Professor Marci A. Hamilton - Statute of Limitations -

Hawaii and Massachusetts Lead the Way for Access to Justice for Child Sex Abuse Victims While the Worst States Do Nothing by Marci A. Hamilton - SOL-reform.com This is another good year for the victims of child sex abuse in a number of states, including Hawaii, Massachusetts, and Florida, and it's not over yet. It is also the year that the states with some of the worst statutes of limitations and most troubling sex abuse scandals—New York and Georgia--continue to sit on their hands. While humankind has struggled with child sex abuse since time immemorial, we did not understand the dynamics of our trivialization of child sex abuse until the Boston Globe revealed in 2001 that respected Church leaders were creating safe havens for pedophiles.

Unwittingly, the legal system (here and abroad) abetted the problem with short SOLs that meant that perpetrators could access many victims without consequence because once a victim was ready to seek justice, the courthouse doors were locked.  These SOLs also played into the hands of institutions intent on protecting their image, like the Catholic Church, Penn State, Horace Mann, Yeshiva University, and many others.

Starting in 2003, with California's one-year “window”--during which the SOLs were eliminated for survivors even if they had expired--the United States has been at the forefront in the world for leveling the playing field for sex abuse victims by extending and eliminating SOLs, which simply permit victims to bring their cases to court.  They still have to prove their case.

In recent years, one-third of the states has dramatically extended or eliminated the civil SOLs altogether, while nearly three-fourths have eliminated at least some of the relevant criminal SOLs. Bills were introduced in numerous states in 2014, including California, Florida, Georgia, Hawaii, Iowa, New Jersey, New York, and Pennsylvania.

The Best So Far:  Hawaii

Hawaii has become the most progressive state in the country when it comes to granting access to justice for child sex abuse victims—by removing the arbitrary SOL deadline victims have to get to court.  It had already enacted a window, which revived SOLs for victims from April 2012 until April 2014.   Now Governor Neil Abercrombie has signed a bill that extends that same window for two  more  years and eliminates the criminal SOLs going forward.   That gives Hawaii a better window than even Delaware had, which had a 2-year window and eliminated both criminal and civil SOLs.

How did Hawaii do this?  It was a righteous combination of the Women's Legislative Caucus and the relative powerlessness of Hawaii's Catholic Conference.  Nor did it hurt that the cases filed during the window educated legislators, the Governor, and the public about the horrific harm done to Hawaii's children, which no one knew until the lawsuits were filed.  The cases against Jay Ram in particular should transform every legislator into a proponent of reviving and eliminating SOLs.

Great Progress Against Perpetrators While the Catholic Bishops Throw Their Own Victims Under the Bus:  Massachusetts

The Massachusetts legislature joined the vanguard increasing access to justice for child sex abuse victims against their perpetrators this week by unanimously passing innovative SOL reform.  Gov. Patrick Deval is expected to sign the bill in the near future.   While this is a great step forward, the Catholic bishops' fingerprints are on it.  The new law increases the SOL for lawsuits against the abusers,  but not the institutions that shielded them , among which is the Roman Catholic Church, as legislators there well know.

Massachusetts has taken the most innovative route this year, and other states should take note.   Under the leadership of its relatively new Joint Judiciary Committee Chair, Senator William Brownsberger, for the first time since the crisis started, permitted an SOL civil reform measure to go forward.   Rep. John Lawn energetically led the charge in the House.  The new Massachusetts law is a testament to their persistent grit as well as the untiring efforts of Massachusetts survivors and child advocates.

Before now, Massachusetts halted sex abuse civil lawsuits at age 21 or three years after the victim discovered or should have discovered the connection between the abuse and current problems.  The new law provides a retroactive, permanent extension to age 53 for suits against perpetrators (not the institutions who created the conditions for the abuse).  Or, in English, it lets anyone who is 53 or under sue the person or persons who sexually abused them – even if their SOL already expired.

The Massachusetts law does provide a modest extension for survivors against institutions.  It extends the discovery rule against institution-based abuse from 3 years to 7 years, and, like the extension to age 53 against perpetrators, it is retroactive.   Thus, if someone discovered a connection between her current problems and the abuse over 3 years ago, but less than 7 years ago, the claim will be revived.

One need not be Einstein to figure out why there would be more generous SOLs against perpetrators than the institutions that made the abuse possible.  The Catholic Conference (the lobbying arm of the bishops) in each state has invested heavily in trying to blocking access to justice for child sex abuse victims, and the bishops were at the table for this bill.

This Massachusetts development proves that the bishops remain ruthless in blocking reasonable retroactive SOLs against them.  Why?  On the surface it may appear it is the money, and that is what they usually say, but in fact it is the humiliating release of information still hidden in secret archives across the country--as the SOL windows have proved in California, Delaware, Hawaii and Minnesota.  The Los Angeles archives, for example, demonstrated that Cardinal Roger Mahony actively shielded perpetrators from law enforcement despite his decades of protestations to the contrary.  In Minnesota, there has been an avalanche of information about ongoing cover up even after the dioceses were required to improve their policies, endangering children until today.

Given most bishops' typical block-all-SOL reform mindset, the Massachusetts development shows them acting with more integrity toward victims of incest and other close family predators.  Perhaps Cardinal Sean O'Malley figured out, ahead of his brethren, that their self-protective lobbying in fact placed them on the side of the pedophiles and incestuous perpetrators. They simply had to stop lobbying against all sexual abuse survivors and future child victims.  Accordingly, the Massachusetts bishops blinked and stepped back to permit more generous access to justice for victims at least against their perpetrators, but this new Massachusetts law spotlights them still throwing their own victims under the bus when it comes to their responsibility.

While this SOL law could have been better, if there is anything that the legislative process teaches us, it is that the perfect can be the enemy of the good.  Now, for the next stage, the decent people of Massachusetts need to wake up and speak up to extend the SOL against institutions, because the buck finally stops in the pews and the voting booth.

A Good Future for Children with the Elimination of All Civil and Criminal SOLs:  Florida

While Florida has yet to revive expired SOLs, and so cannot claim the mantle owned by Hawaii and Delaware, this year it eliminated the criminal SOLs for lewd or lascivious offenses committed upon or in the presence of a child less than 16 years old to add to its elimination of the civil and criminal SOLs in April 2010. For the children abused in Florida today, no arbitrary time line will prevent them from pressing charges or filing a lawsuit.  Florida also has a relatively decent discovery rule and so a number of victims abused at least as far back as the 1990s can pursue civil justice.

Great Year for Pot, Pedophiles, and the Bishops:  New York

Powerful and pricey New York lobbyist Patricia Lynch has successfully navigated the New York legislature to obtain a victory for medical marijuana. Governor Andrew Cuomo is expected to sign the bill, which is modeled on Colorado's. At the same time, she has been credited with the New York bishops' ongoing success in keeping their sex abuse victims out of court.

Assemblywoman Marge Markey has introduced a bill to increase victims' access to justice for the past 8 years, and was able to get it passed in the Assembly 4 times. Lynch, on behalf of Cardinal Timothy Dolan--who sits on what must be the largest undisclosed secret archive in the country because of the stingy SOLs--and his fellow New York bishops, has halted the bill in the Senate every single year.

Everyone knows that if Governor Cuomo put this issue on his agenda, New York's children might have a chance at safety, but he is nearly somnolent on it so far.  Cuomo, the Senators, and Lynch ought to read the poll done by the National Center for Victims of Crime (“NCVC”), which shows that a significant majority of New Yorkers favor the victims on this issue, not the bishops. As one of the very worst states for victims in the country, New York has much to do.

The one ray of light in an otherwise dark sky for New York's victims is that Cuomo recently lambasted the Democratic senators, like Sen. Jeffrey Klein, who have given the Republicans majority control without a majority in the Senate. (Only in New York could this happen.) Republicans in most states have a lousy record on protecting child sex abuse victims; they seem to spend more time on the unborn than they do on the hurting children who were born.  Sen. Dean Skelos is a prime example and one of the members most dedicated to keeping child sex abuse victims out of court, particularly to protect the Catholic hierarchy.

One of the Worst SOL States Learns the Wages of Unfair SOLs:  Georgia

Georgia sits with New York, Alabama, and Michigan as the worst states in the country for SOLs.  This year, it became abundantly clear how bad it is.  The Camden County District Attorney released a report in early March concluding that six men had filed credible allegations of serious and severe sex abuse victims by Pak's Karate instructor, Craig Peeples, but all of their claims were out of statute.

Their civil claims are also well beyond Georgia's parsimonious statute, because the survivors were in their early to mid thirties and Georgia shuts down civil claims at age 23.   While these men bravely came forward and the District Attorney and Georgia Bureau of Investigation dutifully investigated, it was to no avail, and Georgia's current law guarantees that Peeples can continue to train kids, and in fact still picks them up at the public schools in his karate school bus.

Last week, Thomas Ary, another Pak's Karate instructor, was tried on charges of sexually abusing a 9-year-old student and a grandchild with whom he was sharing a bed.  It is not unusual for institutions to have more than one perpetrator at work. Sadly, the jury deadlockedon the former and acquitted on the latter. If the young karate student can handle it, there is hope that the DA will try again.  During the trial, Peeples took the stand, and invoked the Fifth Amendment when asked about his abuse of the men who had credibly accused him.

A bill introduced by Rep. Jason Spencer did not make progress last year, but Georgia had moved forward on the criminal side in 2012 when it eliminated the criminal SOL.  Before that, the victim was blocked after age 23 at the latest!    With most victims needing until their 30s, 40s and even 50s to come forward, expect calls for improvement on the civil side in Georgia in the future, given the manifest injustice pouring out of Camden County.

The Road Ahead

Every state should do what Hawaii or Delaware have done, and may well do so, as public knowledge about the facts of child sex abuse grows and legislators reach the tipping point where they just can't defer to the Catholic bishops on the issue of child sex abuse any longer.

Until then, the Massachusetts model— if  it applied to everyone who made the abuse happen, whether perpetrator or institution--would be a signal achievement in many states.  The legislators of Alabama, Georgia, Michigan, and New York need to look beyond their borders for a better world for their children, because their current SOLs in contrast appear to have been drafted in the Stone Ages.

There are also plenty of other states, as well, with somewhat better laws, but that desperately need to revive claims for thousands and thousands of known victims, with Iowa, New Jersey, and Pennsylvania leading the way.

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Professor Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University

Web sites:
http://www.Hamilton-Griffin.com
http://www.SOL-reform.com
http://www.RFRAperils.com

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Author of "God vs the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children"

Columnist for: www.justia.com