There was a surprising claim by Prince Andrew this week by his defense in the lawsuit from Virginia Roberts Giuffre, who claims that she was forced to have sex with him at the behest of Jeffrey Epstein. The Duke of York is arguing that Giuffre was too old at the time of the alleged sexual acts to use the New York Child Victims Act (CVA) to “revive” her claims now. He also repeats his main defense that Giuffre signed a release that bars her lawsuit against him.
Giuffre has alleged that she was the victim of sex trafficking by Epstein (who hanged himself in prison) and Ghislaine Maxwell (who is now on trial).
The motion for dismissal under Rule 12(b)(6) first and foremost relies on an alleged release of Prince Andrew from any lawsuit stemming from his involvement in the Epstein matter.
In his original motion, Prince Andrew argued that the entire action was barred under the 2009 Settlement and General Release Agreement, which allegedly included a complete release of any claims and/or potential claims against him. He argues that the court is allowed to take “judicial notice” of the agreement in light of the fact that it has been used previously in court, including the voluntary dismissal of her battery claims against Epstein’s former attorney, Alan Dershowitz in a parallel case. See Giuffre v. Dershowitz, No. 19-cv-03377-LAP (S.D.N.Y. Aug. 16, 2021). For the purposes of this dismissal motion, Prince Andrew argued that “[t]he Release Agreement must be read alongside and in conjunction with the complaint that Plaintiff filed in the Epstein Action” and used to dismiss the action.
Giuffre insists that Prince Andrew is not covered in the agreement, which was connected to the controversial resolution of the charges in Florida against Epstein. She notes that he was not expressly referenced in the agreement, but Prince Andrew maintains that “[h]ad the parties to the Release Agreement intended to release only those persons identified in Epstein’s Non-Prosecution Agreement, the language of the Release Agreement would so state.”
That does create a credible threshold defense and a tough question for the court. However, the more interesting challenge is to the use of the CVA itself. The law is needed because Giuffre’s action against Prince Andrew would be otherwise time-barred. The CVA relieves a party of that restraint, but Prince Andrew is attacking the Act itself as containing an inherent conflict.
Prince Andrew is arguing that there is an inherent conflict under state law with these claims in light of the general consent law in New York. The Act classifies those under the age of 18 as minors, but the age of consent in New York is 17.
Prince Andrew argues that
“[t]he CVA effectively strips defendants of any timeliness defense so long as the conduct over which they are sued constitutes a sexual offense under Article 130 or violations of other enumerated statutes. The threshold issue is whether Giuffre is entitled to assert her claims belatedly and without regard to the long-expired statute of limitations applicable to her tort claims.”
To put it bluntly, Prince Andrew is saying that Giuffre at 17 (and some months) was simply too old to later sue as an under-aged CVA victim:
The CVA revives claims for those who allegedly suffered harm as a result of certain sexual offenses they claim were committed against them when they were under the age of eighteen, even though the age of consent in New York is seventeen. While lack of consent is established as a matter of law for individuals who were under the age of seventeen at the time of the alleged underlying sexual offense, the issue of consent is unsettled with regard to those – like Giuffre – who were between the ages of seventeen and eighteen.”
Prince Andrew is arguing that the Act must be read in conjunction with the New York law on the age of consent and thus be limited to those under seventeen.
Moreover, Prince Andrew is arguing that the Act itself is unconstitutional given the conflict with the state age of consent. Prince Andrew earlier raised other due process objections to the CVA, but his latest motion raises this specific conflict. The earlier due process objections are less compelling since, as Giuffre points out, New York courts have previously rejected such claims. See, e.g., PB-36 Doe v. Niagara Falls City Sch. Dist., 152 N.Y.S.3d 242, 248 (N.Y. Sup. Ct. 2021); Torrey v. Portville Cent. Sch., No. 88476, 2020 WL 856432, at *4 (N.Y. Sup. Ct. Feb. 21, 2020); ARK3 Doe v. Diocese of Rockville Ctr., No. 900010/2019, 2020 N.Y. Misc. LEXIS 1964, at *15 (N.Y. Sup. Ct. May 11, 2020).
If Giuffre cannot claim the status of an under-aged victim under the Act, Prince Andrew insists that she should be required to establish unconsented to sexual relations:
In that regard, lack of consent is an element of an Article 130 offense that must be affirmatively established when the alleged victim is over the age of seventeen. N.Y. Penal Law § 130.05.1 (“Whether or not specifically stated, it is an element of every offense defined in [Article 130] that the sexual act was committed without consent of the victim.”). Giuffre and other similarly situated individuals may establish lack of consent by an “implied threat,” or, for certain offenses, by “any circumstances in which the victim does not expressly or impliedly acquiesce.” Id. §§ 130.00(8), 130.05(2)(c). These highly subjective determinations are the kind most likely to be hampered by the passage of time, as memories fade, false memories are created, and witnesses die or otherwise become unavailable.
I am not convinced that “memories fade” generally on sexual trafficking violations. Yet, there is a valid question raised on how the two laws can be read consistently.
Prince Andrew insists that, if a lack of consent must be proven, there is a paucity of witnesses: “Here, the only witnesses to the purported implied threats under which Giuffre allegedly engaged in unconsented sex acts with Prince Andrew are Epstein (deceased), Maxwell (incarcerated), Prince Andrew (the accused), and Giuffre herself.”
Of course, at the motion to dismiss stage, the facts are to be read in favor of the non-moving party (Giuffre). There are three parties who can attest to the lack of consent, even if the court finds that it must be proven due to Giuffre’s age: Prince Andrew, Giuffre and Maxwell. Even as the typical “he-said-she-said” case, the jury is allowed to reach its own judgment on who is lying.
The court will need to resolve if the inherent conflict in the use of the CVA. The court has agreed to allow amicus briefing on the CVA.
Here are some of the filings: