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 JuristaMarch 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.
----------------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 firstname.lastname@example.org.