attempts to function in a normal way, as it relates to the trauma that they experienced, runs counter to normal healthy living.  Many victims of sexual abuse are ill-equipped on their own to deal with these issues.  They are afraid to come forward for fear of unbelief; that they are lying, and that they are manipulating and fearful of being rejected or abused again.  In their minds they process that it is better to live and suffer in silence than to talk about it or face the realities and ramifications of the abuse.

Victims may never totally forget about the traumatic event or, as stated, they try to repress it; this may go on for years or decades.  At the same time, they cannot understand why they are having functional problems with living a normal life.

Unfortunately, the law has done little to help victims of sexual abuse.  In fact, the law is becoming more difficult for victims to not only obtain the proper relief, but also to pursue their abusers in court.  There is no legal basis in the law or in the statutes for people to pursue the abusers for damages under what I believe is the proper conduit for victims of child sexual abuse.  That proper diagnosis is post-traumatic stress syndrome, not mental insanity.

The term mental insanity has so many negative connotations, not only in the legal system but also to many victims that have suffered psychological trauma from being sexually abused.  The term mental insanity suggests that the person or victim that is suffering a mental condition is somehow different then so-called normal people because they have a condition deemed socially unacceptable.  They are stereotyped and this label can be very detrimental to the healing of victims of sexual abuse.  Unlike many that have mental insanity, “which is a condition that impacts a person’s thinking, feeling or mood and may affect his or her ability to relate to others and function on a daily basis”[vi], in many cases these conditions are congenital passed down through generations; or because of a medical condition or imbalance not stemming from a traumatic event brought about through no fault of their own.

I actually believe that the law, as it stands now, perpetuates the traumatic injuries resulting from sexual abuse that are experienced by children and adults.   Victims are thrown into the vague category of mental insanity.  Trying to explain this to victims is very troubling.  A more proper category that the law should embrace is post-traumatic stress syndrome.  Under the law, we as counselors have to argue that victims of sexual abuse are mentally insane legally as the basis to toll the statute of limitations.  We have to explain to the court, based upon medical evidence, documentation, treatment records, and through testimony that the mental condition is so significant that it renders the victim powerless and useless to come forward to assert their rights under the law. The reasoning is that they are so numbed mentally by the experience that they are rendered into an almost catatonic state much like mental insanity.  As a result, they are not able to come forward and assert their rights within the two-year statute of limitation for victims of sexual assault.  The difficulty is that in a way we have to manipulate the true diagnosis of the individual in order to fill a legal standard that in many instances affects the victim’s well-being.

When victims go through the elements of post-traumatic stress syndrome, often an even more complex diagnosis develops, being called post-traumatic stress syndrome delayed.  The event and memory is delayed until it comes “flooding back.”  In many cases, it involves a continual reoccurring of the event.  The victims then experience this over and over, usually on a reoccurring basis.  They try to avoid thoughts or stimuli and many times self-medicate in order to do so.  Because of this we as lawyers are forced legally to codify these very significant and specific damaging effects into a broad category of mental insanity.  It is unfortunate that the law is still so archaic in its approach to understanding the victims of sexual abuse.  I, and others, are working to change the status of the law to repeal the statute of limitations as it relates to many of these victims so they can come forward and pursue their remedies in a court of law and also prosecute their wrong-doers, and perhaps even more importantly, educate the court system as to the true effects of abuse.

“The capacity of the mind to disassociate this may reduce the immediate pain and horror of the event, but it does so at a high cost.  Studies now demonstrate that ‘people who enter a dissociative state at the time of the traumatic event are most likely to develop long-lasting PTSD.’”[vii]  This is a very important aspect for many victims to deal with.  When victims disassociate this may initially reduce the immediate pain of the event they went through, but I believe it is akin to a snowball coming down a very large hill collecting more snow.  The snowball, although starting out small, grows in size and in devastation. When victims disassociate they do so initially in order to  try to reduce the pain,  but it begins a process of a harmful mental snowballing down a hill collecting more and more snow (mental conditions and effects of the trauma) before it ultimately leads to the absolute devastation of many of the victims we encounter.

In research about Vietnam War victims, they found similar residual effects; what is referred to as the Archetype dream.  The Archetype dream is a very typical example of a certain person or thing, a recent symbol or motif or the original pattern or model of which all things of the same kind are based.[viii]

Both Vietnam veterans and victims of sexual abuse have suffered through a horrific act that this type of dream embodies.  Both have flashbacks and mental pictures of the traumas that they experienced.  The traumatic event is replayed numerous times and each time it is horrifying and painful to relive these events even long after they are done but still, appear real.  This disrupts sleep patterns and forces the victims, whether resting or awake, to experience trauma over and over.

Many victims of sexual abuse undergo these same responses.  They have flashbacks, and are continuously brought back in time to the event of the abuse.  This can happen at any time, for any reason.  I’m reminded of one young man that I was representing.  He had been sexually abused as a young boy by the local parish priest.  This occurred when he was 10 to 12 years old.  Fast forward 30 years later, without thinking about possible mental consequences, he went to a wedding at that same church where he was abused.  The priest had long ago died but when he went into the church he started to experience tremendous anxiety, cold sweats, and fear.  He experienced a flashback for the first time in his life.  He had been abused in the balcony of this church.  He remembered this and saw the mental picture and said to me, “it felt like I was abused again.”  We must be able to bring support in the form of healing and representation for victims of sexual abuse, but without becoming so enveloped by it that we become personally involved.

This raises a significant issue for anyone involved in pastoral care, counseling or legal representation that we need to consider when dealing with victims of sexual abuse or trauma.  And that is to what extent to we become emotionally involved.  What is the line between being helpful or hurtful – to the victim and yourself? This, at times, is a very fine line and difficult to do.  We learned from the interactions in the book, A Shining Affliction, that healing can take place in both parties, victim and counselor.  We all experience injury, hurt, and rejection in our lives but we must be able to not become so personally invested that we are rendered ineffective in bringing healing.  This has happened to me in my years of practice, but now I am more cognitive of this issue.

There are several areas of law that intersect with victims of sexual abuse in being able to find healing and closure.  The general areas that need to be addressed are:

Does the law fairly and accurately understand the significant effects victims of sexual abuse have been through?

These conditions and effects that victims of sexual abuse go through are potentially devastating when left untreated.  The  Courts must take seriously their obligation to care and treat those victims of any trauma or abuse with love, care and understanding.

Without a doubt, sexual abuse has significant effects on its victims.  Many victims live in silence and keep the abuse secret all their lives.  Not only do practitioners in pastoral care, counseling and the legal system need to understand its significant effects; but more importantly, bring healing when possible.  They may keep it silent, but it still has tremendous physical and psychological effects on the well-being of the victim.  The court system and the legislature must expand the protection afforded to victims of sexual abuse not only to allow healing and closure, but to seek justice for their harm.

Let us remember so that the multitudes of victims will no longer have and continue to “suffer in silence”.

 

[i] Goodman, William. “Scott Weiland on Rape, Heroin, and Courtney Love | SPIN.” Spin. SpinMediaGroup, 17 May 2011. Web. 7 Apr. 2016.

[ii] Ibid

[iii] “Raising Awareness About Sexual Abuse.” NSOPW. The United States Department of Justice, n.d. Web. 24 Apr. 2016. <http://www.nsopw.gov/en-US/Education/FactsStatistics?AspxAutoDectedCookieSupport=1&gt;

[iv] Summit, Roland, C. M.D., “The Child Sexual Abuse Accommodation Syndrome.”, Child Abuse & Neglect, Vol. 7, p 5

[v] Summit, Roland, C. M.D., “The Child Sexual Abuse Accommodation Syndrome.”, Child Abuse & Neglect, Vol. 7

[vi] “Mental Health Conditions.” NAMI: National Alliance on Mental Illness. N.p., n.d. Web. 14 Apr. 2016. <https://www.nami.org/Learn-More/Mental-Health-Conditions&gt;.

[vii] Hunsinger, D. V. D. “Bearing the Unbearable: Trauma, Gospel and Pastoral Care.” Theology Today 68.1 (2011): 8-25. Print. pg. 13 (internal citations omitted)

[viii] “The Definition of Archetype.” Dictionary.com. N.p., n.d. Web. 18 Apr. 2016. <http://www.dictionary.com/browse/archetype?s=t&gt;.

Protection for All Our Children

New Jersey passed the Child Sexual Abuse Act in 2004.  Under the CSAA, “a…person standing in loco parentis within the household who knowingly permits or acquiesces in sexual abuse by any other person also commits sexual abuse…” N.J.S.A. 2A:61B-1.

In Hardwicke v. American Boychoir School, 188 N.J. 69 (2006), the New Jersey Supreme Court applied the above provision of the CSAA to private boarding schools. Thus, where a teacher in the private boarding school American Boy Choir School sexually abused a student, the school was also considered a “passive abuser” for permitting the sexual abuse to occur.

Thus under Hardwicke v. American Boychoir School, 188 N.J. 69 (2006), students who attend private boarding schools are given additional protections against sexual abuse. But what about those students who cannot afford to attend private boarding schools? Are children in public schools afforded the same protections?

As of right now, the New Jersey Appellate Court has said that the answer is no.  In J.P. v. Gregory Smith, — A. 3d – (App. Div. 2016), the New Jersey Appellate Division held that the CSAA did not apply to public schools.

In that case, J.P. was sexually abused by her high school assistant band director. The sexual abuse occurred in J.P.’s home, on school sanctioned (and school funded) overnight trips, and in the school itself. J.P. argued that she was entitled to the same protections under the CSAA as those children who were private boarding school students.

The issues raised in J J.P. v. Gregory Smith, — A. 3d – (App. Div. 2016) are important and concerning issues.  Shouldn’t public school students receive the same protections and rights as private boarding school students?

The Appellate Court attempted to draw a distinction between students who live at their schools and students who do not.  That is not a realistic distinction.  Todays students, like J.P., spend the majority of their day at school.

Forty-four percent (44%) of Middle and High School aged students in New Jersey start school before 8:00 a.m. and eight-five percent (85%) start school before 8:30 a.m..[i]    The average New Jersey Student has a school day of 7 hours and 6 minutes. [ii] That number does not include after school activities.  J.P. was involved in her high school band. That activity requires extensive afterschool involvement and practices.

A student involved in activities is likely to spend even more of their day at the school or on a school sponsored (and funded) activity.  Indeed, arguably many children spend more hours in a day in school or school sponsored (and funded) activities than they do in their own houses. It’s clear that when parents hand their children over to these schools, the schools stand in loco parentis for these children and the schools become like a second home.

Children are essentially treating the school as they do their own houses. They have their own private space (i.e. lockers) and belongings in the school. Students will store clothing and other items on the school premises. Students are provided with food by the school. In fact, with a start time prior to 8:30 a.m. for eighty-five percent of students, many students are frequently eating at least two meals (breakfast and lunch) at school.  Students in activities may even be eating all of their meals at the school. The school acts as a shelter for these kids and provides the support, aid, help, relief and assistance that children rely on.  Schools even provide for discipline of children, just as their parents would.

In fact, teachers and guidance counselors push students to get as involved with activities as possible, and spend more time at school, for the sake of their college applications. In the inner city and poorer areas of the state, there is a push for more school sponsored activities. The idea is that keeping children on school premises or engaged in a school activities for longer will keep them out of trouble and off the streets. Thus whether the goal is to boost a resume for a college application or to keep kids off the streets, it’s clear that the state is encouraging its students to be in school and school sponsored activities for most of their day.

How then does this match up with New Jersey’s current sexual abuse law? It doesn’t. We are simultaneously encouraging kids to spend the majority of their time in the safety and protections of our schools, while not actually providing the incentives for those schools to be safe.

Because of the passive abuser provisions of the CSAA, private boarding schools face a large disincentive for turning a blind eye to a teacher who is sexually abusing students or for failing to take the necessary precautions regarding same. Presently, under the law as interpreted in J.P. v. Gregory Smith, public schools do not have the same disincentives. They do not face the same liability.

Under the CSAA, a public day school should be considered a household just as a private boarding school is.  Although it is true that most students may not necessarily reside at their day school as they do their house, they should undeniably be protected by every adult at their school in the same fashion as they are protected by family members within their primary household and domicile, especially where, as is the case for many children, they are spending significantly more time in at their school or at school sponsored activities then they are spending in their home.

[i]http://www.njtvonline.org/news/video/around-85-of-nj-middle-and-high-schools-start-before-recommended-start-time/.

[ii] http://www.njspotlight.com/stories/14/01/16/length-of-school-day/

 

Should there be any statute of limitations on sexual abuse?

Last week, we talked about the difficulties of pursuing a case as a victim of sexual abuse because of the two year statute of limitations. While, the statute of limitations does not begin to run until the victim of the sexual abuse both realizes that he/she is a victim of sexual abuse AND relates the sexual abuse to the physical, psychological, mental and emotional harm that they have suffered, one question still remains: Should there be a statute of limitations for sexual abuse at all?

New York State is considering eliminating the statute of limitations regarding sexual abuse cases. Presently in New York, a victim of child sexual abuse MUST bring any civil lawsuit regarding same prior turning twenty three (23). The New York legislature is looking to change that and Governor Cuomo of New York is supporting that change.

Recently, the NY Daily News looked at the statutes of limitation for sexual abuse in New Jersey. See New Jersey’s victim-friendly statute of limitations law helps child sex abuse victim sue the teacher that scarred his life, decades later. The NY Daily News considered the statute of limitations in New Jersey as victim friendly. But does it go far enough?

Similar to the bills being pushed forward in New York, New Jersey has considered its own bills to end the statute of limitation for childhood sexual abuse cases such  as New  Jersey State Bill 868.

Bill 868 proposes sweeping reform as it relates to victims of sexual abuse and their access to the court system. This new bill, if passed in the New Jersey Legislature, will eliminate the statute of limitations in civil actions for sexual abuse, expand the categories of entities and individuals that may be held responsible for the sexual abuse and clarify civil actions against public entities.

If enacted, the bill would be a sweeping victory for victims of sexual abuse. These victims would then be able to pursue legal remedies without the harsh time constraints. Moreover, the elimination of the statute of limitations for sexual abuse would lift the burden on victims to demonstrate, not only that they are suffering as a result of the abuse, but also that they were unaware that their suffering was related to the sexual abuse until recently.

Presently, victims face the burden of demonstrating the repressed memories, mental trauma or delayed recognition of the abuse and its effect to be able to pursue their legal rights beyond the two years. The present system essentially asks victims, who are at their most vulnerable and may be beginning to identify their abuse, to move very quickly in filing in any action against their abuser and to pursue claims before they are ready to do so.

Thus while New Jersey is certainly more victim friendly than our neighbor, the state still does not do enough to protect victims of child sexual abuse and to encourage them to bring their cases to court only when they are mentally, emotionally, and physically prepared.

What Victims of Sexual Abuse Need to Know About New Jersey’s Statute of Limitations

Recently, a New Jersey man, J.D., filed suit against his former Spanish teacher, Ratner, for the abuse she committed against him when he was sixteen years old and a student in her class. This case was covered by the media (see i.e., N.J. teacher accused of sex with student 30 years ago placed on leave; Why this N.J. teacher is shielded from sex-with-student charge).

Many of the comments on these stories question why a student can bring a sexual assault claim stemming from sexual abuse thirty years ago. In New Jersey, the standard statute of limitations for any and all personal injuries, including sexual abuse, require that all personal injury cases commence within two years.  See N.J.S.A. 2A:14-2 and 2A:61 B-1 (b).

However, with sexual abuse, the statute of limitations is essentially put on pause where the victim has suffered from psychological, physical, mental or emotional problems as a result of the abuse and has not fully realized the scope of the abuse. The statute of limitations does not begin to run until the victim of the sexual abuse both realizes that he/she is a victim of sexual abuse AND relates the sexual abuse to the physical, psychological, mental and emotional harm that they have suffered.

Victims of child sexual assault and abuse do indeed suffer greatly. Studies that there is “a powerful relationship between our emotional experiences as children and our physical and mental health as adults….traumatic emotional experiences in childhood (grow) into organic disease later in life.”10 (Felitti, Vincent J., MD. “The Relationship of Adverse Childhood Experiences to Adult Heath: Turning Gold into Lead.” Kaiser Permanente Medical Care Program., n.p., 2002. Web. ).  Many victims of childhood sexual abuse experience alcohol abuse, drug abuse, chronic depression, morbid obesity, diabetes, hypertension, coronary artery disease and many other effects.

In the case of J.D., the sexual abuse by his Spanish teacher continued for nine years and she twice became pregnant. Both pregnancies ended in abortions. Following the abuse, J.D. continued to be involved with Ratner and her family. However, in 2013, J.D. started to have intense and frequent panic attacks. He had to be hospitalized and was diagnosed with depression and anxiety disorder.

The diagnosis prompted counselor’s visits and treatment that ultimately resulted in a breakthrough on May 14, 2015, during which J.D. realized sexual abuse was to blame for his emotional issues. Because J.D. did not realize that he was a victim of sexual abuse and that sexual abuse was the cause of his ongoing psychological and emotional harm until May 14, 2015, the statute of limitations on J.D.’s case did not begin to run until May 14, 2015.

J.D.’s delayed realization that the “relationship” he experienced was actually sexual abuse is not uncommon. Data on sexual abuse victims tells us that the trauma involved in sexual abuse is difficult to not only understand but also to process. (Summit, Roland, C. M.D., “The Child Sexual Abuse Accommodation Syndrome.”, Child Abuse & Neglect, Vol. 7). Many children who are victims of sexual abuse will repress or deny their memories in order to function in daily life. Many victims of sexual abuse are ill-equipped on their own to deal with these issues. They are afraid to come forward for fear of unbelief; that they are lying, and that they are manipulating and fearful of being rejected or abused again.