Sex Abuse Statute of Limitations Reform 2015 Year in Review: The Good, the Bad, and the Ugly
The movement to eliminate and revive expired statutes of limitations (SOLs) for child sex abuse made significant progress in 2015. It also inspired a new and related SOL reform movement for all rape victims, young and old, as the SOLs became a major factor in the dozens of out-of-statute allegations against Bill Cosby, as I discuss here. Finally, there is a decided trend in SOL reform that needs to be stemmed and reversed before our children will be safe: legislators’ willingness to let institutions off the hook.
The SOL reform movement is also increasingly global. There is a growing global movement to extend or eliminate the SOLs in many countries, and particularly in Australia, where the Royal Commission into Institutional Responses to Child Sexual Abuse has conducted searching inquiries into many arenas of abuse, from churches to schools to sports.
The movement also hit the big screen with the release of the award-winning motion picture, Spotlight, which chronicles the Boston Globe journalists’ path to breaking the story of the Catholic hierarchy covering up priest abuse and illustrates how the SOLs blocked justice. It also educates the public on the dynamic of sex abuse cover up—it takes a connected set of adults to ignore the serial victimization of children while powerful men protect their positions of power. Like the Cosby revelations, Spotlight educates the public about the costs of abuse and the perils of blocking justice for the deserving.
The Good: Steps Forward in SOL Reform for Child Sex Abuse Victims
Following the trends of recent years, over a dozen states considered serious SOL reform in 2015, and a number of them made significant progress. As I discussed in my half-year review, here, Georgia took the most remarkable leap forward, while Pennsylvania and New York continue to be controlled by the viselike grip of the Catholic bishops, or, in other words, stalled. For a snapshot of all of the states in 2015, look here.
Other states continued to make incremental improvements as Florida eliminated its criminal SOL for 16- to 18-year-olds; Indiana extended its criminal SOL to age 31; and Utah eliminated the civil SOL against the perpetrator. While each of these reforms left much to do in each state, they were good developments for child protection and will identify hidden predators in the future.
In addition, Sen. Harry Reid (D-Utah) introduced a federal bill, S. 2397, to incentivize the states to eliminate their child sex abuse SOLs. It operates by increasing funding under the Child Abuse Prevention and Treatment Act if a state extends or eliminates unexpired civil or criminal SOLs. For the vast majority of victims in the worst states—Alabama, Michigan, Mississippi, and New York—it is weak tea, as it leaves locked out millions of victims whose claims expired long before they could get to court, but it is still a good idea.
This is also a first step toward creating some consistency across the United States. Right now, whether a victim has a shot at justice depends on the law of the state in which the abuse occurred. Again, the victim is at a serious disadvantage due to factors beyond her or his control.
The Massachusetts Supreme Judicial Court released a landmark opinion upholding the constitutionality of reviving expired civil child sex abuse SOLs. The Connecticut Supreme Court had issued a similarly strong opinion upholding the retroactive SOL earlier in 2015. There is little question that this is the legal trend, and that the arguments against constitutionality simply don’t hold water, as I explained in an amicus brief on behalf of children’s groups in the Massachusetts case.
Minnesota worked through its second year under its three-year window, which will close on May 25, 2016. And Hawaii’s survivors had another year under the 2 + 2-year window, which opened in 2012 and expires in April 2016.
In both states, my concern continues to be that Catholic victims seem to have gotten the message that they need to step forward before they are shut out again, but many other victims from other arenas remain silent. That is especially true of female victims.
It is actually ironic that so many of the cases revealed by revival, or retroactive, civil SOLs have centered on male victims. Yet, girls are at greater risk of being abused, and there are decidedly more female victims. These are just facts. This means that we need better education and support for female child sex abuse victims at the time that SOLs are revived or eliminated. It is my view that we have heard from only the tip of the iceberg of claims by girls who were abused by coaches, teachers, family, and others.
A significant number of states currently have opportunities for justice for victims whose civil SOL expired, including Connecticut, Georgia, Hawaii, Minnesota, Connecticut, and Massachusetts. These states are doing the most to defrost the iceberg of information on hidden child predators. They are also proving that reviving expired SOLs for child sex abuse does not result in an avalanche of cases clogging the courts. Far from it. At the same time, hidden predators are being revealed to the benefit of parents and communities. The University of Georgia has taken justice one step further, as it has started the first child sex abuse clinic, which will assist survivors who might otherwise not be able to sue and publicly identify their perpetrator, because they don’t have significant damages or only seek injunctive relief.
The Bad and the Ugly: The Trend That Must Stop for Children to Be Safe and Hidden Predators to Be Identified: Protecting Institutions that Shield Pedophiles
There is a fact at the core of this movement: sex assault survivors are disabled from coming from forward by the power and threats of their perpetrators, wrapped up in humiliation and shame. That means they need time, and short SOLs benefit the defendants. There are frequently two types of defendants: individual perpetrators and the institutions whose failed or nonexistent policies aid and abet them. As the logic of SOL reform ineluctably has spread, it has become increasingly easier to make the case for revived or no SOLs against the perpetrators. Pedophiles do not have their own lobbies. That has opened the door to legislators’ willingness to eliminate and revive the SOLs against the individual perpetrator.
This development should not be underestimated, because even ten years ago many Americans believed that there are few perpetrators and that children frequently make up stories about abuse, and, therefore, the SOLs need to be short to protect adults. Both of these assumptions are false. There are many perpetrators, many victims, and children rarely concoct sex abuse stories and, therefore, eliminating and reviving SOLs against the perpetrator is a necessary step to real justice and child protection.
In contrast to the individual pedophiles, the institutions—who routinely put image and finances ahead of child safety—do have powerful lobbyists, and they deploy them to keep victims out of court. Child protection will not be achieved until all institutions are incentivized to protect children first and their reputations and finances second. That only happens one way in the United States: the legal system. If they are liable, they straighten up and fly right. If they are immune, they continue to muddle around with “winning” the public relations campaign at the expense of the child sex abuse victims they created and children in the future.
Insurance lobbyists often form legislative bonds with these child-endangering institutions because they like paying on the premiums they collect about as much as a newt needs kneecaps.
Therefore, these powerful institutions, from the state Conferences of Catholic Bishops, to Agudath Israel, to the Chambers of Commerce (yes) to the teachers’ unions and the insurance lobbies in each state will cut a deal: revive expired SOLs against the perpetrators but not against us.
That is why in Massachusetts, the state revived the civil SOL against perpetrators until the victim is age 53 but enacted a more crabbed revival against institutions (discovery plus seven years, which not accidentally protected the Catholic bishops in most cases) and in Georgia, the two-year window is open against the perpetrators and individual aiders and abettors but the “extension” against institutions was a measly new rule: discovery plus two years. In Utah, the Church of Jesus Christ of Latter-day Saints managed to avoid all liability by only “permitting” the SOL to be reformed against the individual perpetrators.
The result in Georgia, where the SOL until 2015 was a pathetic 23 years of age, has been that institutions have been largely clueless about child protection.
Right now, a victim abused at any time can sue a perpetrator and those who aided and abetted the abuse, but cannot sue the institution responsible unless the abuse happened on or after July 1, 2015. When a church was named in a Georgia lawsuit this year the response read like a script written by the Catholic bishops from ten years ago. They have yet to figure out that victim-blaming and doubting undermines their credibility. Georgia legislators need to revisit the issue, because the institutions obviously have not been held to account and are demonstrating the need to make them accountable.
The culture of abuse in Georgia is ingrained after decades of ridiculously short SOLs, and only the courts can clear the way for the institutional reforms needed to make children safe. As of July 2017, the state returns to age 23 in all cases, and the doors of silence will slam once again on the victims unless state legislators return to the issue.
It’s really simple: child safety depends on legislators holding institutions—not just individual perpetrators—to account for child safety. As long as these institutions can keep their secrets, they will protect active pedophiles and demonize victims to protect their interests. The institutional lobbyists against SOL reform are the hidden predators’ best friend.
The Charges Against Bill Cosby Make the Case for SOL Reform Regardless of Age
The recent criminal charges against Bill Cosby have revived the national discussion about statutes of limitations in sex assault cases. He had slipped past over 50 women’s allegations due to expired criminal (and civil) SOLs, but finally a prosecutor took the side of the female victim against this entertainment titan, with less than 2 weeks to spare before the criminal SOL would have expired, as I discuss here. Justice has not been served for all but one of his victims, and what is the reasoning that protects him while endangering the next victim? It is the logic of male privilege and power. The same faulty logic that has kept children at risk for centuries.
Let’s drop these artificial legal technicalities for sex assault, regardless of the age of the victim.
Where there is evidence beyond a reasonable doubt, the prosecutors will be able to do their jobs and stop these perpetrators in their tracks. And in the civil arena, the costs of the abuse, which are steep, can be shifted from the victims to those who caused the abuse. That’s called justice.
Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts, www.RFRAperils.com, and statutes of limitations for child sex abuse, www.sol-reform.com. Professor Hamilton blogs at Hamilton and Griffin on Rights. Her email address is firstname.lastname@example.org.