Herculean efforts across the United States have been undertaken to eliminate the threshold legal barrier for most sex abuse victims: the statute of limitations. Some states have been very successful like Delaware and Minnesota while others remain mired in a system that blocks the vast majority of survivors like New York. To their credit, advocates, survivors, and their supporters continue to press even in the most backward states.
While a legislative push can be empowering for many survivors, it can also be traumatic when legislators irrationally reject the survivors’ pleas for justice. For example, Pennsylvania senators have professed allegiance to a non-existent Pennsylvania constitutional doctrine to avoid passing a bill that would revive expired SOLs for those who were shut out of the system. It is a cruel position that was captured beautifully in this political cartoon.
The bad news—or at least the news that is needed to put the SOL reform movement in context—is that once the SOLs are pushed back and a survivor is permitted to cross the moat surrounding the courthouse, there are too many other laws that, like short SOLs, make access to justice difficult. They are in effect predator friendly and child-endangering.
What is needed is a child-centered approach in the legal system, which takes into account the science of child sex abuse that is being built by pediatricians, child psychiatrists, psychologists, and sociologists, and traumatologists. Ignorance fueled by denial has been responsible for crafting a predator-friendly system, but we now have enough science to intelligently craft public policy so that it no longer actively aids and abets the wrong side in this war. The current gauntlet sex abuse victims face needs to be de-constructed, and reforms are needed in numerous contexts. In other words, if our children are to be protected, the SOLs are just the beginning.
SOL Reform for Two Distinct Populations
The SOL reform movement has progressed to the point where it is quite clear that there are two distinct groups of survivors in need of legal reform. First, there are those who were unintentionally, but definitely, deprived of justice: the ones who were abused in the past, failed to meet the short SOLs, and who need a legislative fix now. The legal system has frozen them in their pain. This is a finite set of individuals, and for those who seek justice, the only legal solution is to revive their expired civil SOLs. They typically have no options to press charges (although it is in their interest to report their abuser to the authorities so that serial predators can be identified).
Second, there are the children abused now and those victims not yet beyond the state’s SOL. For this group, the good news is that roughly two-thirds of the states have eliminated the criminal SOL, at least for felonies. (http://sol-reform.com/silos.pdf ) The bad news is that in many states, civil SOLs remain short, and so they cannot sue for damages. They need the elimination or at least extension of the civil SOLs to shift the cost of their abuse onto those who caused it.
Public School Victims Face an Additional and Shorter Deadline than the SOL: The Notice of Claim
While private schools, sports organizations, and religious organizations have been under the microscope recently, public schools have not received the sustained examination they deserve. This era for public schools reminds me of the 1980s in the Catholic Church cases when random cases would appear but no one had yet seen a pattern of abuse and cover up. A significant problem for survivors of abuse in a public school is that the statute of limitations is just one deadline they must meet. There is typically a much earlier time limit, called the “notice of claim.” For example, in New York, when someone intends to sue the government she must first provide the government (including a public school district) with a “notice of claim.” That notice must be filed within 90 days of the claim arising. Then, a lawsuit must be instituted not less than 30 days but not more than one year and 90 days after the incident.
Such notices are common across the states and they can operate like a statute of limitations so that missing the notice deadline can doom the suit. They run counter to child protection for all the reasons that overly short SOLs do.
Reporting Statutes Are Ineffective or Too Narrow, Missing Current Abuse but Also Depriving Victims of Corroborating Evidence in Later Cases
Mandated reporting statutes are intended to create a safety net for children, and public school teachers are on the front lines of those who are mandated to report suspected abuse (along with doctors and other health care professionals). The reporting statutes, however, are often ineffective and/or teachers are unclear what triggers a report. That means a child can be exhibiting the signs of abuse but no adult helps the child. In addition, there are irrational carve-outs to reporting statutes in numerous states. In New York, for example, private schools are excluded from having to report suspected abuse to the authorities. Some states require clergy to report, while others do not.
The holes in the mandated reporting system also creates missed opportunities for a survivor who later brings criminal charges or sues. While reports are almost always confidential as to source, the very fact of a report should be able to help if the victim decides to pursue justice at a later time. The information gathering systems on such reports are still being fully developed and their potential for assisting victims have not yet been fully uncovered.
State Privilege Law Often Permits Religious Organizations to Avoid Reporting
Gathering corroborating evidence of sex abuse is challenging for many reasons including the power differential between the victim and the perpetrator and the way in which such abuse affects a child. Some of the most powerful evidence would be clergy who have information about a perpetrator, but in many states there is a “confessional” or “clergy-penitent” privilege that relieves the clergy of the obligation to report their knowledge. These privileges are state-created, not necessarily First-Amendment-required. Again, this creates the possibility that children are at risk and that valuable evidence when the abuse is ongoing is not being preserved.
Tort Immunity for Teachers Under Federal Law
A little-known federal statute limits the tort immunity for teachers. The teacher is protected from liability if acting within the scope of employment, the teacher’s actions were in conformity with governing law, and the harm was not caused by willful or criminal misconduct. A reasonable reading of that would indicate that a teacher who engaged in sex abuse could be sued. But the devil is always in the details.
The last section of the provision states that the limitation on liability will not apply to misconduct that “involves a sexual offense, as defined by applicable State law, for which the defendant has been convicted in any court.” Under ordinary legal reasoning, that would mean that a teacher is protected when the conduct involves a sexual offense if the defendant has not been convicted. Between prosecutorial discretion and the SOLs, many if not most sex offenders have not been convicted, and that means this last provision opens the door for an argument that a teacher might even have tort immunity when sex abuse is involved simply because the system did not convict the perpetrator. Less liability often means less accountability.
Federal Civil Rights Claims: Sec. 1983 “Shocks the Conscience” Standard
When the government is a defendant, federal civil rights suits can be instituted, including for sex abuse. Unfortunately, the SOL of the state often controls in these federal lawsuits and so they do not open the door dramatically. In addition, the standard set by the Supreme Court is extremely difficult to satisfy: a public school violates a student’s rights when its conduct the demonstrates deliberate indifference, or “shocks the conscience.” Just read Deshaney v. Winnebago County Department of Social Services.
All sorts of sex abuse slips away under this standard, though that is not to say it is never satisfied. The Third Circuit recently ruled that it was satisfied in one of the most egregious sex abuse cases involving a public school ever reported. A woman entered a public school and was permitted to take a 5-year-old girl with her without showing identification. The girl was brutally sexually abused that day. L.R. v. Sch. Dist. of Philadelphia, 60 F. Supp. 3d 584, 592 (E.D. Pa. 2014), aff’d sub nom. L.R. v. Sch. Dist. of Philadelphia, No. 14-4640, 2016 WL 4608133 (3d Cir. Sept. 6, 2016). These are horrific facts that show just how difficult it is to sustain a federal claim against the government for sex abuse.
Suffice it to say that we have constructed a justice system not attuned to the needs or protection of children from sex abuse. No more should we be shocked by the unrolling of stories that will not end—until the system is reformed.