Cooper Erving & Savage obtained an important decision that will significantly protect victims of sexual assault in civil actions. In Lisa I. v Manikas, 183 A.D.3d 1096 (3d Dept 2020), the Appellate Division, Third Department affirmed the trial court’s decision granting a protective order pursuant to CPLR 3103(a) to bar defendants’ counsel from questioning the minor plaintiff about her past sexual history. The action involved claims of sexual assault and battery committed upon a 14-year-old girl, who was sleeping over a friend’s house. During discovery, plaintiffs’ counsel, Carlo A. C. de Oliveira, moved for a protective order, pursuant to CPLR 3103(a), to preclude defendants from questioning the child during her deposition about her sexual history and drug use. The trial court granted plaintiffs’ motion finding that the Rape Shield Law protections to victims of sexual assault in criminal proceedings applied equally to victims of sexual assault in civil actions. In affirming the trial court’s decision, the Appellate Division did not decide whether the Rape Shield Law applied to civil cases. However, the Appellate Division, in essence, brought the policy considerations of the Rape Shield Law to civil actions, thereby protecting victims of a sexual assault from being questioned about their prior sexual history in civil actions. The evidentiary significance of the Manikas decision is significant in that victims of sexual assault may seek the same protections available to sexual assault victims in criminal proceedings through the Rape Shield Law to civil action via a protective order.
