Seated in the front row in Committee Room 4 of the Statehouse Annex on March 7 was Katie Brennan, the woman in the center of a Trenton maelstrom after going public with allegations of being raped two years ago by a senior official in Gov. Phil Murphy’s administration.
As dozens of sexual abuse victims testified before the Senate Judiciary Committee for five grueling hours about legislation to eliminate the civil statute of limitations for certain offenses, Brennan, seated next to her attorney, Katy McClure of Smith Eibeler in Holmdel, listened intently with a steely gaze.
As victims revealed their darkest secrets of being violated in unspeakable ways by priests, coaches, scout leaders, and family members, among others, Brennan never flinched. She herself was among the first to give testimony as the committee weighed S-477, which passed by an 8-1 vote. The Assembly version, A-3648, is to be taken up by the Assembly Judiciary Committee at 1 p.m. Monday, along with A-1711, a Sexual Assault Bill of Rights.
Brennan, 31, filed a civil suit last Jan. 7 in Mercer County Superior Court against the state and Albert J. Alvarez, who she claims assaulted her after a Murphy campaign event in April 2017. The suit is seeking damages and an emergent application to rewrite the state’s policies and practices concerning the conduct of confidential workplace investigations.
Brennan said on the day she filed she had only three months and one day left on the civil assault statute of limitations under New Jersey’s current law.
As yet there are no criminal charges against Alvarez. In December 2017, eight months after the alleged rape, the Hudson County Prosecutor’s Office announced it would not seek charges because of “a lack of credible evidence and corroboration.” The Middlesex County Prosecutor’s Office came to the same conclusion this January.
Alvarez has denied Brennan’s allegations. After Brennan’s allegations became public in a Wall Street Journal article last October, Alvarez’s attorney, John Hogan of Wilentz, Goldman & Spitzer in Woodbridge, issued a statement. “Mr. Alvarez absolutely, positively denies the allegations of sexual assault,” he said.
Brennan testified at the Trenton hearing that going through the civil courts was her only viable option left to seek justice.
“The system is not built for survivors,” she told the 11-member Senate committee. “We can accept this injustice, or we can rewrite the law. … One year and nine months after Al Alvarez raped me, I filed a civil suit.”
She outlined the personal agony she went through days after the alleged April 9, 2017, incident. Both she and Alvarez were working on the Murphy campaign at the time.
“In the days after Al Alvarez raped me, I called the police and I underwent a rape kit,” Brennan said. “To be able to take such immediate action makes me a lucky one. Many survivors need much longer.
“I pursued criminal charges, and eight months passed,” she continued. “Months of calling and seeking answers, later to learn that I should have a victim advocate guide me. For eight months under no control of my own, my two-year clock was ticking. After those eight months passed, prosecutors declined to take my case. Justice denied. No jury would hear my case. I would not have my day in court. No one would hear me.”
Brennan said she couldn’t help but think about the “what ifs.”
“What if my case had been taken? Out of 1,000 sexual assaults, approximately 230 people report, and less than five see a conviction. That is 0.5 percent, half of a percent,” she testified.
“Had the case gone to trial and had justice not been denied in the courtroom, my entire two years would have been exhausted. I would have had no option left at all,” Brennan said. “I, and almost all survivors, do not see our day in criminal court. I, and almost all survivors, watch a rapist live free while we suffer in silence. The system is not built for survivors.”
She said she spent all of 2018 pursuing a civil case.
“But it’s not that easy,” Brennan said. “It is a serious, exhausting, time-consuming, and traumatizing decision, and it can be expensive. I didn’t have the resources.
“I quickly learned that attorneys are reluctant to take ‘he said/she said’ sexual assault cases on contingency arrangements,” she added. “They cannot count on recouping their costs. I was on my own. Filing a civil suit is going public. You have to be ready.
“The courts would not hear me, and a civil jury was not yet available to me,” she said. “The [Murphy] administration would not hear me within six months to go on my statute of limitations and no hope for a civil case, I told my story to the newspaper, and then civil support became available. I am a lucky one.
“I choose to move forward because a civil lawsuit is my only remaining option to hold Al Alvarez accountable. … I chose to move forward because I’ve been denied justice in the criminal system, and if I can’t get an admission or even an apology, then a civil lawsuit is my only remaining option,” she said.
The governor’s office did not respond to emails seeking comment following Brennan’s remarks.
Employment rights attorneys say the Brennan case, like all sexual harassment cases, are complex and difficult for everyone involved.
“In the majority of our cases, the case is all about credibility,” said Kevin Costello of Costello & Mains in Mount Laurel. “There’s no smoking gun and no independent witnesses, but we do value the jury process so that is why these cases should always be in front of a jury. It’s a jury’s job to assess credibility and to be the conscience of the community. It is perfectly natural to go to a jury with just two competing versions of the facts, and the jury is asked to make a credibility decision.”
Costello said his firm takes employment cases, including sexual harassment, exclusively on contingency because “the vast majority of people done harm in the workplace, including sexual harassment, simply cannot afford noncontingency representation.”
Plaintiffs employment attorney David Ben-Asher of Rabner Baumgart Ben-Asher & Nirenberg of Montclair agreed with Brennan’s assessment that her remaining legal options were limited.
“She’s been under the review of two prosecutors who declined to prosecute,” Ben-Asher said by phone. “This is probably not a federal criminal claim that a U.S. attorney would investigate, so her remedies are civil, and the anti-discrimination statutes are the primary sources of law under which she would assert a claim.”
Ben-Asher added that for Brennan or any plaintiff to make an effective case against the state, she has to show more than the alleged act itself.
“In addition, she has to show that either the employer knew of the harassment and did not take prompt and effective steps to stop it, or that even if the employer did not know about it, the employer was negligent in failing to take steps to prevent harassment, such as anti-harassment policies, effective complaint structures, and training and monitoring mechanisms,” he said.
“Sex harassment suits against the state appear to be successful at roughly the same extent as sex suits against private employers. My experience is that the state tends to settle such claims to a lesser extent than private employers do. It seems to be an institutional pattern with all levels of government,” Ben-Asher said.