Thursday, June 11, 2009

Abuse scandals: states revise statute of limitations

The Fight Over Bringing Old Accusations to Court
Sex-Abuse Scandals Lead States to Revise Statute of Limitations; Opponents See Risk in Relying on Stale Evidence
If it is too late to bring a criminal case against a child abuser, should it be too late to sue in civil court?
A handful of legislatures have grappled with that question, and a pair have said better late than never.
Two states have created litigation windows that open up a new time period for victims of childhood sexual abuse to seek redress in civil courts. In 2002, California allowed victims one year to file cases against their abuser or the employer, no matter when the abuse had occurred. Delaware followed suit in 2007, giving people two years to bring accusations in civil court. This year, New York state legislators have been debating a one-year statute. Other states are mulling similar measures.
Statutes of limitations, for criminal or civil actions, help avoid circumstances in which evidence is incomplete, documents have disappeared and testimony relies on faded memories.
But triggered by high-profile scandals of abuse at the hands of Catholic priests, some of which occurred decades ago, a few states have seen the need for "window laws'' that temporarily open the courts again to allow past grievances to be remedied through civil actions, though not criminal prosecutions. Supporters say these laws can benefit people who might not have known years ago or didn't disclose that they had been harmed.
Yet, such laws inevitably raise questions of constitutionality and fairness.
Defense attorneys say many of the abuse cases that were brought in California and now in Delaware name perpetrators and religious superiors who are dead or retired. The only point, says some attorneys, is to wrench money from the Catholic church. "It's almost impossible to defend the cases," says Mark Chopko, the former counsel for the U.S. Conference of Catholic Bishops, who says he has been a consultant on more than 1,000 abuse cases.
The Most Rev. Nicholas DiMarzio, bishop of the Diocese of Brooklyn, N.Y., has been an outspoken opponent of the bill in Albany. "Clearly this is aimed at the Catholic Church," he said. "People believe we have deep pockets and are responsible for individuals that might have been representing the Catholic Church." Sexual abuse is a much bigger problem in public schools, he said.
The issue is the subject of debate beyond the Catholic Church. In New York, the proposed law to create a one-year window on civil suits is being supported by some Jewish groups, who say that childhood sexual abuse is a little-known problem in the Jewish community. But opponents say the legislation would force Jewish institutions into settling cases from years past, bringing financial ruin to schools and synagogues.
Legislatures have created window laws before, particularly when people have become sick years after the harm was caused. State laws passed after the Vietnam War allowed lawsuits by veterans and their families who had developed cancer and other ailments linked to Agent Orange. Some states have created window legislation for those harmed by asbestos, injured by medicines taken by their mothers during pregnancy or exposed to environmental dangers, such as the polluted New York state neighborhood around Love Canal.
Courts have generally upheld statutes of limitations, in part, to give potential targets of lawsuits a sense of relief, known as "repose" in the court system. "If 25 years have gone by and a defendant can be sued, there's an aspect of this that can seem unfair," says Peter H. Schuck, a professor of law at Yale University, though he doesn't have a position on the legislation.
A more practical rationale underlies the notion of time limits, too. The idea is to bar lawsuits for acts performed so long ago that defendants no longer could mount a reasonable defense. A business owner, for example, would have difficulty building a defense against an accusation, filed 30 years later, by a former employee who says he got hurt on the job, long after witnesses scattered and the company's paperwork was discarded. Says Mr. Schuck: "You don't want legal disputes to be resolved on the basis of stale evidence."
There are some crimes that are viewed as so heinous, namely first-degree murder, that they often don't have a statute of limitations. In many jurisdictions, murder charges can be brought whenever prosecutors believe they have enough evidence, no matter how much time has passed.
But the criminal charge of rape or sexual assault is subject to a statute of limitations in many states, though often a relatively lengthy period, such as 10 years in some states.
Efforts to open a "window" to criminally charge people for rapes committed years ago have met with resistance in court. In 2003, the U.S. Supreme Court rejected retroactively extending time limits on criminal prosecution of sexual abuse against minors. The court said California unlawfully changed the legal consequences of the crime after the fact. The Supreme Court chose not to take up the issue of civil lawsuits, but California state courts have upheld the constitutionality of retroactive civil actions.
The California legislation ushered in more than 800 lawsuits, compelling the Archdiocese of Los Angeles to issue a report that named clergy who had been accused of abuse. Some who were still working in ministry were removed from their posts. That diocese alone paid a settlement of more than $660 million in 2007 to people who said they had been abused.
Plaintiffs attorneys say that the nature of sexual abuse -- which some victims, such as children, are too ashamed to report -- compels state governments to give victims an added legal opportunity to confront their abusers.
The California law ushered in litigation that revealed the names of alleged perpetrators and compelled schools, dioceses and other organizations to handle abuse complaints more quickly and openly, says Marci Hamilton, a Cardozo Law School professor and longtime advocate of lifting limitations on abuse cases.
Matthias Conaty, 40 years old, who says he was abused by a Capuchin Franciscan friar starting when he was 9, helped lead the effort to get the Delaware law passed. Last year, Mr. Conaty sued his alleged abuser, religious orders, a school and the Diocese of Wilmington, accusing them of gross negligence. Mr. Conaty is seeking unspecified monetary damages and the release of all documents related to the alleged abuse of children.
An attorney for the diocese couldn't be reached for comment on the case, which is still pending. An attorney for the friar said she had no comment on Mr. Conaty's case.
"It's really in the public interest because it's about protecting children today," Mr. Conaty says. "Some institutions have changed the way they screen people. They've been much more responsive to small complaints."

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