Miracles in Child Sex Abuse Statutes of Limitation Reform: Three of the Worst States Are Stepping Up

Posted in: Criminal Law

Since the Boston Globe revealed the pattern of institutional child sex abuse in the Spotlight series, the question has been: what can we do for these victims? The victims’ stories are heartbreaking, and the numbers shocking. They assumed no one would listen to them and, worse, no one cared what happened to them; they suffered the fallout of child sex abuse: depression, PTSD, addictions, and life challenges.

While the victims bravely stumbled through life, powerful men in monumental institutions were ruling the world. The public gasped when they read the Spotlight series. Cardinal Bernard Law had overseen the Boston Archdiocese, an institution that permitted and abetted child sex abuse by a priest and member of NAMBLA, Fr. Paul Shanley, and a priest who, in his 80s, was still actively seeking children, John Geoghan. Penn State’s beloved Joe Paterno, a paragon of virtue, and President Graham Spanier ignored signs that Jerry Sandusky was sexually abusing boys, who were delivered to him through his own charity for needy boys, Second Mile, and the summer football program. The dominoes picked up speed as the facts of the Catholic, Boy Scout, and Penn State cases were covered in the press, leading one vaunted institution after another to face charges of covering up child sex abuse: boarding schools, public schools, schools for the deaf and children in need of special education, summer camps, churches, the confessional, synagogues, temples, megachurches, sports teams, and, finally, families.

As the world understands now, the hallmark for the victims seeking justice was that they couldn’t. The deadline for criminal charges and civil claims typically expired long ago. The solution was obvious: just roll back the statutes of limitations (SOLs). I literally wrote Justice Denied: What America Must Do to Protect Its Children thinking it was a no-brainer. And for some states it was: States like California and Delaware acted quickly, and others followed, like Hawaii and Minnesota. Good laws also came out of Massachusetts and Connecticut. In each of these states, they took care of the victims from the past. The line of victims who had been locked out of the courthouse were finally permitted entrance to file civil claims (it was too late for the criminal charges) through the revival of expired civil SOLs.

For every action, though, there is an equal and opposite reaction. The lobbyists for the Catholic Church, Baptists, Orthodox Jews, Boy Scouts, chambers of commerce, teachers’ unions, insurance lobbyists, and even the ACLU mobilized and pushed back. For as many states that did the right thing by victims, there are states that still have not. The absolute worst are Alabama, Georgia, Michigan, Mississippi, and New York.

Three of the Worst States Take Action This Year

While Alabama and Mississippi remain entrenched in backward SOLs, Georgia, Michigan, and New York appear poised to finally do something right for their victims. Georgia and Michigan are struggling to reach the justice achieved in the eight states that have revived expired civil SOLs, and would be well-advised to revert to ordinary window legislation rather than inadequate windows that require revisiting in future, an experience Georgia is already having.

Georgia: Window Take Two

From 2015 to 2017, Georgia opened a window but it was defective: it was limited to lawsuits against the perpetrator. Why? Because the Chamber of Commerce, Baptist, and Catholic lobbyists successfully persuaded lawmakers to shield the institutions responsible for abuse. They operated largely in the background, but they won. No more than a dozen cases were filed. The civil SOL was left at age 23, so that when the window shut July 2017, Georgia moved back to being among the very worst.

Rep. Jason Spencer, who is leading the SOL charge, has now introduced legislation that would extend the civil SOL to age 38, create a four-year discovery rule, and enact a one-year window good against institutions. It passed unanimously in the Georgia House.

The bill is not perfect, as the forces for institutional immunity continue to shove back against the victims. You can read my analysis here. Georgia should save itself some time and remove the window language that will make it virtually impossible to succeed against institutions. If a new window once again results in a tiny number of cases, I guarantee the survivors and Rep. Spencer will be back. They aren’t going anywhere.

Like most states, Georgia already eliminated the criminal SOL, but the civil SOLs are in desperate need of reform. Right now, a victim has until age 23, which means only about a third of victims have any chance, because 2/3 typically come forward later in life or not at all, as this chart on Delayed Disclosure shows.

Michigan: The Nassar Sex Abuse Scandal Spurs Action

The Larry Nassar scandal has spurred Michigan lawmakers, who have resisted SOL reform, to pass a package of reforms to prevent child sex abuse and aid victims. Michigan eliminated the criminal SOL for first degree felonies in 2001. However, that left in place very short SOLs for all other sex crimes against children: ten years from the occurrence or age 21. A bill that passed out of a Senate committee unanimously would extend the age to 48 for second- and third-degree felonies, which is a major step forward.

On the civil side, the SOL would be extended to age 48, and it would apply retroactively to all abuse since 1993. This is a truncated window, which would still leave the vast majority of victims without justice. Prospects are not clear even for this small window as the Catholic Church and the ACLU are arguing that the revival of past claims is a violation of due process. They are not correct under Michigan law. For a list of states where it is constitutional or unconstitutional to revive the civil SOLs, look here. There is little doubt that a window that only goes back to 1993 will pass constitutional muster. Unlimited windows have been upheld in every state where enacted.

New York: 14 Years and on the Precipice of History

This feels like the year for New York, which has set a record for dilly dallying on justice for child sex abuse victims. Starting 14 years ago, Assemblywoman Marge Markey led the charge to educate members and the public about SOL reform. She has since retired, but she was relentless. Each year, more lawmakers, survivors, media, and powerful people have joined in support of the Child Victims Act to the point that today 90% of New Yorkers favor legislation that permits victims to file civil lawsuits. The issue is covered daily in the press, and it is increasingly clear that the time has come for New York to move forward from its ridiculously short civil SOLs, which have meant that most of the victims in New York have had no chance at justice. Claims against perpetrators are capped at age 23 and against institutions at age 21.

Assemblywoman Linda Rosenthal and Senator Brad Hoylman have introduced a bill that would extend the criminal SOL by 5 years; the civil SOL to age 50; and enact a one-year window. Predictably, the Catholic bishops are not enthusiastic, but most New York dioceses have set up compensation programs that are paying not just the victims in statute but even victims who were abused decades ago. Thus, the bishops have eroded their argument about “stale memories” given that they are paying on such old cases. It was always a makeweight argument anyway, with no empirical substance.

The governor has introduced a bill into the state budget process, which makes it more likely the Child Victims Act will be passed this year. It eliminates the criminal SOLs for all felonies and some misdemeanors; extends the civil SOL to 50 years beyond the date of the abuse; and includes a one-year window. Obviously, there will be some negotiation on the criminal extension but there is agreement on the civil extension and window.

It’s up to the New York Republicans, who have blocked SOL reform from the beginning, to make a good-faith effort this year to negotiate a Child Victims Act that will shift the balance of power away from the predators, who are the beneficiaries of the current regime, to the victims and children. Every year these bills languish is another year that pedophiles have the cover they need to prey on more New York children. As one of the founding members of New Yorkers Against Hidden Predators, I can attest that it’s just a fact: it’s either predators or children. Republican leadership is responsible for the immunity New York’s pedophiles now enjoy. The pressure is mounting.

The good news for Georgia, Michigan, and New York is that they are finally taking up the inevitable. To be sure, each is still in the throes of a battle between those who fear justice and those who know it is necessary. Yet the logic of SOL reform for both the victims from the past and those children being abused right now is irrefutable.

Once these three states emerge into the sunlight, there may be hope for Alabama and Mississippi.