Earlier this year, a bill was introduced into the California Senate that would extend the statute of limitations for victims of childhood sex abuse to sue organizations connected to the perpetrator.
In its original form, the bill would have extended the statute of limitations until the alleged victim was 48 years old. After pushback from the Catholic Church, USA Swimming and others, the bill was somewhat weakened, allowing certain victims to sue in a one year period following enactment.
USA Swimming made headlines when it hired a lobbyist to oppose the legislation. The organization claimed the law was unfair because it didn’t include the perpetrators themselves or public institutions, both of which victims’ advocates say are covered in other legislation. Executive Director Chuck Wielgus also said the group has a responsibility to protect its members.
Many have drawn comparisons between USA Swimming and the Catholic Church because, like that institution, it has seen a series of molestation convictions among its members and has been accused of protecting alleged abusers. However, experts say USA Swimming has not invested nearly the resources to oppose the California bill as the Catholic Church has across the country.
But the issue isn’t limited to one piece of legislation. For activists seeking to promote victims’ rights, expanding the statute of limitations (often called SOL) is a key strategy.
The idea of placing deadlines on litigation came from across the pond with the founding fathers. Even then, statutes varied depending on the severity of the crime. For example, there was no SOL for pressing murder charges, but for smaller issues, such as a property dispute, the time frame was relatively short.
In many states, the statute of limitations is applied differently to children. With adults, the clock starts after an incident occurs, but if the victim is a minor, it doesn’t start until the legal age of maturity. Many states also have specified statutes specific to childhood sexual abuse, an idea that has developed over the last three decades. “At one point, they were as onerous because the child had six years from the date of the act, so if they were assaulted as a six-year old, they might only have until age 12,” says Marci Hamilton, a professor at the Cardozo School of Law in New York, with an expertise in statutes of limitations.
But as tragic incidents gained media attention, states would add a few years.
“It’s been going on since the 1980s, but as sexual abuse and institutional sexual abuse have gotten so much more attention, the pace and interest have picked up,” says Jeff Dion, deputy executive director of the National Center for Victims of Crime, the Washington, D.C. organization that sponsored the California bill. “The fact that more and more of these abuse scandals come to light sort of increases ... public pressure to address this issue.”
Hamilton also attributes the progress to changing attitudes about the rights of children.
The continued emphasis on statutes of limitations and their role has been demonstrated in the past few years by legislation in several states. Earlier this year, Minnesota and Illinois completely eliminated the SOL for civil suits involving childhood sexual abuse. Florida, Delaware, Maine and Alaska removed theirs in recent years, and SOL reform bills are pending in New Jersey, Pennsylvania, New York and Massachusetts.
Part of the reform pursued by advocates involves a strategy called window legislation. These bills specify a period in which victims whose time had previously run out because of an old SOL are allowed to sue. This often is the second part of a one-two punch. First, the SOL is changed in a state; then a window is legislated, allowing those who otherwise wouldn’t be able to sue to file. Other times the window legislation is used in states that are proving resistant to removing SOL completely.
The SOL is important to victims’ rights groups for two reasons. First, many molestation survivors don’t make the connection between the abuse and resulting addictions and other disorders until well into adulthood.
“You have to be an adult to understand that your childhood was stolen from you,” Hamilton says. “And in most cases, the abuse itself triggers post-traumatic stress disorder and behaviors that are intended to stop the pain. Those behaviors make it even harder to come forward. … All the problems that come out of having been sexually abused slow down the ability of the victim to come forward.”
For this reason, victims’ advocates are working to see statutes of limitations dropped completely. “I understand why someone who doesn’t know how this works might say, ‘You don’t get a free pass,’” Hamilton says. “But once you learn the science of sex abuse, it becomes very clear that it’s cruel for us to have statutes of limitations.”
However, in states that are reluctant to remove an SOL completely, victims’ advocates seek to start the clock after the time of discovery, or that point at which the adult has drawn the connection between the crime against them and any personal damage they have suffered. In states using this “discovery rule,” the plaintiff must prove that the connection was made no more than a certain number of years before a complaint was filed. Proof often comes in the form of documentation from a therapist.
The second reason statutes of limitations play so prominently is victims’ advocates believe some institutions have abused the SOL, withholding information until time runs out.
When it comes to criminal charges, a victim is restricted by the SOL that was in place at the time of the crime, even if it is eventually lifted. But SOL’s can be retroactively applied in civil court. This is important for victims’ advocates, who say that civil cases can help identify abusers. Once the perpetrator is named, other victims may come forward, they say. And with the burden of proof being lower in civil courts, these cases can be easier to win than criminal cases.
The other side
USA Swimming doesn’t intend to combat any other SOL legislation on the books, according to organization officials.
“We have no plans at this time to advocate for or against any other proposed state legislation,” Wielgus says.
Still, those who have defended perpetrators or are charged with protecting organizations question the merits of extending the statute of limitations indefinitely.
The statute of limitations was created to help the accused get a fair trial by having access to evidence, which erodes over time. To take that away turns a trial into a he-said/she-said scenario, they contend.
“The thing about child abuse cases specifically and sexual abuse is they’re crimes of intimacy,” says Joseph Lesniak, a former special victims’ prosecutor who worked on the Sandusky case and now holds a private practice in Media, Pa., handling both defendants and plaintiffs. “There are usually only two witnesses — the victim and the perpetrator. So getting physical evidence is very hard after the fact, and memories fade. The whole reason why the statute of limitations was created was because memories fade, evidence goes away. ...”
While it is true that the plaintiff has a more difficult time proving a crime was committed against them decades ago, the defendant becomes marked from the mere accusation, says John R. Garey, P.A., a defense attorney and former deputy attorney general in Dover, Del. “All it takes is an accusation,” he says. “All it takes is the testimony of the accuser, if the jury or fact finder believes that person.”
In addition to the philosophical arguments against removing the statute of limitations comes the practical, as USA Swimming cites in its opposition of the recent California legislation.
“This bill could have an immediate impact on our 50,000 members from 366 swim clubs in California through increased insurance and liability costs, potentially limiting or eliminating programs and pool time,” Wielgus says. “USA Swimming provides insurance to our membership (coaches, swimmers and clubs) who depend on it to manage clubs and access pool time.”
Besides costs comes the issue of who covers a claim — the insurer that the organization used when the claim was filed, or the one employed at the time of the alleged occurrence?
Institutions are always sensitive to the possibility of attracting lawsuits because of deep pockets. Additionally, civil cases don’t require as steep a burden of proof as criminal ones, which may make sense, but also increases the chances of innocent parties being mistakenly found guilty.
In Lesniak’s state of Pennsylvania, the civil statute of limitations is currently five years, which he thinks is too short. “But I think going to age 55 to 60 is way too long,” Lesniak says. “What it comes down to, then, is trying to find something in the middle that’s fair. And I’m not sure we’ve found that yet. I’m not positive I know what the answer is.”