The Progress We've Made -- and Haven't Yet Made -- on Child-Sex-Abuse Statutes of Limitations: 2010, the Year in Review
By MARCI A. HAMILTON
|Thursday, December 30, 2010|
Fortunately, the pace of legal reform regarding child-sex-abuse statutes of limitations did not abate in 2010. The logic of eliminating the statute of limitations ("SOL") for this heinous crime and tort -- and of creating an SOL "window" so that past victims can come forward and receive justice -- remains irrefutable. Study after study has proven that victims typically need decades to get to the psychological place where they can come forward to tell their stories in court, and that therefore, short statutes of limitations mean there will be no justice at all. Short SOLs also mean that perpetrators and their enablers remain cloaked in secrecy, which is just what is needed to perpetuate cycles of abuse; as the years pass with perpetrators and enablers unidentified, more and more children fall prey.
Even when the need for reform is obvious from a public-policy perspective, however, the law moves forward in fits and starts. This arena is no different. In this column, I'll cover the top 10 SOL events of 2010. Some represent major steps forward; some, deeply unfortunate developments.
The primary lesson of 2010, for this area of law, is that we are still in an age of experimentation regarding SOL reform, with states implementing a variety of approaches. The other moral of the story is that the Catholic Conferences of the states (the lobbying organizations for the Catholic bishops) are still spending millions to try to stop the inevitability of SOL reform.
Ten Important 2010 Events Relating to Child-Sex-Abuse Statute of Limitations Reform
The following are ten of the most crucial child-sex-abuse SOL-related events of this past year:
1. On May 11, Florida Governor Charlie Crist signed into law a bill that eliminated the SOLs for many sex-abuse victims. The law eliminates "statutes of limitations to the institution of criminal or civil actions relating to sexual battery of a child if the victim is under 16 years of age at the time of the offense." The elimination of Florida's SOL for this crime and tort gives every child who is now being abused the ability to file charges and to go to court to obtain damages when he or she is ready. Instead of giving perpetrators and those who protect them the comfort of expired statutes of limitations, Florida has, laudably, made victims abused from the date of enactment into the future the priority.
2. Delaware enacted SOL "window" legislation for child-sex-abuse claims against medical providers. The new law arose in response to revelations about the formerly beloved pediatrician Dr. Earl Bradley, who is alleged to have abused at least 100 children as part of his practice. When the news surfaced about Bradley's alleged abuse of his patients, it became clear that many of the victims were going to be forestalled from suing by the statutes of limitations. Previously, in 2007, Delaware had enacted its Child Victims Act (CVA), which (1) eliminated the SOL for civil child-sex-abuse cases, and (2) created a two-year window during which civil child-sex-abuse cases on which the SOL had already expired could still be brought in court. The cases that were brought during that SOL window are now moving through the Delaware courts. The CVA did not cover health care providers, as it turned out, and so Delaware enacted this new window for health care providers. Delaware remains the leader in the country for the protection of child sex abuse victims.
3. On January 1, 2010, an Oregon law went into effect that significantly increased opportunities for child-sex-abuse victims to go to court. In 2009, the law -- ORS 12.117 -- was amended to extend the civil statute of limitations until the victim reaches the age of 40, or until five years after the discovery of a connection between injury and abuse, whichever period is longer. While the law did not go into effect until January 1, it fortunately applies to those victims who were injured before that date.
4. A New York Senate committee finally considered the SOL window legislation that I discussed in this column. Before 2010, the New York Assembly had passed the Child Victims Act three times, but the bill never made it to even a committee hearing in the Senate -- largely because Republican Senator Joseph Bruno (who since then has been convicted of mail and wire fraud) had killed the bill. In 2010, Senate Codes Committee Chairman Eric Schneiderman permitted the bill to be openly debated in committee and held a vote. Schneiderman (now the New York Attorney General) voted in favor. Even though the bill did not make it out of committee, the fact that it was even acknowledged in the New York Senate was progress, and the fact that a politician seeking higher office in the state voted quite publicly in favor of the bill indicates a shift in the political calculation regarding SOL reform that bodes well for victims in the future. The Catholic Conference and League also rolled out the laughable claim that their opposition to SOL window legislation somehow vindicates their "civil rights." There is no right to avoid liability for creating the conditions for child sex abuse, and for geometrically increasing the number of child-sex-abuse victims. Stay tuned for more grandiose "rights" claims as the bishops and their lobbyists come to understand that they are the Sisyphus of SOL politics and not Zeus.
5. In Michigan, battle has been very publicly joined over child-sex-abuse SOL window legislation. As usual, the Catholic Conference is lobbying against it, but the bill's proponents have found passionate sponsors and remain committed to its passage.
6. In Wisconsin, too, the battle over child-sex-abuse SOL reform continues, with victims lined up on one side and the Catholic Conference on the other. In 2010, the legislation came closer to passage than at any time in the past. A bipartisan vote sent it out of the Assembly committee, hearings in both Houses went extremely well, and the press coverage was positive. The legislation will be re-introduced.
7. In 2010, Arizona considered child-sex-abuse SOL window legislation for the first time. However, the Catholic Conference lobbied hard, and succeeded in getting the language amended so that the SOL window would have applied only against a "defendant's direct or intentional conduct." In other words, under Arizona's bill, institutional negligence or recklessness in supervising or retaining abusing employees would not have been sufficient to allow a victim to take advantage of the SOL window. This amendment was quite obviously crafted to aid religious and other private institutions in avoiding liability for their actions in covering up the identities of abusing employees, and in creating the conditions for abuse. The watered-down bill died in committee, and tragically, Arizona continues to have one of the most restrictive SOLs for child-sex-abuse victims in the country.
8. The most disreputable 2010 child-sex-abuse SOL legislative "reform" law in the United States was enacted by the South Dakota legislature. For years, Catholic clergy inflicted horrendous abuse against Native American children in St. Joseph Indian School. A defense attorney for the school crafted SOL "reform" that actually retracted options the victims otherwise would have had, under prior law. Specifically, the new law prohibits any victim over the age of 40 from suing anyone other than the direct perpetrator. Thus, even if an institution knew an employee was abusing children and did nothing about it, the institution would still be immune under the new law. The new law has shut down many meritorious cases involving Native American victims, and it represents the first instance in which Catholic lobbyists have obtained SOL reform that targets a particular ethnic group.
9. The Ohio Supreme Court turned that state's child-sex-abuse SOL law -- which was already bad for victims -- into a law that is truly terrible for victims, by rejecting tolling of the SOL when the victim has repressed the memories of abuse. Several years earlier, the Catholic bishops personally halted window legislation.
10. After earlier extending the SOL to expire only when the child sex abuse victim reaches 48 years of age, Connecticut considered this year whether to add an SOL "window," allowing a limited period of time during which victims whose claims would have been time-barred could still file their complaints. The Catholic Conference killed the bill this time -- on its first time around -- but the proponents in Connecticut have not given up. And the public debate in the press has been helpful in outing the bishops' strategies and priorities.
As the developments in these ten states show, efforts to reform child-sex-abuse statutes of limitations and bring justice to victims are very much alive and well in America. Let's hope that in 2011, even more progress is made. When it is, we will know the identities of more perpetrators. Without them, our society continues to give perpetrators easier access to our children. The bills that increase opportunities for child sex abuse victims to go to prosecutors and to sue for damages rightly should be entitled "Expose the Predators and Their Enablers Acts."
Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Her email is firstname.lastname@example.org .