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The (Court)room Where It Happens: Forum Selection in the Sex Abuse Lawsuit Against Prince Andrew

Justine DeSilva (J.D. Candidate, Class of 2024) is a Contributor to Travaux. She is primarily interested in sexual and gender-based violence issues, both domestically and in the scope of international law and human rights. Justine holds a B.A. in Comparative Studies in Race and Ethnicity with Honors in the Arts from Stanford University and an M.Sc. in Gender from the London School of Economics and Political Science (LSE). In her free time she enjoys musical theater and embroidery.

Photo available here.


Introduction:


On February 15th, the United Kingdom’s Prince Andrew, Queen Elizabeth II’s second son and the Duke of York, settled a civil lawsuit filed against him for the alleged sexual abuse of an American minor in the early 2000s. The plaintiff, Virginia Giuffre, sued the prince for allegedly sexually abusing her on multiple occasions and in different countries when she was 17 years old. At the time of these alleged incidents, Giuffre was being sex-trafficked by notorious trafficker Jeffrey Epstein and his co-conspirator, ex-girlfriend, and employee Ghislaine Maxwell, both of whom were close personal friends of the Prince. Giuffre first came forward about Prince Andrew when she filed a defamation lawsuit against Epstein and Maxwell, but the documents were only unsealed in 2019. Since then, the story has dominated international news headlines and spurred endless discussion on social media platforms. The flames were fanned even further by an interview the Prince gave to the BBC to proclaim his innocence. British news outlets denounced this appearance as a “car crash.” Despite this, Giuffre didn’t file an official case against the Prince until August 9th, 2019. Giuffre chose to file this case in federal court in the Southern District of New York (S.D.N.Y.), a jurisdiction that includes New York City.


Widespread media coverage has dealt only piecemeal with the complicated legal questions arising from this case, and there have been no sources comprehensively explaining the legal process involved in choosing the proper court. The purpose of this article is simple: to explain the international dynamics at play here when Giuffre selected the court, or “forum,” for suing a foreign prince for sex abuse.


Part I: Background of the Allegations


Before tackling the legality of forum selection, it is essential to provide context for this case. Virginia Giuffre was just 16 years old and working at Trump’s Mar-a-Lago resort in Florida when she was first approached by Ghislaine Maxwell. After luring Giuffre to Jeffrey Epstein’s home under the guise of a job interview, Maxwell instead began instructing Giuffre on how to massage Epstein’s naked body. Giuffre feared how powerful the two of them were; Epstein was a billionaire financier and Maxwell was a well-connected British socialite. Guiffre, on the other hand, was a child who had been in and out of foster care, had already experienced sexual and physical abuse, and was incredibly vulnerable. Maxwell and Epstein quickly coaxed these details out of her and capitalized on them to trap Giuffre into a years-long cycle of subsequent sex abuse. They also passed Guiffre around to their powerful friends “like a platter of fruit.” One such friend was allegedly Prince Andrew.

According to the complaint, Maxwell, Epstein, and Prince Andrew forced a 17-year-old Giuffre to engage in sex acts and intercourse with the Prince on multiple occasions: at Maxwell’s London home, at Epstein’s New York City mansion, and on Epstein’s private island in the US Virgin Islands. During each of these instances of abuse, Giuffre was “compelled by express or implied threats,” at times from the Prince himself, to engage in these acts. In addition to sexual assault and battery, the complaint accuses Prince Andrew of causing “significant emotional and psychological distress and harm” that continues to affect Giuffre to this day.


Part II: S.D.N.Y. as a Proper Venue


  1. New York vs. US Virgin Islands vs. the United Kingdom

Giuffre chose to bring this case in S.D.N.Y., which encompasses Epstein’s Manhattan mansion at 9 East 71st Street. In theory, Giuffre could have sued in New York, in the US Virgin Islands, or in the United Kingdom, since instances of the alleged abuse took place in all three locations. In fact, one of the major pieces of evidence is a photograph allegedly taken in the UK at Maxwell’s London home immediately prior to one of the alleged incidents. In the photograph, Prince Andrew has his arm wrapped around Giuffre’s waist, with Maxwell smiling in the background. This photograph has been so widely disseminated that, in his aforementioned interview with the BBC, Prince Andrew himself fielded questions about it.

However, civil claims in either the US Virgin Islands or the UK would likely have been time-barred, due to the nearly twenty years that elapsed from the alleged events to the time of the filing. In the US Virgin Islands, there is no statute of limitations for the criminal prosecution of felony child sex abuse claims and the statute of limitations for the criminal prosecution of misdemeanor child sex abuse claims is 1 year. To file a civil suit in the US Virgin Islands, however, Giuffre would’ve only had until her 23rd birthday to file her civil claim, which passed in 2006. Bringing her claim in England would have given her slightly more room for discretion. Giuffre would have had until her 21st birthday to file her civil claim, which passed in 2004; however, the court has discretion to allow such a claim to be brought, even if the statute of limitations has expired. In making this determination, a court must consider a list of factors laid out in the Limitation Act of 1980 33(3)(a), including “the length of, and the reasons for, the delay.” The court is then tasked with deciding whether the reasons given are equitable enough to justify extending the limitation period. In England and Wales, there is no statute of limitations for criminal prosecution of child sexual abuse.


In this case, considering the defendant is one of the most senior figures of the British monarchy, it is unlikely that a court would grant such an extension. Though the royal family has more often been on the plaintiff’s side of legal action (especially in regards to media and invasion of privacy), it is extremely rare for a British royal to be a defendant. It is not difficult to imagine that the Crown and its interests would have exerted immense pressure (at least behind closed doors or implicitly) on the courts not to grant such an extension. Attempting to bring the case in the UK would therefore have resulted in an uphill legal battle for Giuffre to even get the case admitted in the first place.


On the other hand, Giuffre’s claim was not time-barred in S.D.N.Y. Former governor Andrew Cuomo (who has since resigned due to allegations of his own sexual misconduct) signed New York state’s Child Victims Act into law in 2019, which specifically addressed this issue. The Child Victims Act briefly lifted the statute of limitations in civil actions for sex offenses against minors. Originally, the statute of limitations in New York began to run when the victim turned 18, which for Giuffre would have been in the summer of 2001. Giuffre would have had between one and five years to file her civil claim. The Act temporarily lifted the statute of limitations completely so that survivors of any age could file their civil claims in the two-year window from August 13th, 2019 to August 13th, 2021. This was referred to as a “lookback window.” Giuffre filed her complaint within the last week of this window, on August 9th, 2021. Starting on August 14th, 2021, the Act permanently amended the statute of limitations so that survivors are allowed to bring civil actions until they reach the age of 55. Even if she had continued to wait, Giuffre would’ve had until August 2038 to file her claim in New York, which likely would not have been the case in either of the other potential forums.


2. Federal vs. State Court


Giuffre filed her case in federal court, despite invoking New York state laws on the sexual abuse of minors. She did this because there was diversity jurisdiction over the parties. The first requirement to establish diversity jurisdiction is showing that no plaintiff shares a domicile with any defendant; the goal is to avoid any prejudice an out-of-state defendant might face from a legal action in state court. Domicile is an important term here: it is defined as the “true, principal, and permanent home” of the citizen. In this case, diversity of citizenship was met because the parties were domiciled in a US state on one side of the action and in a foreign country on the other side of the action. Prince Andrew resides permanently in the United Kingdom, and Giuffre is an American citizen who claims residency in Colorado. The second requirement for diversity jurisdiction is that the amount being sued for is greater than $75,000. The amount in controversy, as stated in the complaint, was over $75,000, though Giuffre left the exact amount “to be determined at trial.”

Despite meeting the threshold for diversity jurisdiction at first glance, there was an issue of residency that emerged–but it was not about Prince Andrew. The Prince’s American attorney, Andrew B. Brettler, tried multiple strategies to get the case dismissed, one of which was filing a motion calling Virginia Giuffre’s US residency into question. The motion, which was filed in late December, claimed that Giuffre had actually lived in Australia for all but two of the last nineteen years. It also claimed she had been living consistently in Australia since at least 2019 with her husband and children, indicating her intent to remain. . The motion requested that discovery in the case be halted until Giuffre’s true domicile could be attained through a specific two-hour deposition.


An individual’s legal domicile is determined based on their residency at the time a case is filed. See Padilla-Mangual v. Pavia Hosp., 640 F. Supp. 2d 128 (D.P.R. 2009). Whether a citizen intends to remain in that particular place indefinitely is also relevant. Giuffre’s lawyer responded to the motion by highlighting the timing of it: the Prince and his counsel had months to contest Giuffre’s domicile, but chose to file this motion two weeks before the court was slated to rule on the Prince’s motion to dismiss (which had been filed in October 2021). This is not a strong legal argument–if it’s true that Giuffre was not actually domiciled in Colorado at the time of the filing of the complaint, and had no intention to return permanently to the US, federal court would not actually be the proper venue for her case. Giuffre’s lawyer seems to peripherally acknowledge this; he writes that if their contention happened to be correct, Giuffre would just refile in New York state court and the case would continue regardless. However, the judge denied the Prince’s motion on December 31st, 2021. Judge Kaplan stated that the Prince’s counsel had not yet officially raised a defense of improper venue–the motion was not a motion to dismiss, just essentially a motion to delay discovery on the Prince.


The issue of Giuffre’s true domicile did not progress, which could be for a variety of reasons. It would make the most sense to assume it was due to either: 1) the satisfactory nature of the domiciliary documents provided by Giuffre, or even more likely 2) the Prince’s increasing fear of being deposed under oath and/or of Giuffre’s counsel continuing discovery. Either way, a quick settlement was reached, thus extinguishing the final controversy over the proper forum for this case.


Conclusion:


There is not adequate space in this article to delve into the other substantial international legal hurdles this case faced before it was settled. Among them were the difficulties Giuffre’s lawyers faced in personally serving Prince Andrew with documents, the court’s inability to compel Prince Andrew to appear in or comply with the case, the question of enforcing the case’s outcome in the UK, and the question of sovereign immunity. However, the intention here was to provide a brief glimpse into the international legal considerations at play in this case’s very existence, and hopefully further transparency through legal analyses of these additional issues is forthcoming.


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