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The Case for Abolishing Child Abuse Statutes of Limitations, And For Victims' Forgoing Settlement In Favor of A Jury Trial

Thursday, Jul. 17, 2003

Recently, in Stogner v. California, the Supreme Court struck down as unconstitutional California's law retroactively lifting the statute of limitations on child abuse. The Court held that the law violated the Constitution's Ex Post Facto Clause, which prohibits certain retroactive criminal laws. The purpose of the Clause is to protect citizens from arbitrary government action changing the legal status of actions that occurred in the past.

Abuse victims were deeply and understandably upset by the decision in Stogner. As a result of the ruling, predators bound for prison got off scot free. For some, it seemed too much to bear.

But the Supreme Court had little choice. Upholding California's law would have required a rather drastic revision of the Ex Post facto prohibition.

The real fault is not with the Court, but with state legislatures. The statute of limitations for child abuse in California, and in many other states, is simply too short.

Why Child Abuse Statutes of Limitations Must Be Lengthy to Address the Crime

Some of the ugliest comments in the clergy child abuse scandal have been by defenders of the Church who have argued that since the child knows what is happening during the abuse, a short statute of limitations is fair.

Not only are their comments cruel, but their premise is inaccurate. Children often live with the ugliness of child abuse for years, held within themselves, precisely because they are not certain exactly what happened, or how to judge it. They need maturity to comprehend the situation.

It is understandably hard for a child to fully understand that the fault belonged to a trusted, revered authority figure, charged with interpreting the word of God - and not to the child himself or herself. A child's mind may find it hard to reckon with the idea that the same figures who meted out advice, and in some cases, sanctions, now deserve sanction themselves.

He or she may also wrongly feel somehow culpable in the abuse, especially if he or she did not fight against it, or tell anyone else about it. When abusers offer "love" and gifts in a bid to guarantee the child's silence, the guilt may only intensify.

For this reason, it is all the more important that the victim sees his or her abuser eventually go to prison for their crimes. Even when many years have gone by, the victims still feels a sense of justice and safety. The prison term validates the victim's experience; society's fingering the one who is really to blame frees the victim from guilt and feelings of implicitly culpability.

In light of these realities, it is only fair to extend, if not eliminate, the statute of limitations for child sexual abuse. There is no statute of limitations on murder. And because the abuse so often kills the child's innocence and childhood, the analogy is not inapt.

Some states have accordingly abolished any statute of limitations for criminal child abuse - and other states should follow their lead.

Abolishing the Statute of Limitations May Prompt Confessions

Among other benefits, abolishing child abuse statutes of limitations may prompt confessions - confessions that the victims desperately need to hear - and settlement. That is exactly what occurred in one case after California retroactively extended its child abuse statute of limitations, and before Stogner negated the extension.

The case arose when two men in their thirties came forward to allege that, as altar boys in the 1970s, they had each been abused numerous times by the same priest - Edward Lawrence Ball of Our Lady of Fatima Church in San Bernardino, California. (Neither boy had previously known about the other's abuse.)

The result was to prompt Ball to confess to molesting the boys, and also to prompt a record settlement. Under the settlement, the archdiocese and an Illinois religious order, the Missionaries of the Sacred Heart, agreed to each pay $2.1 million to the men. (The men did not settle their claims against Ball himself, however.)

After Stogner, Ball was released from jail. In theory, the Court could have demanded reconsideration of the settlement. But it did not - probably due to Father Ball's confession and the outrage prompted by the abuse he committed.

As the victims have stated repeatedly, these lawsuits are not about money. Rather, they are about teaching the Church a lesson it sorely needs to learn: It is responsible for the children who come into contact with its priests.

Settlement Versus Jury Trial: Which Is the Better Option for Victims

The resolution of the two men's case against Ball leaves open a larger question: Are settlements or jury trials the best option for child abuse victims?

One advantage of a jury trial is that it can place responsibility exactly where it belongs. For instance, the Dallas diocese lost a civil trial based on Rudy Kos's sexual abuse. The jury found that the diocese had committed fraud and engaged in a conspiracy to cover up the sexual abuse, and awarded the plaintiffs $119.6 million. When it rendered its verdict, the foreman read the following brief statement: "Please admit your guilt and allow these young men to get on with their lives." The courtroom, by all accounts, erupted in applause. (The plaintiffs later settled for $23.4 million, probably to avoid endless appeals, but the point had been made - and made very publicly.)

The recent settlement reached with the Boston archdiocese was not nearly as satisfying a vindication for victims. Originally, the agreement would have been for $30 million. But the Church - despite its ability to go after its insurer for the money - claimed it could not go on with its mission to aid other victims if it paid that much. The claim seems dubious, to say the least: Later investigation revealed approximately $160 million in land holdings alone.

In the end, the Boston settlement had victims apologizing to other victims for getting so little. They explained that they just could not go on with a seemingly endless process that prolonged the pain.

That is certainly a reasonable consideration. But victims should think twice before accepting a settlement in lieu of a trial. As difficult as a trial may be for victims, it offers an opportunity to have their community--via the jury--express its outrage on their behalf, which can have a strong healing effect. In the Dallas case, for instance, the victims - once isolated - through the trial found supporters to condemn the Church's wrongs in no uncertain terms.

Victims may, in the end, find greater satisfaction in airing the crimes and wrongs to a jury of persons from their community - not just to the attorneys negotiating their settlement. It is hard for a settlement to match the justice rendered by that Dallas jury in 1997 - and more victims should persevere to seek that kind of justice, which they deserve.

Marci Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University. Her columns on the Catholic clergy abuse scandal, and church/state constitutional issues, among other topics, can be found in an archive on this website. Her email address is

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