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Thursday, Mar. 21, 2002

The recent stream of revelations of sexual abuse committed by Catholic priests has brought a rare focus to bear on statutes of limitations, which usually occupy a little-noted corner of the criminal law. (Statutes of limitations define the time periods within which criminal or charges or civil claims must be brought.)

For decades, the Catholic Church has apparently handled cases of abuse by paying the victims (in exchange for a waiver of civil claims), insisting on gag orders, relocating the abusive priests - and taking a pass on notifying the police. The effect of these strategies has been to ensure that, in some instances, statutes of limitations for criminal charges have elapsed when the abuse is finally revealed.

But the right of child abusers to wait out the statute of limitations, and leave their emotionally damaged victims with no criminal recourse, may be about to disappear. Already, the Pennsylvania legislature is considering extending its statute of limitations for child abuse; legislators in other states will likely follow suit. While statutes of limitation in the criminal law generally make good sense, in cases of child abuse the justifications are significantly weaker.

A Spate of Clergy Abuse Cases With Time-Barred Criminal Charges

Father Geoghan of Boston was convicted of abusing a young parishioner in 1991. But the trial court also dismissed two counts of rape that had been brought against him, based on alleged acts dating from the mid-1980s, on statute of limitations grounds. A number of other cases against him may also be held to be time-barred.

Similar stories have emerged all over the country. In Connecticut, the archdiocese recently reported that it had settled 28 cases from the early 1990s involving six priests. But the district attorney's office said it had no intention of asking the Church for its files: the statute of limitations had already run. Similar cases have been reported from California to Florida.

In many of these cases, the victims had already settled civil suits with the church for millions of dollars. These settlements invariably involved confidentiality orders that impeded, if not outright prevented, prosecutors from learning about the crimes. Add to this the fact that the Church has frequently dealt with abusive priests by transferring them to different parishes without involving police and prosecutors, and it becomes clear why criminal charges were not brought.

The Purposes of Statutes of Limitation

Statutes of limitation prevent prosecutors from bringing cases that are "too old." But how old is too old? The answer varies wildly from crime to crime and state to state. In New Jersey, for example, there is no statute of limitations in child abuse cases; in contrast, in most states, these cases must be brought within five to ten years.

Statutes of limitations are intended to balance the public's need to prosecute with the defendant's need for peace of mind. Just as the legislature puts a limit on how long you can go to prison for committing a crime, it also puts a limit on how long you have to worry about whether you will be prosecuted.

The statutes also ensure that prosecutorial resources are well used. Prosecutions are not like wine: they generally get worse, not better, with age. When a prosecutor first learns of a crime is when she is in the best position to investigate and decide whether to prosecute. That is the moment when memories are freshest and evidence most accessible. If the case isn't worth prosecuting right away, it usually isn't worth prosecuting at all.

Finally, statutes of limitation protect a defendant's ability to defend himself. The prosecutor doesn't have to reveal that she's conducting an investigation in the first place; without a period of limitations, she could complete her investigation, wait until favorable evidence for the defendant -such as, for example, the testimony of his elderly, ill employer or co-worker - has faded or disappeared, and then proceed.

What Triggers the Statute of Limitation's Running, and What Stops It

Statutes of limitation generally start running from the time a crime is discovered, and they generally stop running when the government says it is ready to go to trial. (Being ready for trial is often signaled by securing an indictment.) Criminals do not get the benefit of covering their tracks: if they commit a crime in secret, the statute only starts running from when the crime was or could have been discovered.

So, for example, if a thief steals Winged Victory from the foyer of the Louvre, and replaces it with a convincing styrofoam reproduction, the statute would not start running until a loutish tourist leaned on the statute to have his picture taken, knocking it over and thereby revealing the crime.

Sometimes what's missing is not knowledge of the crime, but the criminal. In the mid 1970s, for example, domestic terrorist Sara Jane Olson and her Symbionese Liberation Army cohorts tried to murder Los Angeles police officers. She then fled Los Angeles and reinvented herself as a blameless citizen, wife, and mother. When she was finally discovered, more than twenty years later, she was duly dragged back to L.A., and pled guilty last year. Could she have invoked the statute of limitations? Absolutely not - and rightly so.

The L.A. County District Attorney's office had been ready to prosecute Olson for decades, and its failure to do so was strictly Olson's fault. Criminals do not get the benefit of hiding either the crime or themselves.

The Limits of Limitations: Why They Don't Work For Child Abuse

For most crimes, the statute of limitations never enters the picture. Prosecutors prefer to investigate crimes quickly, while the evidence is fresh. Prosecutors are also highly suspicious of victims and witnesses who report crimes long after they happen: why didn't they come forward right away?

When an old case does attract a prosecutor's attention, it's usually for a reason, like the sudden availability of an exceptionally important piece of evidence. It's rarely in a prosecutor's interest to pursue cases outside of the statute of limitations.

But cases involving children are different. At the outset, the rules governing when a statute of limitation begins to run are more complex. Child victims of abuse are usually not treated like adults in the sense that they are not expected to report the abuse.

Indeed, abused children, unlike, say, robbery victims, may not recognize that they are victims at all. Child abusers frequently tell their victims that what is happening is normal, or at least deserved; some even tell their victims that the abuse is a sign of favor. In clergy child abuse, in particular, the place that a priest and the religion he represents can hold in a child's mind may intensify the plausibility of the abuser's claims that nothing wrong is occurring.

Whether or not they see themselves as victims, abused children are far less likely to report the abuse than adults. They are ashamed, embarrassed, and confused. They have been betrayed by the adult world, and so are less likely to seek its shelter. Abusers usually tell their victims not to tell anyone else, and that can be a serious barrier.

Thus, if a child is the only person who knows about the abuse, the statute of limitations usually does not begin to run until the child becomes an adult. The problem here, of course, is that the scars of child abuse do not magically heal when victims turn eighteen.

We have long understood that our earliest experiences are our most formative. Precisely because child abuse occurs when victims are at their most impressionable, the habit of hiding pain and humiliation lasts well into adulthood. Because the very commission of the crime of child abuse diminishes the likelihood that the victim will come forward, the statute of limitations becomes in such cases more a sword for abusers than a shield.

In cases where a child does tell someone, the statute of limitation may work differently but is still troublesome. Most states require certain people - teachers, clergy, police, health care workers - to report child abuse, on pain of fines or even jail. Generally speaking, if a child tells one of these "mandatory reporters," the statute begins to run from that moment, on the grounds that there is now an adult who should report the information.

As John Geoghan's case demonstrates, however, even those obligated to report abuse may not - they may even be the abusers themselves. Geoghan's superior, Bernard Cardinal Law, was fully aware of Geoghan's history, but nevertheless repeatedly moved him to new positions in which Geoghan would come into contact with children.

We can usually count on victims to report crimes precisely because they are victims. But when a child reports abuse, the adult to whom he confides it, may have agendas of his own. And even if the adult is simply negligent in omitting to report the abuse - perhaps because he or she does not believe the child - that is a poor reason to extinguish the child's ability to ever bring a criminal case based on the abuse.

Finally, as all of these cases demonstrate, a longer period of limitations is warranted for child abuse because it is frequently not a single event. Most of us are repulsed - all day, every day - at the notion of abusing a child. Conversely, for those who find perverse pleasure in doing exactly that, the impulse is not likely to be fleeting.

It may take years for victims to summon the courage to come forward. When they do, the courts should be there for them - and for the future victims who may also suffer if the abuser is never tried and punished for his past crimes.

Barton Aronson is currently a prosecutor in Washington, D.C. Prior to that, he was in private practice in Washington, D.C. and an Assistant District Attorney in Massachusetts. The opinions expressed in this article are his own.

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