Friday, March 23, 2012

Constitutional Lawyer Marci Hamilton reacts to latest developments on the MA Statute of Limitations fight:

An Historic Turning Point for Reforming Statutes of Limitations for Child Sex Abuse:
News From Massachusetts, and More

Verdict - Legal Analysis and Commentary from Jurista

March 23, 2012
Marci A. Hamilton


Legions of victims of child sex abuse will tell you that when they were finally ready to talk to a prosecutor or a lawyer, the criminal and/or civil statutes of limitations (SOLs) had already expired.  Across the United States, one victim after another has been surprised by these cruel and arbitrary legal deadlines.

For decades, states have been adjusting their child sex abuse SOLs in response to fresh stories of horror.  At one time, states measured the SOL from the date of the abuse, giving victims only a few years in which to sue.  Then, they set age 18 as the moment when the clock started ticking.  Now, we have a true 50-state experiment, with a wide variety of approaches among the states.

There is one common theme, however:  States are constantly working to extend their child sex abuse SOLs, because there is always a new victim with a compelling story that shows lawmakers the folly of having any SOL at all for the heinous crime of child sex abuse.

The Situation in Massachusetts Regarding Child Sex Abuse Statutes of Limitations


That was precisely what was happening in Massachusetts when in 1996, the legislature extended the criminal SOL for child sex abuse to the date that marks 15 years after the victim turns 16.  But that SOL still shut down justice for too many victims, and so there was another extension, in 2006.  That year, the Massachusetts Legislature voted to extend the criminal SOL to 27 years after a victim turns 16.

That extension, however, still cut out victims like Rosanne Sliney, whose uncle abused her beginning when she was five, and ending when she was 14.  Another survivor, Kathy Picard, who came forward at age 32, also remains shut out by the SOLs—just missing each SOL extension, by just one year each time.  Like the vast majority of child abuse survivors, Sliney and Picard needed decades before they could come forward to talk about their abuse, and thus, they missed the state’s arbitrary limits.

Picard, along with other child sex abuse victims, is now campaigning hard to persuade Massachusetts legislators to eliminate the SOLs for child sex abuse altogether.  Right now, Massachusetts’s civil statute of limitations is only 3 years from either the victim’s 18th birthday, or the discovery of the abuse.

Massachusetts now has a bill pending that would eliminate the criminal and civil SOLs for child sex abuse, as well as beef up the penalties for the failure to report such abuse, and set new requirements for the training of mandated reporters.  That bill, H 469, also called “The Protection from Sexual Predators Act of 2011,” would, if enacted, help hundreds of victims in Massachusetts and, at the same time, identify for parents the hidden predators in their midst.  It would also make Massachusetts the most recent state, after Delaware to pass groundbreaking legislation that includes elimination of both civil and criminal SOLs for all claims into the future.

In an Increasing Number of States, the Tide Is Turning in Favor of Legislation to Abolish Child Sex Abuse Statutes of Limitations Entirely—but the Catholic Bishops Are Fighting the New Laws


Massachusetts would still have Sliney and Picard on the sidelines unless it adds a window, which would permit, for a limited number of years, those victims whose civil claims have expired a chance go to court.  Similar statute-of-limitations window legislation was passed in Minnesota, California, Delaware, and Guam, and is now pending in New York, Pennsylvania, Wisconsin, and Hawaii.

Finally, the tide is turning in favor of such legislation.  The Catholic Bishops have made the defeat of child sex abuse SOL reform a top priority in every state where it has been introduced, and particularly the window.  While they have occasionally been able to recruit allies—such as, for example, Agudath Israel in New York—the bishops are still the ones who have taken the lead on fighting against child sex abuse victims, including incest survivors (such as Kathy Picard and Rosanne Sliney), who make up the majority of survivors.

The Catholic Bishops have trotted out the same bag of arguments in each state.  First, they say it isn’t “fair” to let them be sued when “memories fade and witnesses die.”  Their narcissistic insistence that state legislators must put “fairness” to them ahead of justice for the victims speaks for itself.

Moreover, that position is primarily intended to deflect legislators from focusing on two key facts: (1) eliminating the SOL does not change the burdens of proof, which rest first on the victim; if the victim doesn’t have enough evidence to support the claim, no defense need be raised; and (2) the primary source of information on the abuse of children in organizations is typically material that is in the organization’s own files, and this is particularly true for dioceses.  Thus, the Bishops’ objection, despite its undoubted surface appeal, has no actual content.

The Bishops’ Claim That Churches Will Face “Bankruptcy” Is Spurious


Second, the Bishops always say that they will be “bankrupted” by such cases.  If they mean that they will file voluntary bankruptcy in order to reduce the payouts to victims and to flush out all victims so that they can avoid further claims in the future, then they are right.  But that would be their own choice, not a result of indigency.

If the Bishops mean that they will not have enough resources to pay the claims, they are misleading the public and their own believers.  The damages payments by the dioceses to victims so far have been paid by insurance (yes, they have insurance coverage for cases in which they have negligently supervised their employees who abuse children), and by the sale of property that is not devoted to religious use, such as office or apartment buildings, hotels, or empty lots.  The largest payout in American history came from the Los Angeles Archdiocese, which had built an extravagant cathedral at a cost of over $189 million just five years before. Thus, this argument, too, is a big fat red herring.

It is a simple fact that the Bishops, regardless of what they say in public about “fairness” and money, just don’t want the full truth to emerge into the sunshine.  There are likely hundreds of unnamed priests who abused children in the New York Archdiocese alone.  The hundreds of thousands—indeed, likely millions—of parishioners’ donation dollars that have been spent on lobbying against the New York SOL window and modest extensions is, in all likelihood, motivated most by the Bishops’ consuming and poisonous fear of the truth.

The Bishops have not turned the corner on the sexual abuse by their clergy—far from it—and they never will do so, unless they release the full truth of these matters, which is currently buried in their files.  In fact, they cannot avoid the inevitable release of the information at issue, because the truth is also carved into the hearts, souls, and memories of their victims, whose voices are rising.

Massachusetts May Be the Setting for a Key Child Sex Abuse SOL Turning Point


The turning point appears to have come in Massachusetts, where Rep. Eugene O’Flaherty did all he could to keep the SOL reform bill from making it out of his House Judiciary Committee.  Yet, after he was attacked for choosing the pedophile’s side against the safety of children, he not only backed off his original position, but resigned as Chair of the Judiciary Committee.  The bill is actually going to the House floor.  At last, a legislator so felt the heat of the victims’ pent-up agony that he chose to cut and run.

There are other legislators just like O’Flaherty, in New York and Pennsylvania and Wisconsin, who are still carrying the standard for the bishops against the victims.  But they too will have to move aside—or else embrace their role as protectors of the pedophiles.  The incest victims, our most silent of survivors till now, are joining their voices to those of the organizational victims.  They all deserve their day in court.

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Marci Hamilton, a Justia 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 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 latest book is Fundamentalism, Politics, and the Law (Palgrave Macmillan 2011) (co-edited with Mark J. Rozell). Her email is hamilton02@aol.com.
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Thursday, March 15, 2012

House Leader Sees Momentum Behind Long-stalled Child Sexual Abuse Bill


By Colleen Quinn
STATE HOUSE NEWS SERVICE

STATE HOUSE, BOSTON, MARCH 14, 2012….Rosanne Sliney was 5 years old when her uncle allegedly started sexually abusing her, abuse that would last until she was 14 years old.

When she was an adult, her uncle wrote her a letter apologizing for the alleged abuse, she said. The letter could be used as evidence against him, but the alleged crimes have passed the statute of limitations, making it impossible for her to press charges, she said.

Sliney and other childhood sexual abuse victims gathered at the capitol Wednesday pushing lawmakers to pass legislation that would eliminate the statute of limitations for sex abuse crimes against children. Advocates said they have overwhelming support among House lawmakers to get it passed, with 101 state representatives saying they favor changing the law – enough for it to pass in the 158-member House.

They asked that the bill be released from committee for debate and a floor vote in the House.

“Momentum is beginning to build a little bit for this bill,” House Majority Leader Ronald Mariano (D-Quincy) told the News Service. “We are hoping we can get something done before the end of the session.”

Sex abuse victims say the statute of limitations needs to be repealed because often they are unable to confront abusers or seek criminal charges until they are well into adulthood. The reverberations of abuse make it hard to face, and their ability to seek justice should not be hampered by a timeframe, victims say.

“We believe there should be no time clock because the effects of sexual abuse are so long-lasting and so destructive to their lives,” said Jetta Bernier, executive director of Massachusetts Citizens for Children.

In 2006, lawmakers extended the statute of limitations on sex crimes against children from 15 years after their 16th birthday to 27 years after they turn 16.

Sliney said when the statute of limitations ran out on the crimes committed against her she was 43 years old, she was hospitalized and unable to handle any criminal proceedings. Now, at 48, she feels strong enough to endure a possible trial, but the statute of limitations prevents it. She would like to see the statute abolished “so we (victims) can move forward.”

Forty-one other states have adopted laws repealing statutes of limitation for sexual abuse crimes against children, including Maine. New York, New Jersey and Pennsylvania legislators are also contemplating similar laws.

“The majority of states have done something to accommodate the fact that victims don’t come forward for years,” said Carmen Durso, an attorney with the group Coalition to Reform Sex Abuse Laws.

The bill (H 469) is in the Judiciary Committee, awaiting action since a hearing last September. It would eliminate the criminal statute of limitations for indecent assault and battery and rape for all minors; eliminate the “defense of charitable immunity” with respect to childhood sex abuse claims; and provide crime victim compensation funds for mental health treatment to childhood sexual abuse victims who report abuse as adults.

Mariano, who has filed variations of the bill since 2002, said he is pleased with the incremental progress that has been made on it over the years, including raising the statute of limitations to 27 years. This session 41 lawmakers signed on as co-sponsors. He said he plans to continue talking with the chairs of the Judiciary Committee to move it forward, and added it is an issue that resonated with him.

“In meeting with victims and talking with folks who experienced this, it becomes apparent it is a very difficult issue to deal with and it takes people an awful long time to come to grips with what happened to them,” Mariano said. “The argument that we need more time, that the statute of limitations was a barrier to bringing these criminals to justice started to take hold with me.”

A spokesman for Sen. Cynthia Creem, (D-Newton), the co-chair of the Judiciary Committee, said she has not taken a public position on the bill. It is one of several bills still before the Judiciary Committee that requires action before next Wednesday – the legislative deadline when all joint committees must report on all bills before them. A spokeswoman for House co-chair Eugene O’Flaherty (D-Chelsea) could not be reached for comment.

Middlesex District Attorney Gerard Leone also supports the bill.

“We are supportive of minimizing the effect of statute of limitations from precluding prosecution generally, but especially where it impacts vulnerable victims like children who face unique barriers against disclosure,” said Jessica Pastore, a spokeswoman for the district attorney.

Opponents of repealing the statute of limitations argue there are legal reasons for it.

James Driscoll, the executive director of the Massachusetts Catholic Conference, said his organization submitted testimony in opposition to the bill last fall. The Catholic Conference believes the statute of limitations, as currently written, is fair for both plaintiffs and defendants, he said.

“The statute of limitations provides important protections both in civil and criminal cases. The U.S. Supreme Court and the Massachusetts SJC recognize the downside or the dangers in eliminating the statutes of limitations – evidence becomes old, memories fade, witnesses die, and so forth,” Driscoll said.

“We are not speaking out against anyone who has been a victim of abuse. That is not the case,” Driscoll added.

Some oppose the idea of eliminating the charitable immunity cap. Current law protects public charities by capping compensatory damages at $20,000, but the bill would lift that immunity for cases of “intentional or negligent conduct which caused or contributed to the sexual abuse of a minor.”

The charitable cap was described as one of the “sticking points” to moving the bill along, according to advocates and staff in Mariano’s office.

Victim advocates want the cap eliminated, but other charitable organizations believe it should remain in place, including the Massachusetts Hospital Association.

“While we haven’t fully reviewed the text of HB469 or offered any comments to the committee on the bill, MHA is strongly supportive of constructive steps to address childhood sexual abuse. The charitable immunity cap was adopted by the commonwealth because it services the public interest and helps support all charitable resources that benefit our communities. That’s why it is still critically important,” Catherine Bromberg, a spokeswoman for Massachusetts Hospital Association said in an email.

Rep. Thomas Stanley (D-Waltham) and Rep. John Lawn (D-Watertown) both spoke to the group at the State House to lobby lawmakers to push for passage.

“This makes a big difference, your being here,” Stanley said. “It is only with the help of people like you that we can change this law.”

Stanley said the issue touches him because he grew up of with Sliney, a Waltham resident. It is the closest he has come to a victim who had the courage to stand up, he said.

Lawn said it is outrageous that Sliney has a letter from her alleged abuser admitting guilt, yet he is still “walking around.”

“Clearly there is something wrong with that,” Lawn said.

Friday, March 9, 2012

Waltham Native Pushes for New Sex Abuse Law

Advocates to Hold Rally on March 14
in The Waltham Patch: view here
by Ryan Grannan-Doll


A Waltham native who alleges her uncle sexually abused her when she was a child is pushing for the repeal of the criminal statue of limitaitions on sexual abuse crimes.

Rosanne Sliney, a Burlington resident who hails from Waltham, joined others on Friday, March 2, to call for the passage of a bill that would eliminate the criminal statute of limitations for sex abuse crimes.

“Hopefully … people will feel more accepting to come forward,” Sliney told Waltham Patch shortly before the rally event held at the American Legion on Waverly Oaks Road. “The people of Waltham have just been so supportive. It's been really incredibly wonderful."

Passage of the bill would encourage more alleged victims to report their abuse, Sliney said.

Sliney, who recently filed a civil lawsuit allgeging her uncle sexually abused her when she was a child, is just one of the people pushing for the passage of the bill, which she she said hopefully will gain additional support. Sliney and others are scheduled to hold a rally at the State House on Wednesday, March 14.

Despite their recent efforts, the bill has stalled in the legislature even though a majority of lawmakers on the Judiciary Committee support it, according to Jetta Bernier, the executive director of Massachusetts Citizens For Children. She made the comments during a press conference Sliney held to announce her lawsuit.

Currently, the statute of limitations expires 27 years after the alleged victim's 16th birthday, according to Bernier.

Supporters of the bill raised awareness of the issue during last week's Legion party. A survey of 151 participants indicated 77 percent had been sexually abused, according to Dee Vanaria, a friend of Sliney's helping to pass the bill. Also, participants traced the outline of their hands and plan to deliver that to lawmakers as a show of support, Vanaria said. Around $1,760 was rasied ofr the ENOUGH campaign which calls for the end of sexual abuse, according to Vanaria.

Looking ahead to the March 14 rally, Vanaria hopes passage of the bill would greatly assist victims.

“It allows that person time process it,” she said, referring to the impact eliminating the statue of limitations would have.