The Other Epidemic

Posted in: Juvenile Law

As the country tries to grabble with the growing threat of the coronavirus, it is hard to believe that we have been in the midst of another epidemic for decades. It is a silent public health crisis that comes without fever, cough, or shortness of breath. Unlike COVID-19, older generations are not impacted by this epidemic, as it predominately strikes children, rendering them voiceless and permanently injured.

The victims are age-compromised. Many have pre-existing vulnerabilities—divorced families, low-income homes, and physical or intellectual disabilities. Monsters like Jerry Sandusky, Michael Jackson, and Jeffrey Epstein knew this; their grooming of kids, and sometimes parents, was highly effective. According to the research, 1 in 4 girls and 1 in 6 boys will be sexually assaulted before the age of 18. That is over 20% of our children—an alarming number. Has anyone called the National Guard? Doesn’t this warrant a State of Emergency?

What is the antidote for this public health threat? The answer—science and stronger laws that protect children and honor justice. The public needs to know about the danger. We need a legislative vaccine that protects children and prevents predators from hiding and festering within our communities, infecting and disabling our children. The treatment is, in part, reforming the statute of limitations for child sexual abuse. Many states agree and have acted. There is a national trend to change our statute of limitations and this movement is tracked by the leading think tank, CHILD USA and its esteemed CEO and Academic Director, Professor Marci Hamilton. Last year 23 states and the District of Columbia reformed their statute of limitations. Nine of those states enacted revival legislation. This year 28 states have introduced statute of limitations reform legislation, and 14 of those states have revival language.

One of those states, Maryland, had an opportunity to pass legislation to help curb this ugly scourge, even in their truncated session that ended three weeks early. It passed through their House of Delegates unanimously, and the votes were overwhelmingly present in the Senate. Unfortunately, as is the case in many other jurisdictions, they were pressured by the powers in the Maryland Catholic Conference and the insurance lobby to hedge or cut corners on justice, or kill the bill altogether. I advocate for child protection legislation all over the country, and the “so-called” statute of repose snuck in at the 11th hour in 2017 is perhaps the most deceitful and unethical legislative move I’ve ever seen. That move is profoundly troubling, given the clear legislative intent of sponsor Delegate C.T. Wilson (The Keepers—Netflix) and others to protect kids and demand justice. Many are saying, and I agree, that the language in the 2017 bill was not statute of repose language at all. The debate continues, so the court should decide. Legislative bodies create law; the job of the judiciary to interpret the law, and to follow the intent of the legislature. Under the separation of powers doctrine, the explicit role of the courts is to interpret laws, and enforce, or hold void, laws and statutes. Legislators must know their job, step aside, and look to the wisdom of the judiciary.

Instead, Maryland considered several faulty predator-protection responses. They attempted to reduce Delegate Wilson’s legislation to band-aids on a bullet wound, weak remedies for horrific harms to children.

The first band-aid was a proposal for limits, or caps on damages. This is especially offensive given that victims of abuse suffer in perpetuity. There are no caps on economic damages in Maryland, and only one statutory cap of $830,000 non-economic damages in personal injury and wrongful death claims. Under Article 19 of the Maryland Declaration of Rights, a plaintiff has the right to a remedy for “any injury done to person or property.” The Maryland courts have generally held that a statutory provision will be upheld so long as it provides a “reasonable” remedy for the plaintiff. Additionally, the court has held that remedies that have the effect of restricting the rights of persons injured as children to recover after they reach the age of majority are unconstitutional under Article 19 of the Maryland Constitution. Piselli v. 75th St. Med., P.A. Given the life-long injuries a child experiences from sexual abuse, any cap would be utterly unreasonable and unjust.

The second band-aid was the suggestion that Maryland adopt a different standard of care for sexual abuse—gross negligence, giving the injured party another blow, a more challenging standard. Here’s how I tried to explain it to unknowing citizens; if your child is injured because the pediatrician prescribed the wrong medication, you would only need to prove that the doctor acted unreasonably. However, if that same pediatrician sodomized your child, you would be held to a much higher, more difficult standard; you would have to prove that the doctor acted with intent to injure or with utter indifference. Is that reasonable? Naturally, most Marylanders I spoke with were outraged by that proposition.

The final band-aid was limiting liability only to predators, not the institutions that negligently conceal them. We see this ridiculous suggestion in other jurisdictions; thankfully most are not buying it! We do not offer a blanket excuse for negligence by institutions for other civil claims; why would we do so for the sexual abuse of children?

All of these arguments had one aim—protect predators and the institutions that conceal them, thereby allowing this epidemic to linger and spread.

Maryland lawmakers passed many “essential” bills during the rush, well over 500 bills were passed in the last five days. Nonetheless, when it came to justice for victims and child protection, the Senate leaders yielded under pressure from lobbyists and threats of febrile filibusters. So in the end it didn’t matter, the attempts to chisel away at justice were entirely unnecessary; house bill 974 was left without legislative oxygen, to die in the Senate. The Maryland General Assembly adjourned sine die; however, lawmakers plan to return in late May for a special session. Let’s hope they follow the national legislative trend and shine the full cleansing light of truth on this problem because a cheap mask of thin permeable law will not protect children or notions of justice from this other ongoing epidemic.

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