The Drumbeat of SOL Reform

Updated:
Posted in: Criminal Law

The movement to reduce and eliminate child sex abuse statutes of limitations (SOL) has been very busy in the last year and shows no signs of slowing down. While Congress has batted around a few bills addressing the issue, none have made it very far, and the real action is in the states, making this a true 50-state experiment in the “laboratories of democracy,” to borrow Justice Louis Brandeis’s phrase. Predictably, the pathway to full SOL reform in each state is distinctive.

While the arguments tend to repeat themselves across state lines, the politics do not. Each state has its own political map, history, and priorities. Indeed, each state has its own people, and legislators and governors have their own constituents. Thus, there is no “game plan” for every state. All politics is local and this has never been more true than when it comes to SOL reform–even if it is the surest path to identifying unknown pedophiles, ephebophiles, child predators, and traffickers.

The fact of the politics of child protection is no reason to despair but rather a moment to understand the dynamics of putting in place this critically important tool; the great civil rights movements all encountered resistance by established powers. The politics often leads to hyperbole by the entrenched organizations; they fear change even if it is child-protective. They preach disaster to legislators willing to listen. However, the bottom line for every state—whether it has extended or eliminated the civil or criminal SOLs or has revived expired SOLs—is that the sky has not fallen. Instead, some clouds have parted and rays of sunshine have illuminated what the people need to see: the predators lurking in their midst.

I believe that eventually the SOLs for child sex abuse will be eliminated in every state just as there are civil rights laws banning race discrimination in every state. The internal logic is working itself out. For many survivors, understandably, the pace is not fast enough and I empathize, because the logic is so self-evident. But the progress being made nationwide is a testimony to a brighter future.

Some states like Tennessee and Georgia have only been able to take small steps at a time, while others like Delaware and Minnesota have embraced in very short order the elimination of civil and criminal SOLs and a revival of expired SOLs (good against perpetrators and institutions). Then there is Guam, a territory of the United States, which first enacted legislation to revive expired SOLs but no one came to the courthouse. In 2014, victims of Bishop Anthony Sabian Apuron began to come forward.

SOL Reform in 2016 and 2017

In 2016, Guam became the world’s leader on SOL reform when it simply erased child sex abuse SOLs backwards and forwards. The result is that nearly 50 Guam survivors have come forward so far and the dangers to children hidden from plain sight are coming into focus. Bishop Apuron and Fr. Brouillard have been sued by many. Even a woman has come forward, defying the false assumption that the abuse by priests is limited to boys.

Beyond Guam, there was serious activity in a number of states in 2016, as you can see here: California eliminated its criminal SOL while Maryland and Tennessee extended their civil SOLs, and Minnesota’s 3-year window closed with over 900 victims coming forward and the identification of over 125 previously unidentified perpetrators. Utah enacted a revival statute against perpetrators. The surprising one on this list is Maryland, where the power of the Catholic lobby is unparalleled in the rest of the country and where the bishops have routinely fought even modest improvements in the law of child protection. But Maryland is also the example that proves my point that SOL reform will happen regardless.

2017 is also busy with extension bills percolating in Nebraska, Oklahoma, and Washington state. Pennsylvania and New York SOL bills are mired in politics, which, to be fair, is not unusual for any issue in either state.

Over a Decade of Demanding SOL Reform in New York and Pennsylvania

New York is setting a record for a combination of the worst SOLs in the country and lots of legislative activity. The other three states at the bottom—Alabama, Michigan, and Mississippi—aren’t even trying. For over a decade, advocates and survivors have urged New York lawmakers in every way possible—through hearings, op-eds, press conferences, marches, lobby days, and one survivor’s heartbreaking story after another to enact comprehensive reform that would bring its civil and criminal SOLs into the mainstream. No one is trying to move New York from the worst to the best, but the SOLs have been so short for so long that it is not enough to extend SOLs into the future. There is a huge justice gap, that requires a window for the vast majority of victims, whose claims expired through no fault of their own. There is reason for hope, as Gov. Andrew Cuomo is making SOL reform a priority and a bill has been introduced in each House that contains four pillars of SOL reform: elimination of the civil and criminal SOLs, a modest window, and the elimination of the notice of claim requirement that has muzzled the sex abuse victims of public institutions. That is progress.

The most difficult hurdle in most states, including New York, is getting a bill out of a Republican-controlled Committee. For example, the New York Senate is led by Republican Sen. John J. Flanagan of Long Island, who has stonewalled on the issue to date. The ball is in his court to let Sen. Brad Holman’s bill at least get a vote on the floor of the Senate. Survivor advocate Kathryn Robb called him out in a full-page ad, asking for him to at least meet with advocates and to let the bill receive a vote. So far, all we have heard is crickets. Yet, the days when silence on child sex abuse is a safe strategy are over. The dangerous position now is to favor the predators over the victims.

Pennsylvania’s situation is different from New York’s in that the Republican Senators—in the face of so many damning grand jury reports here, here, and here about sex abuse in Catholic dioceses, Penn State, and now a private boarding school—have clearly (and correctly) concluded that SOL reform will happen. So they are passionately pursuing a bill. It’s just not the bill that will help the hundreds of victims who were the victims in the many grand jury reports. Instead, the Republican bill would help children in the future, and that’s a great thing, but it leaves many of Pennsylvania’s victims out in the cold, and that’s just not right. Like New York, there is a justice deficit. The Republican-backed bill, therefore, is little more than political cynicism: They are angling for credit for enacting the inevitable SOL reform, but they want to make sure it doesn’t touch any perpetrators, families, or institutions from before. Of course, whom are they serving (rather than the children of Pennsylvania)? The Catholic bishops, and first and foremost, Archbishop Charles Chaput of Philadelphia, who has enthusiastically—almost gleefully—lobbied to keep the victims the Church created out of court. Part of his tactic has been to foster attacks from the pulpit on the Catholic legislators who stand up for victims like Reps. Nick Miccarelli, Tom Murt, James Santora, and Martina White. That has not helped Chaput’s cause, to say the least. To quote Rep. Santora: “I had a choice,” he said. “Do I choose victims, or do I choose the rapists or the abusers? I chose the victims.” That means Chaput is choosing the rapists and abusers.

With the drumbeat of yet another grand jury report coming to fruition—this time exposing six more Pennsylvania dioceses–members of the Pennsylvania legislature, including Republicans, have reached the unavoidable conclusion that the predator choice is not tenable. Like New York, Pennsylvania is not vying for the title of best state for child protection. The current choice is between a bill that does too little and one that is worthwhile. The more victim-friendly bill is still a far cry from states like Delaware and Minnesota.

New York lawmakers might also have come to the insight that SOL reform is inevitable had New York prosecutors taken a more proactive stance and produced studies of the depth of cruelty to children like the grand jury reports in Pennsylvania. But there is a dearth of information on abuse in New York. There are individual stories, yes, but the state lacks the overarching, big-picture reports that make the case so clearly in Pennsylvania. Indeed, most of the United States is well behind other common law countries, a number of which have conducted serious studies of the depth and breadth of child sex abuse. Retired Harvard University Professor Arthur McCaffrey recently summarized reports generated in Ireland, Northern Ireland, Scotland, and Australia. It is worthwhile reading for anyone who thinks this issue is either peculiar to the United States or that it is going away anytime soon. We have a global pandemic of child sex abuse fostered by adults in trusted positions of power. American lawmakers can either decide to lead or to be condemned by history.

The meaningful difference between the slow and the fast approaches to SOL reform is how much the public learns about the unknown threats to their children and the institutions that may have covered up their knowledge of a hidden predator lurking within. In other words, there is a direct correlation between the breadth of SOL reform and the amount of child-saving information that is released to the public. Thus, the more progress a state makes toward elimination forward and backward, the sooner the public learns about the condition of child safety in the state. Conversely, the politics that slow down SOL reform retards the people’s right to know their children are in danger. All paths lead to full SOL reform in every state and at the federal level.

  • Joe Paulson

    I’m wary of this sort of thing — got some pushback but I am — but am open to it if the details are carefully crafted.