13

Jun

2008

The State of SOL Reform

Written by: Marci A. Hamilton

 

Pennsylvania is the latest battleground in the reform of Statutes of Limitations for child abusers.

Read Marci Hamilton on FindLaw every Thursday

There is a national grassroots movement to eliminate the civil and criminal statutes of limitations (SOLs) on child sex abuse. Why? Because survivors of such abuse typically take decades to come forward. There was a time when most states had extremely predator-friendly SOLs like Alabama’s current limit of 2 years from the date of the event (yes, an abused 7-year-old must get a lawyer by the age of 9 in Alabama).

A handful of states have abolished the civil and criminal statutes of limitations altogether, e.g., Alaska, Maine, and Delaware. Some do not impose such limitations on felonies in criminal prosecutions while others set a wide variety of limits in civil cases, with Alabama coming in at 2 years from the event, other states giving victims 2 years from the age of majority (18), and a few others, establishing more generous deadlines. Suffice it to say that the vast majority of victims do not win the race against the SOLs and are shut out of the courthouses.

The movement for abolition is relatively new, though states have been gradually lengthening SOLs in this arena for years. In most states, the legislatures have set a limit at one point in time and then been faced with the next awful case, where the predator is immune due to the statute of limitations, spurring further extension. Basic justice has been driving these seriatim extensions.

California and Delaware have enacted “window legislation,” which suspends even expired civil SOLs for a year or two to give victims an opportunity to come forward. Without this civil window legislation, we have an army of predators who have never been publicly identified and who continue to abuse most happily under a blanket of anonymity.

Unfortunately, it is unconstitutional to enact a window for criminal SOLs. California tried as much but was told by the United States Supreme Court, in a close decision, that criminal SOLs cannot be revived in light of the Ex Post Facto Clause. That means our only tool for identifying predators who have benefited by overly short statutes of limitations is civil window legislative reform.

When window legislation is added to the elimination of all civil and criminal SOLs going forward, the odds of our learning the identities of more predators goes up precipitously. At the same time, victims get the opportunity they deserve to have their day in court.

This is, by necessity, a state-by-state movement, because the SOLs for child sex abuse are almost exclusively state law. (The federal government eliminated SOLs for felonies involving child sex, but has relatively few laws that are relevant.) But it is decidedly national in its reach.

For the millions of sex abuse survivors who would jump at the possibility of getting to court to name their predators and receive a public declaration that the abuse was not their fault, news coverage has been spotty at best. Even though there is no question this is a nationwide story and movement, the story has only been covered in city newspapers in the states where legislation is pending.

In every state where the legislation has been proposed, sexual abuse survivors have been at the forefront pushing for the law. They succeeded in California and Delaware, but were soundly beaten back in Ohio, Colorado, and Maryland. They are currently fighting in Pennsylvania, New York, Wisconsin, and the District of Columbia, and starting to fight in other states.

I wrote Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008) to tell the moving story of survivors of child sex abuse trying to find some means of justice. The first half lays out their case, while the second half details the determined opponents to sexual abuse survivors.

The latest development occurred in Pennsylvania, where the forces against survivors won an initial battle in the war to open the courthouse doors. Rep. Lisa Bennington proposed window legislation this term. The bill was locked in committee by the House Judiciary Committee Chair, Rep. Thomas Caltagirone. Victims, along with the Philadelphia District Attorney Lynne Abraham, and others like myself, held a press conference on May 12, 2008, in Harrisburg, Pennsylvania, asking for one simple thing: that the House Judiciary Committee would hold hearings for the victims of sexual abuse to tell their stories.

Caltagirone responded violently, saying that victims sought nothing but money. He did not want to hear from them and clearly wanted them to go away. His priority, instead, was unnecessary surgery for dogs, for which he had scheduled hearings. (One can hardly divine all of the motives of those who so forcefully oppose learning about the needs of sex abuse victims, but one small hint could lie in the 2004 story in the Philadelphia newspapers involving one of his employees filing sexual harassment charges against him.)

That was when Louise Bishop of the Committee on Children & Youth declared that she would sponsor hearings in that committee. Given the jurisdictional rules in the House, that hearing could not speak directly to the pending bill, but the committee certainly could hear the stories of victims. The hearing was scheduled for Thursday, June 12, exactly one month following the press conference.

Victims were contacted and made travel arrangements. There was cautious optimism among Pennsylvania survivors (and out-of-state folks as well who hope that another state might get the ball rolling their own state). While the necessary committee was still stonewalling them, at least they could move the ball forward by explaining in public hearings their suffering and their need for meaningful justice.

Then the hearings were cancelled. Why? No straight answer has emerged yet. To be sure, it seems obvious that the Catholic Conference and/or the insurance industry were primary sources of pressure. As I explain in Justice Denied, they usually are.

The way the SOLs have operated, they have silenced victims as they have empowered predators to approach more victims under cover of secrecy. They have exhibited a clear choice by legislators for the predators over the victims.

The Pennsylvania legislature is the latest to choose the preators over the victims, but this movement is just beginning and there is no reason to expect that the issue will disappear. The logic is too compelling and the need is too great.

Remember, Marci’s FindLaw column runs every Thursday.

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